802 N.E.2d 732 | Ohio Ct. App. | 2003
{¶ 2} In April 2001, appellant, Cargotec, Inc. ("Cargotec"), brought an action for declaratory judgment and money damages against several insurance companies, including appellee, Westchester Fire Insurance Company ("Westchester"). In July 2001, Westchester first served a request for production of documents on Cargotec. Cargotec responded on October 1, 2001, and provided Westchester with a copy of its "privilege log."
{¶ 3} More than a year later, in late October 2002, Westchester filed a motion to compel Cargotec to produce all the documents referred to in the privilege log. Over Cargotec's opposition, the trial court ordered that the documents be provided to appellees. Relying on federal case law interpretation of the requirements for privilege logs, the court determined that Cargotec's log did not adequately describe the communications so as to establish privilege under either the attorney-client relationship or work-product doctrine. Prior to its determination, the court declined to permit Cargotec to amend the privilege log or to conduct an in camera review of the 100 plus documents listed in the log.
{¶ 4} Appellant now appeals that judgment, setting forth the following sole assignment of error:
{¶ 5} "The trial court abused its discretion by ordering Cargotec to produce its documents protected by the attorney-client privilege and work-product doctrine without allowing Cargotec an opportunity to amend its privilege log, or in the alternative, conducting an in-camera [sic] inspection."
{¶ 6} Under Ohio law, it is well established that the trial court is vested with broad discretion when it comes to matters of discovery, and the "standard of review for a trial court's discretion in a discovery matter is whether the court abused its discretion." Mauzy v. KellyServ., Inc. (1996),
{¶ 7} The attorney-client privilege exempts from the discovery process certain communications between attorneys and their clients. The privilege has long been recognized by the courts, Upjohn Co. v. UnitedStates (1981),
{¶ 8} Work product consists of "documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative" and may be discovered only upon a showing of good cause. Civ.R. 26(B)(3). This rule is often referred to as the "work-product doctrine." The purpose of the work-product doctrine is "to prevent an attorney from taking undue advantage of his adversary's industry or efforts." Civ.R. 26(A)(2).
{¶ 9} In Ohio, the burden of showing that testimony or documents are confidential or privileged rests upon the party seeking to exclude it. Lemley v. Kaiser (1983),
{¶ 10} The use of privilege logs and requirements of their contents has not been substantively addressed by Ohio courts. Despite the similarity between the federal common law attorney-client privilege and Ohio's privilege statute, R.C.
{¶ 11} Under Civ.R. 26(E), parties may supplement their discovery responses and, under certain instances, are even required to do so. In our view, unless discovery has been willfully delayed or avoided by the party seeking to exclude privileged information, it is unreasonable and an abuse of discretion to deny a request to supplement or clarify responses to discovery documents, including entries in a privilege log.
{¶ 12} In this case, Cargotec responded to Westchester's request for discovery within three months, a reasonable time considering the number of documents involved. Appellee, on the other hand, did not challenge the sufficiency of the information in the log until a year later, after, coincidentally, summary judgment was filed against Westchester. Nothing in the record indicates that Cargotec willfully avoided responding to the original discovery request or was uncooperative; rather it asserted that some of the information requested was privileged and attempted to support the assertion by filing the privilege log.
{¶ 13} In our view, privilege may be sufficiently established if the log states that communications were made between attorney and client for the purpose of procuring legal advice or representation. More detailed descriptions may risk revealing privileged information. Our review of the log reveals that it discloses records of communications between attorney and client, including Cargotec employees. It is unclear whether all the persons listed qualify as "clients." In this case, however, the trial court did not determine that the information was not privileged due to the nature of the communications or people involved, only that the log did not contain sufficient descriptions of what was included in those communications, according to federal case requirements, to establish that they were privileged. Furthermore, the court declined to conduct an in camera inspection of the numerous documents. Based on this lack of information, the trial court granted the motion to compel.
{¶ 14} After a complete review of the record, we conclude that appellant's request to clarify or add more complete descriptions was an attempt to comply with the requirements imposed by the court and was not unreasonable. As such, the "modifications" were merely supplemental information in response to Westchester's belated challenge. If the trial court determines that any of the communications do not fall within the attorney-client privilege or work-product doctrine, then such documents must be revealed. Therefore, we conclude that the trial court abused its discretion since it was unreasonable to deny appellant *658 the opportunity to amend the log as a supplement to its response to the request for discovery.
{¶ 15} Accordingly, appellant's sole assignment of error is well-taken.
{¶ 16} The judgment of the Lucas County Court of Common Pleas is reversed and remanded for proceedings consistent with this decision. Court costs of this appeal are assessed to appellee.
Judgment Reversed.
Richard W. Knepper, J. Judge, Mark L. Pietrykowski, J., Judge, ArleneSinger, J., Judge, concur. *659
