2018 Ohio 4578
Ohio Ct. App.2018Background
- Ohio Attorney General sued Buckeye Impact Group, LLC and Premier Design Group, LLC under the Consumer Sales Practices Act and served interrogatories and document requests.
- Appellants asserted a Fifth Amendment right against self-incrimination and declined to provide answers or document production, making a general/blanket claim rather than question-by-question objections.
- The Attorney General moved to compel discovery after noncompliance; the trial court ordered the companies to comply.
- Appellants appealed solely arguing the trial court erred by compelling the LLCs to respond because providing discovery could incriminate affiliated individuals and no one would verify responses.
- The appellate court reviewed whether the privilege was properly invoked and whether the companies complied with Civ.R. 33 and 34 requirements for objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants properly invoked the Fifth Amendment to avoid answering discovery | AG: Discovery should be compelled; privilege not properly claimed | Appellants: Blanket privilege claim protects against self-incrimination for responses and verification | Court: Defendants made a blanket assertion and failed to object question-by-question; privilege not properly invoked, so discovery may be compelled |
| Whether an LLC can invoke the Fifth Amendment in discovery (resolved?) | AG: Not necessary to resolve LLC status if privilege not properly invoked | Appellants: LLC (and affiliates) entitled to protection from compelled incriminating responses | Court: Did not decide whether an LLC may invoke the privilege because defendants failed to properly invoke it before the trial court |
Key Cases Cited
- State v. Landrum, 53 Ohio St.3d 107 (1990) (defines reasonable apprehension of incrimination for privilege)
- In re Amanda W., 124 Ohio St.3d 136 (1997) (privilege applies in civil and administrative proceedings where disclosures could lead to criminal prosecution)
- Cincinnati v. Bawtenheimer, 63 Ohio St.3d 260 (1992) (blanket assertions of privilege insufficient; court must assess hazard of incrimination)
- In re Morganroth, 718 F.2d 161 (6th Cir.) (privilege must be asserted as to particular questions, not in advance)
- McPherson v. Goodyear Tire & Rubber Co., 146 Ohio App.3d 441 (2001) (discusses Civ.R. 33 and 34 procedures for objections and responses)