IN RE GRAND JURY PROCEEDING OF JOHN DOE.
Nos. 2015-1181 and 2015-1182
Supreme Court of Ohio
December 7, 2016
2016-Ohio-8001
LANZINGER, J.
Submitted February 24, 2016
LANZINGER, J.
{11} In this case, we are asked to determine whether an order denying a motion to quash a grand-jury subpoena and ordering a party to testify or produce documents is a final order that may be appealed. We hold that it is.
{12} During the course of grand-jury proceedings, the state of Ohio1 issued eight grand-jury subpoenas to individuals associated with appellants, an Ohio limited partnership and the president of its general partner.2 Appellants moved to quash the subpoenas, which sought documents and testimony, arguing that they required appellants and their former attorneys to disclose information protected variously by the attorney-client privilege, the attorney-work-product doctrine, and the common-interest doctrine. The trial court issued an entry denying the motions, finding that the material sought was no longer or never had been privileged.
{13} Appellants appealed to the Eighth District Court of Appeals, which sua sponte ordered appellants to show cause why their appeal should not be dismissed for lack of a final order. After the parties briefed the issue, the court of appeals held that the trial court‘s journal entry did not constitute a final order, reasoning that grand-jury proceedings are not “actions” under
{14} We accepted the conflict certified to us by the Eighth District Court of Appeals: “Whether an order denying a motion to quash a grand jury subpoena and ordering a party to testify and/or produce documents is an order granting or denying a provisional remedy within the meaning of
- An order enforcing a grand jury subpoena to produce privileged information is a final, appealable order pursuant to
R.C. 2505.02(B)(4) . - An order enforcing a grand jury subpoena to produce privileged information is a final, appealable order pursuant to
R.C. 2505.02(B)(1) .
II. Analysis
{15} We note at the outset of our analysis that the issues present in this case are related to, yet distinct from, the issues present in Burnham v. Cleveland Clinic, — Ohio St.3d —, 2016-Ohio-8000, — N.E.3d —. In Burnham, we were presented with the question whether an order compelling the production of materials alleged to be protected by the attorney-client privilege is a final, appealable order under
{16} Appellants argue that the appellate court improperly used a definition of the word “action” from
Which Statutes Apply?
{17} The statute that discusses final orders is
a proceeding ancillary to an action, including but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code.
(Emphasis added.)
{18} Division (B) then sets forth seven situations in which an order is a final order that may be appealed, one of which is
(4) An order that grants or denies a provisional remedy and to which 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.
How Have Appellate Courts Interpreted Motions to Quash Grand-Jury Subpoenas?
{19} In this case, the Eighth District Court of Appeals determined that “action,” undefined in
{110} The court reasoned that because grand-jury proceedings are investigatory proceedings from which no judgment or decree results, grand-jury proceedings are not actions that can be prosecuted to a judgment. As a result, the court of appeals held that a ruling on a motion to quash a grand-jury subpoena does not grant or deny a provisional remedy pursuant to
{111} The first of two cases certified as in conflict with the decision of the Eighth District is In re Grand Jury Subpoena Duces Tecum Directed to the Keeper of Records of My Sister‘s Place, 4th Dist. Athens No. 01CA55, 2002-Ohio-5600, 2002 WL 31341083. In that case, the Fourth District Court of Appeals took a different approach in defining what a ruling on a motion to quash a grand-jury subpoena is, reasoning, “Grand juries are a province strictly for criminal proceedings and a motion to quash a grand jury subpoena is an ancillary action to the grand jury proceedings.” (Emphasis added.) Id. at ¶ 9. In reaffirming a previous entry that characterized an order granting a motion to quash a grand-jury subpoena as a final order under
Is the Grand-Jury Proceeding an Action for Purposes of
{13} The ultimate question before us is whether a ruling granting or denying a motion to quash a grand-jury subpoena is a final order.
{14} But because
{15} We have explained that an action is distinct from a special proceeding:
“[W]e suppose that any ordinary proceedings in a court of justice, by which a party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, involving the process and pleadings, and ending in a judgment, is an action, while every proceeding other than an action, where a remedy is sought by an original application to a court for a judgment or an order, is a special proceeding.”
(Brackets sic.) Bernbaum v. Silverstein, 62 Ohio St.2d 445, 446-447, 406 N.E.2d 532 (1980), quoting Missionary Soc. v. Ely, 56 Ohio St. 405, 407, 47 N.E. 537 (1897). We noted the dichotomy between actions and special proceedings in Polikoff v. Adam, 67 Ohio St.3d 100, 616 N.E.2d 213 (1993): “Orders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to
{16} Thus, we have clearly stated that grand-jury proceedings are not special proceedings. This fact forecloses any reliance by appellants on
{17}
Is an Order Enforcing a Grand-Jury Subpoena and Ordering Production of Allegedly Privileged Information a Final Order?
{18} Because we conclude that a grand-jury proceeding constitutes an action, the next question before us is whether an order denying a motion to quash a grand-jury subpoena and ordering a party to testify or produce documents is an order granting or denying a provisional remedy that is potentially subject to appeal pursuant to
{19} We similarly hold that an order denying a motion to quash a grand-jury subpoena and ordering a party to testify or produce documents is an order granting or denying a provisional remedy as defined by
{120} It thus remains for us to determine whether this provisional remedy qualifies as a final order pursuant to
(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.
{21} “An order compelling the production of materials alleged to be protected by the attorney-client privilege is a final, appealable order under
{22} The second requirement in
{123} Because both criteria set forth in
{124} Our decision that a final order exists and that appeal is accordingly possible is consistent with the axiom that a grand jury does not have power to consider privileged information. “[T]he grand jury‘s subpoena power is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law.” United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Our conclusion that an order enforcing a grand jury subpoena and ordering production of allegedly privileged information is final and appealable thus fits within the framework of our criminal procedure, for the only way to prevent grand juries from potentially violating a privilege and forcing parties to
III. Conclusion
{125} We accordingly hold that an order denying a motion to quash a grand-jury subpoena and ordering a party to testify or produce documents is an order granting or denying a provisional remedy within the meaning of
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and PFEIFER and O‘NEILL, JJ., concur.
O‘DONNELL, J., concurs in judgment and concurs in paragraph two of the syllabus.
KENNEDY, J., concurs in judgment only, with an opinion joined by FRENCH, J.
KENNEDY, J., concurring in judgment only.
{26} I agree with the majority that a grand-jury proceeding constitutes an action for purposes of determining whether a final, appealable order exists pursuant to
{127}
{129} This analysis raises questions. Is the majority declaring that all a litigant need do to trigger a final, appealable order pursuant to
{130} The majority answers appellants’ first proposition of law with the following broad syllabus language. “[A]n order * * * ordering the production of allegedly privileged information is a final order pursuant to
{31} This syllabus language causes confusion. Is the majority declaring that all a litigant need do to qualify the order to release allegedly protected material as a final, appealable order pursuant to
{132} Regardless of how the majority attempts to avoid the problems this court created in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, the time has come to set the matter right. But once again we fail, instead continuing the disservice we have done to the bar and bench that began in Chen. This court now requires “privilege” to be applied in its “strict sense,” rather than its “loose sense,” whatever these concepts mean, to determine whether an order compelling discovery of a privileged document is a final, appealable order. Burnham at ¶ 32 (lead opinion). As a result of this new legal architecture, trial courts must now consider materials protected by attorney-client privilege in a separate framework from those protected by work-product privilege, based on
{33} Furthermore, Burnham wrongly declared that the work-product privilege did not exist at common law, which is “[t]he body of law derived from judicial decisions, rather than from statutes or constitutions,” Black‘s Law Dictionary 334 (10th Ed.2014). This pronouncement ignores a wealth of English case law that “developed the concept of privilege to include all documents prepared by or for counsel with a view to litigation,” Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 91 L.Ed. 451 (1947), fn. 9. Moreover, it also ignores that the work-product privilege predated Hickman. Id. See also Ex parte Schoepf, 74 Ohio St. 1, 15, 77 N.E. 276 (1906), overruled in part on other grounds, Ex parte Martin, 141 Ohio St. 87, 47 N.E.2d 388 (1943), paragraph four of the syllabus (reports made in anticipation of possible litigation and that were in possession of counsel for use in the suit were privileged). Clearly, the pronouncements of the English courts, see Hickman, and this court fall within the definition of common law.
{134} The majority‘s declaration also ignores the common-law component of the work-product privilege in this state. See Burnham, — Ohio St.3d —, 2016-Ohio-8000, — N.E.3d —, at ¶ 135 (Kennedy, J., concurring in judgment only). The majority ignores our recent acknowledgement that
{135} Moreover, the majority‘s treatment of the work-product privilege diminishes the protection provided under the Civil Rules, notwithstanding that this court‘s authority to promulgate the rules is drawn from the Ohio Constitution. See Burnham at ¶ 34 (Kennedy, J., concurring in judgment only). Our procedural rules are controlling unless the legislature enacts a conflicting law that affects a substantive right. See also Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, ¶ 30.
{36} The parsing of the term “privilege” in Burnham typifies the problem we have brought upon ourselves by failing to recognize that Chen was wrongly decided. In accord with my analysis in Burnham at ¶ 31-79 (Kennedy, J., concurring in judgment only), Chen should be overruled pursuant to the tripartite test in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus.
{1137} Accordingly, I concur in judgment only.
FRENCH, J., concurs in the foregoing opinion.
Walter Haverfield, L.L.P., Ralph E. Cascarilla, and Darrell A. Clay; and Tucker Ellis, L.L.P., and John F. McCaffrey, for appellant partnership.
Martin G. Weinberg, P.C., and Martin G. Weinberg; and Baker Hostetler, L.L.P., George A. Stamboulidis, and Lisa M. Ghannoum, for appellant president.