State ex rel. Ohio Academy of Nursing Homes, Inc. v. Ohio Dept. of Medicaid
2017 Ohio 8000
Ohio Ct. App. 9th2017Background
- Relators (Ohio Academy of Nursing Homes and individual nursing homes) filed a mandamus action seeking Medicaid rate adjustments to account for increased BWC premiums (claims from 2003–2004); litigation has spanned back to 2003 with ongoing discovery disputes.
- During 2008 depositions of several agency employees and a BWC official, Department counsel repeatedly objected and instructed witnesses not to answer, invoking attorney-client privilege and the work-product doctrine.
- The Nursing Home Group moved to compel answers and for sanctions; the trial court granted the motions to compel in January 2016 (stayed summaries earlier), and the Department appealed.
- The appellate panel reviewed de novo privilege issues and abuse-of-discretion for discovery generally, parsing objections by deponent and by specific question.
- The panel concluded some deposition questions sought nonprivileged, factual information (compellable), while other questions implicating privileged communications or work product were protected — resulting in a mixed affirmance/reversal and partial dismissals where issues were moot or not final.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether questions about whether an agency official met with the Director (Martin) sought privileged/work-product material | Such factual yes/no information is discoverable and not a confidential attorney-client communication | Dept. claimed answers could reveal litigation anticipation and work product | Compelled: court affirmed trial court; factual meeting existence not privileged |
| Whether identifying who attended/edited and who authored/collaborated on agency letters exchanged with opposing counsel (Weibl, Evers, Saxe) is protected | Letters were intentionally exchanged; identities and authorship are factual and discoverable | Dept. argued attorney involvement and drafting could reveal privileged legal advice or work product | Mixed: plurality found these identity/authorship questions compellable for some deponents; two judges would have sustained privilege for Weibl — result: partial affirmance and partial reversal (Weibl privileged per majority) |
| Whether communications between Department counsel and an outside BWC official (Valentino) or disclosure to non-client waived protection | Plaintiff sought content/subject of communications as relevant factual discovery | Dept. argued communications contained attorney work product or strategy and disclosure to third party could still be protected | Mixed: plurality would compel; majority sustained work-product protection for Valentino and reversed trial court on that point |
| Whether instructing a witness not to answer about whether they would be a trial witness or subject matter of their testimony (Jones) was proper | Plaintiff argued Civ.R.30 permits deposition on matters within scope; no valid privilege existed so answer should be compelled | Dept. argued procedural/witness-list issues and invoked objections | Partly compelled: some questions compelled; other aspects (future witness status) dismissed as not final/appealable |
Key Cases Cited
- Tracy v. Merrell Dow Pharm., 58 Ohio St.3d 147 (1991) (general discovery abuse-of-discretion standard)
- Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181 (2009) (de novo review for privilege issues)
- Jackson v. Greger, 110 Ohio St.3d 488 (2006) (statutory testimonial privilege applies to discovery)
- State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261 (2005) (attorney-client privilege extends to government in-house counsel)
- Hickman v. Taylor, 329 U.S. 495 (1947) (foundational statement of the work-product doctrine)
- Squire, Sanders & Dempsey v. Givaudan Flavors Corp., 127 Ohio St.3d 161 (2010) (Ohio articulation of qualified work-product protection)