BURNHAM, APPELLEE, v. CLEVELAND CLINIC ET AL., APPELLANTS.
SLIP OPINION NO. 2016-OHIO-8000
Supreme Court of Ohio
December 7, 2016
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2016-OHIO-8000
BURNHAM, APPELLEE, v. CLEVELAND CLINIC ET AL., APPELLANTS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000.]
Privilege—Work-product doctrine—Order compelling production of materials alleged to be protected by the attorney-client privilege is a final, appealable order—Smith v. Chen, limited.
(No. 2015-1127—Submitted May 4, 2016—Decided December 7, 2016.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 102038, 2015-Ohio-2044.
LANZINGER, J.
{¶ 1} We accepted this discretionary appeal to resolve whether an order compelling the production of documents allegedly protected by the attorney-client privilege is a final, appealable order under
{¶ 2} We hold that an order requiring the production of information protected by the attorney-client privilege causes harm and prejudice that inherently cannot be meaningfully or effectively remedied by a later appeal. Thus, a discovery order that is alleged to breach the confidentiality guaranteed by the attorney-client privilege satisfies
{¶ 3} Because appellants, the Cleveland Clinic and Cleveland Clinic Health System (“Clinic“), have plausibly alleged that the attorney-client privilege would be breached by disclosure of the requested materials, the order compelling the disclosure is a final, appealable order. Contrary to the dissent‘s view, we are not
BACKGROUND
{¶ 4} In March 2014, appellee, Darlene Burnham, brought a personal-injury action against the Clinic and certain Clinic employees. She alleged that she had slipped and fallen in her sister‘s hospital room at the Clinic in July 2012. Allegedly, an employee had poured liquid on the floor and had failed to warn Burnham of the hazardous condition.
{¶ 5} During discovery, Burnham requested identification of any person who had made statements or reports about her accident and copies of any written statements or reports. Although the employee involved was identified, neither party could locate her for deposition. Burnham also requested an incident report that she learned had been created. But the Clinic alleged that the report was not discoverable because it was shielded by various discovery protections, including the attorney-client privilege.
{¶ 6} Burnham filed a motion to compel discovery. The trial court ordered the Clinic to provide Burnham with a privilege log and directed the parties to brief the issue of privilege. Included with the Clinic‘s privilege log, filed under seal, was a copy of the report and an affidavit from the Clinic‘s deputy chief legal officer averring that the report had been generated as part of its protocol to notify the Clinic‘s legal department of events that might be the basis for legal action. After reviewing the parties’ briefs and the privilege log, the court concluded that Burnham‘s motion to compel should be granted. The court ordered the Clinic to produce the July 2012 incident report.
{¶ 7} The Clinic appealed to the Eighth District Court of Appeals, arguing that the incident report was protected by the attorney-client privilege and was not discoverable. The Eighth District dismissed the appeal for lack of jurisdiction, citing Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633. The appellate court held that there was no final, appealable order to review because the Clinic had failed to affirmatively establish that there would be prejudice resulting from disclosure of the incident report sufficient to satisfy
{¶ 8} We accepted the appeal on one proposition of law: “An order requiring production of privileged documents, conversations or other materials is a final, appealable order pursuant to
LEGAL ANALYSIS
{¶ 9} We accepted jurisdiction to clarify Chen, a case that reviewed
{¶ 10} Here, the Clinic asserts that its report is protected under the attorney-client privilege and that an order requiring disclosure should be reviewable immediately.
(4) An order that grants or denies a provisional remedy and * * * both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
A provisional remedy is defined as “a proceeding ancillary to an action, including, but not limited to * * * discovery of privileged matter.”
{¶ 11} Chen, although considering the same statutory language, involved only the attorney work-product doctrine rather than the attorney-client privilege and does not determine the outcome here.
Smith v. Chen
{¶ 12} In a medical malpractice action brought by Henry Smith against Dr. Ying Chen and OrthoNeuro (“Chen“), the trial court ordered Chen to disclose a video-surveillance recording that his attorney had prepared for use as impeachment evidence at trial. Smith v. Chen, Franklin C.P. No. 10 CV 18058 (Dec. 5, 2012). Chen had claimed that the video was
{¶ 13} The Tenth District Court of Appeals affirmed the trial court‘s order. While acknowledging that discovery orders are interlocutory and therefore generally not final and appealable, it held that it had appellate jurisdiction over discovery orders involving privilege. Smith v. Chen, 10th Dist. Franklin No. 12AP-1027, 2013-Ohio-4931, ¶ 10. The court of appeals stated that because the attorney work-product doctrine is a “qualified privilege,” an order for its disclosure is final and appealable. Id. at ¶ 11.
{¶ 14} We initially accepted discretionary review on whether an order compelling production of surveillance video created only for impeachment purposes violates the attorney work-product doctrine of
This ruling does not adopt a new rule, nor does it make an appeal from an order compelling disclosure of privileged material more difficult to maintain. An order compelling disclosure of privileged material that would truly render a postjudgment appeal meaningless or ineffective may still be considered on an immediate appeal.
(Emphasis sic.) Id. at ¶ 9. This language concerning “privilege” may seem to extend to all discovery orders. However, we emphasized that Chen involved a failure to respond to the issue being adjudicated:
Dr. Chen and OrthoNeuro have never argued, much less established, that they would not be afforded a meaningful or effective remedy through an appeal after a final judgment is entered by the trial court resolving the
entire case. They did not address the issue in any of their briefs here or in the court of appeals. The only reference to the statute defining final, appealable order that Dr. Chen and OrthoNeuro make is in their docketing statement filed in the court of appeals, in which the statute is listed as a statute requiring interpretation or application on appeal. Notably, Dr. Chen and OrthoNeuro again failed to address the requirement in R.C. 2505.02(B)(4)(b) after this court ordered them to show cause why this matter should not be dismissed for lack of a final, appealable order.
{¶ 15} In addition to the explicitly limited nature of our holding in Chen, differences between the attorney-client privilege and the attorney work-product doctrine make clear why Chen does not control the outcome of this case. The attorney-client privilege and the attorney-work-product doctrine provide different levels of protection over distinct interests, meaning that orders forcing disclosure in these two types of discovery disputes do not necessarily have the same result that allows an immediate appeal.
Attorney-client privilege v. work product
{¶ 16} The concurring justice would have us overrule Chen and treat attorney work-product and attorney-client privilege the same. But the attorney-client privilege and the attorney work-product doctrine do not share the same origins or occupy the same provisions of statutory or common law. The main purpose behind the attorney-client privilege is to promote “‘full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.‘” Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209, 210, 744 N.E.2d 154 (2001), fn. 2, quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). On the other hand “[t]he purpose of the work-product doctrine is ‘to prevent an attorney from taking undue advantage of his adversary‘s industry or efforts.‘” Id. quoting
{¶ 17} The attorney-client privilege is one of the oldest privileges recognized in the common law. Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). In Ohio, the testimonial privilege is governed by
{¶ 19} We have long recognized that the protection against discovery of matters identified as “privileged” in
Interlocutory appeal of discovery orders
{¶ 20} To show that an order for a provisional remedy such as the discovery of privileged or protected materials is final and appealable,
{¶ 21} Any order compelling the production of privileged or protected materials certainly satisfies
{¶ 22}
{¶ 23} Polikoff rejected this balancing test to determine whether a “special proceeding” existed and overruled Amato. Although discovery orders were then held to be interlocutory and not immediately appealable, we noted that it was the General Assembly‘s prerogative to expand the scope of
{¶ 24} Under the Amato standard, we had held that discovery orders that breached a protected interest in confidentiality were final, appealable orders. Humphry v. Riverside Methodist Hosp., 22 Ohio St.3d 94, 488 N.E.2d 877 (1986) (physician-patient privilege); State v. Port Clinton Fisheries, Inc., 12 Ohio St.3d 114, 465 N.E.2d 865 (1984) (informant confidentiality). The reason for finding an immediate need for review in those cases was that they
implicated underlying privacy or law enforcement interests that extended beyond any particular litigation. While an appellate court could provide some relief after final judgment from the disclosure of such privileged information, such relief could not adequately undo the extrajudicial harm done to those interests by disclosure.
Nelson v. Toledo Oxygen & Equip. Co., Inc., 63 Ohio St.3d 385, 389, 588 N.E.2d 789 (1992). Under the same standard, we determined that an order compelling production of materials allegedly protected by the work-product doctrine under
Because the work-product exemption protects materials that are peculiarly related to litigation, any harm that might result from the disclosure of those materials will likewise be related to litigation. An appellate court review of such litigation will necessarily be able to provide relief from the erroneous disclosure of work-product materials.
{¶ 25} Exposure of the information that is to be protected by attorney-client privilege destroys the confidentiality of possibly highly personal or sensitive information that must be presumed to be unreachable. Taylor v. Sheldon, 172 Ohio St. 118, 121, 173 N.E.2d 892 (1961). We have already recognized that an order compelling production of material covered by the attorney-client privilege is an example of that for which there is no effective remedy other than immediate appeal as contemplated by
{¶ 26} But the same guarantee of confidentiality is not at risk with an attorney‘s work product. And as we stated in Nelson, any harm from disclosure would likely relate to the case being litigated, meaning that appellate review would more likely provide appropriate relief. Nelson at 389. This is not to say that compelling the disclosure of an attorney‘s work product pursuant to
Limitation of Chen
{¶ 27} We were unable to explore the relationship between the attorney work-product doctrine and
{¶ 28} Finally, because responses to motions to compel may assert various claims of privilege in resisting disclosure of materials, a trial court should explain why a motion granting production has been granted. In that way, a reviewing court can determine the pertinent issues and whether the requirements of
{¶ 29} Here, although the trial court‘s order compelling the disclosure of the Clinic‘s incident report did not specify why it was rejecting the claim of attorney-client privilege or other protections claimed, it is clear from the briefing that the attorney-client privilege had been rejected and was the only remaining discovery protection being sought. Because the Clinic raised a colorable claim that its report was protected by the attorney-client privilege, the court‘s order compelling disclosure of that report was a final, appealable order.
CONCLUSION
{¶ 30} An order compelling the production of materials alleged to be protected by the attorney-client privilege is a final, appealable order under
Judgment reversed
and cause remanded.
O‘CONNOR, C.J., and O‘NEILL, J., concur.
KENNEDY, J., concurs in judgment only, with an opinion joined by O‘DONNELL and FRENCH, JJ.
PFEIFER, J., dissents, with an opinion.
KENNEDY, J., concurring in judgment only.
{¶ 31} I concur that the trial court‘s order to provide Darlene Burnham with the Cleveland Clinic‘s July 2012 incident report is final and appealable. I cannot join in the court‘s opinion, however, because its analysis is incomplete and disingenuous.
{¶ 32} Before this court‘s decision in Smith v. Chen, the law of whether a trial court‘s order to compel discovery of a privileged document was a final, appealable
{¶ 33} As a result of Chen, a split has now developed among the appellate districts. See Walker v. Taco Bell, 1st Dist. Hamilton No. C-150182, 2016-Ohio-124, ¶ 8; Nationwide Mut. Fire Ins. Co. v. Jones, 4th Dist. Scioto No. 15CA3709, 2016-Ohio-513, ¶ 11; Lavin v. Hervey, 5th Dist. Stark No. 2015CA00021, 2015-Ohio-3458, ¶ 12. Instead of admitting its mistake and overruling Chen with the tripartite test established in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus, the court‘s opinion doubles down and creates new law wherein a discovery order that is alleged to breach the confidentiality guaranteed by the attorney-client privilege satisfies
{¶ 34} This conclusion, however, is myopic. It does not recognize the common-law origins of the work-product doctrine and that some of the protection provided by the work-product doctrine exceed the protection of
{¶ 35} Moreover, the conclusion ignores that
{¶ 36} Because I cannot agree that the protection afforded attorney work product can be parsed between whether we use the word privilege in a “strict” or “loose” sense or that an order compelling the disclosure of attorney work product will render a “meaningful or effective remedy” on appeal, I concur in judgment only. I would hold that an order requiring the release of privileged documents, whether protected by the attorney-client privilege or work-product doctrine, is a final, appealable order because the “proverbial bell cannot be unrung,” Muncie at 451, quoting Gibson-Myers & Assocs., Inc. v. Pearce, 9th Dist. Summit No. 19358, 1999 WL 980562, *2 (Oct. 27, 1999). I would therefore overrule Chen in accord with Galatis and restore stability and predictability to Ohio law.
I. Smith v. Chen
{¶ 37} The court‘s opinion obfuscates its holding in Chen, alternatively limiting Chen to “its facts,” Court opinion at ¶ 9, when not limiting it to all cases involving the work-product doctrine, Court opinion at ¶ 14. This is all after creating a new, mysterious test for determining whether discovery orders in work-product-doctrine cases are final, appealable orders, Court opinion at ¶ 2. Henceforth, says the court opinion, discovery protections involving the attorney work-product doctrine ”may require a showing under
{¶ 38} For a case that has no bearing on the instant controversy and does not announce a “new rule,” Court opinion at ¶ 14, the court‘s opinion expends pages explaining and defending its decision in Chen, a case that was dismissed for lack of a final, appealable order. While the treatment of Chen in this case is perplexing, blaming Chen‘s counsel for the erroneous outcome because ”Chen involved a failure to respond the issue being adjudicated” is inexcusable. Court opinion at ¶ 14.
{¶ 39} We accepted the following proposition of law in Chen: “The Tenth District‘s decision is one of first impression in that it has allowed during the course of discovery for the production of surveillance videotapes to be used for impeachment purposes in direct violation of Ohio‘s work-product doctrine as set forth in
{¶ 40} Because this court issued a show-cause order on a matter that “was not raised or briefed by the parties,” Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 12 (Kennedy, J., dissenting), I‘m not sure what counsel for Chen could have done to satisfactorily obey the court‘s order. This court does not permit the submission of evidence on appeal. State v. McKelton, ___ Ohio St.3d ___, 2016-Ohio-5735, ___ N.E.2d ___, ¶ 79, citing State v. Keith, 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997). Therefore, counsel for Chen responded in the only manner possible, by citing the law in its appellate district: “[T]he Tenth District Court of Appeals’ determination that the discovery order commanding the release of attorney work product was a final, appealable order.” Chen at ¶ 12 (Kennedy, J. dissenting). This court ignored, however, the appellate court‘s discussion of “the interlocutory nature of discovery orders” and its reliance on the
II. Attorney-Client Privilege and Work-Product Privilege Generally
{¶ 41} In its attempt to salvage Chen, the court opinion manufactures an artificial distinction between a “strict sense” and a “popular sense” of “privilege” and then creates a narrative to support the appearance of adhering to precedent. “Privilege” is defined as a “special legal right, exemption, or immunity granted to a person or class of persons; an exemption to a duty.” Black‘s Law Dictionary 1390 (10th Ed.2014). As it relates to discovery, privilege provides “qualified immunity of an attorney‘s work product from discovery or other compelled disclosure.” Id. at 1844. A “privileged communication” is a “communication that is protected by law from compelled disclosure in a legal proceeding.” Id. at 337. “Attorney-client privilege” is the “client‘s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney. Id. at 1391. In other words, both the work-product doctrine and attorney-client privilege involve privilege.
{¶ 42} In Squire, Sanders & Dempsey, L.L.P v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, we explained the distinction between the attorney-client privilege and the work-product privilege. Id. at ¶ 16 and 55. Recognized as one of the oldest confidential privileges to promote full, frank communication between attorneys and clients, the attorney-client privilege is codified in
{¶ 43} Squire also traced the origin of the work-product doctrine. Id. at ¶ 54. The United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 91 L.Ed. 451 (1947) explained that the work-product doctrine is a qualified privilege that protects the mental processes of the attorney. In Ohio, it is partially codified in
{¶ 44} To further distinguish between the attorney-client privilege and the work-product privilege, the court opinion focuses on the source of the protection. The attorney-client privilege was recognized at “common law” and is protected by
III. Common-Law Development of Work-Product Doctrine
{¶ 45} “Common law” is [t]he body of law derived from judicial decisions, rather than from statutes or constitutions.” Black‘s at 334.
A. English Common Law
{¶ 46} While a treatise could be written on the development of the work-product doctrine in England, it is sufficient to begin with the United States Supreme Court‘s recognition in Hickman that “English courts have developed the concept of privilege to include all documents prepared by or for counsel with a view to litigation.” 329 U.S. at 510, 67 S.Ct. 385, 91 L.Ed. 451, fn. 9.
{¶ 47} English common law developed “seven grounds” of privilege on which a production request could be denied. Odgers & Harwood, Principles of Pleading and Practice in Civil Actions in the High Court of Justice 262 (12th Ed.1939). One was “documents prepared with a view to litigation“—that is, documents “called into existence with the purpose—but not necessarily the sole purpose—of assisting the deponent or his legal advisers in any actual or anticipated litigation.” Id. at 264.
{¶ 48} For example, in the British case Birmingham & Midland Motor Omnibus Co. v. London & N.W. Ry Co., 3 K.B. 850, 856 (1913), the appellate court upheld the trial court‘s denial of the plaintiff‘s discovery request of documents that had been prepared in anticipation of litigation. Id. at 856. See also Adam Steamship Co., Ltd. v. London Assur. Corp., 3 K.B. 1256 (1914).
{¶ 49} Additionally, in denying a motion for the production of documents, namely a report of an accountant and draft of pleadings, Vice-Chancellor Sir W. Page Wood held that when a solicitor employs a person to “assist him and to give his opinion, such communications are as much privileged as if they came from the solicitor himself.” Walsham v. Stainton, 2 H. & M. 357, 358 (1863). See also Goldstone v. Williams, Deacon & Co., 1 Ch.D. 47 (1899).
{¶ 50} In
B. Ohio Common Law
{¶ 51} Like the English pleading system, Ohio established a statutory pleading system. Ohio Legislative Service Commission, Problems of Judicial Administration 48 (Feb.1965). In conjunction, procedural rights to obtain discovery and remedies to secure it were developed. Woodle, Discovery Practice in Ohio—Pathway to Progress, 8 Case W.Res.L.Rev. 117, 119-120 (1957). However, confronting Ohio lawyers was “[t]he common law [which] generally allowed litigant parties to conceal from each other, up to the time of trial, the evidence on which they meant to rely, and would not compel either of them to supply * * *” Id. at 120, quoting Reynolds v. Burgess Sulphite Fiber Co., 71 N.H. 332, 334, 51 A. 1075 (1902). And the historical basis for discovery proceedings in Ohio was judicial pronouncements. Id. at 121.
{¶ 52} While statutes required parties to “produce” evidence, this court was carving out exceptions. See Ex parte Schoepf, 74 Ohio St. 1, 77 N.E. 276 (1906), overruled in part on other grounds by Ex parte Martin, 141 Ohio St. 87, 47 N.E.2d 388 (1943), paragraph four of the syllabus. In reversing judgments of the trial and circuit courts that held a witness in contempt for refusing to answer deposition questions and produce documents pursuant to a statute, this court declared:
The statement of the witness that the reports were made in anticipation of possible litigation and that they are in possession of counsel for use in the suit which did ensue stands uncontradicted, and must, therefore, be taken as true. This clearly brings the documents within the rule as to privilege; and we see no reason to limit or modify the rule because the defendant is a corporation and obtained its information and made its memoranda for the purposes stated, through the usual agencies of a corporation.
(Emphasis added.) Id. at 15-16.
IV. Enactment of the Federal Rules of Civil Procedure
{¶ 53} The United States Supreme Court promulgated the Federal Rules of Civil Procedure in 1938. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules, 39 B.C.L.Rev. 691 (1998), fn. 4. The Rules merged law and equity proceedings and simplified the pleading practice, thereby expanding the need and role of discovery. Anderson, Cadieux, Hays,
{¶ 54} After the implementation of the