Stakich v. Russo, 2014 Ohio 2526

In 2009 a Cuyahoga County grand jury indicted Steven Stakich for menacing by stalking based on testimony from deputy Vincent Scalmato; Judge Nancy Russo was the alleged victim. Charges were later dismissed.
Stakich sued Scalmato, Judge Russo, and the Sheriff’s Department in 2011 for malicious prosecution and intentional infliction of emotional distress.
Stakich produced a copy of the grand jury transcript (which he said had been released by Judge Corrigan in the criminal case) and sought to use it in depositions of Scalmato and the assistant prosecutor who questioned Scalmato before the grand jury.
Defendants objected, asserting grand jury secrecy and privilege under R.C. 2939.11; the prosecutor’s office moved to quash and for protective relief.
The trial court found Judge Corrigan had reviewed the transcript in camera, concluded particularized need existed in the criminal proceeding, and had made the transcript available to the parties; the trial court therefore permitted use of the transcript in depositions.
Defendants appealed, challenging (1) whether the trial court’s discovery order was a final appealable order and (2) whether the court erred in permitting use of the grand jury testimony absent a journalized finding of particularized need.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court’s order permitting use of the grand jury transcript is a final, appealable order	Stakich: transcript already released by Judge Corrigan so no privileged matter remains; order will not affect provisional remedy and thus not appealable	Defendants: order affects disclosure of privileged grand jury material, which is an appealable provisional remedy	Court: order is final and appealable under R.C. 2505.02(B)(4) because it determines discovery of privileged matter and would be irreparably affected if appeal waited until final judgment
Whether grand jury testimony could be used in depositions absent a journalized finding of particularized need	Stakich: Judge Corrigan had already reviewed and released the transcript; need exists to impeach and test credibility (and transcript already in parties’ possession)	Defendants (Scalmato): secrecy of grand jury proceedings must be preserved; no journalized order shows release; Stakich failed to show particularized need and seeks impeachment only, and witnesses have immunity for grand jury testimony	Court: Abuse-of-discretion standard; because Judge Corrigan reviewed the transcript in camera and found particularized need (making transcript available), secrecy was compromised and trial court did not abuse its discretion in permitting use of the transcript for impeachment and depositions

State v. Coley, 93 Ohio St.3d 253, 754 N.E.2d 1129 (2001) (grand jury transcripts are secret and require a particularized need to overcome secrecy)
State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981) (same principle on grand jury secrecy)
In re Petition for Disclosure of Evidence Presented to Franklin County Grand Juries in 1970, 63 Ohio St.2d 212, 407 N.E.2d 513 (1980) (supervising court may disclose grand jury evidence after weighing secrecy against petitioner’s need)
United States v. Procter & Gamble, 356 U.S. 677 (1958) (particularized need recognized for impeachment, refreshing recollection, and testing credibility)
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983) (standard for abuse of discretion review)