In Re Grand Jury Proceeding of John Doe
Lead Opinion
{¶ 1} 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.
{¶ 2} During the course of grand-jury proceedings, the state of Ohio
{¶ 3} 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
{¶ 4} 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
1. An order enforcing a grand jury subpoena to produce privileged information is a final, appealable order pursuant toR.C. 2505.02(B)(4) .
2. An order enforcing a grand jury subpoena to produce privileged information is a final, appealable order pursuant toR.C. 2505.02(B)(1) .
II. Analysis
{¶ 5} 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 -,
{¶ 6} Appellants argue that the appellate court improperly used a definition of the word “action” from
Which Statutes Apply ?
{¶ 7} 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.)
{¶ 8} 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'?
{¶ 9} In this case, the Eighth District Court of Appeals determined that “action,” undefined in
{¶ 10} 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
{¶ 11} 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,
Is the Grand-Jury Proceeding an Action for Purposes ofR.C. 2505.02?
{¶ 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,
{¶ 16} Thus, we have clearly stated that grand-jury proceedings are not special proceedings. This fact forecloses any reliance by appellants on
{¶ 17} R.C. Chapter 2307 specifically addresses civil actions, rather than criminal or grand-jury proceedings. We accordingly do not read
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
{¶ 20} 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
{¶ 23} Because both criteria set forth in
{¶ 24} 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,
III. Conclusion
{¶ 25} 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.
Notes
. Though self-identified as “appellee,” the state supports appellants’ positions.
. The documents in this case have been filed under seal. We accordingly refrain from identifying appellants.
. In Burnham, the lead opinion distinguished the protection provided by the attorney-work-product doctrine from the protection provided by the attorney-client privilege. Id. at ¶ 16. While in this case, appellants alleged protection arising from the attorney-client privilege, the attorney-work-produet doctrine, and the common-interest doctrine, the propositions of law in this case specifically refer to privileged materials. Our conclusion today that
Concurrence Opinion
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
{¶ 27}
{¶ 29} This analysis raises questions. Is the majority declaring that all a litigant need do to trigger a final, appealable order pursuant to
{¶ 30} 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
{¶ 32} Regardless of how the majority attempts to avoid the problems this court created in Smith v. Chen,
{¶ 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,
{¶ 34} The majority’s declaration also ignores the common-law component of the work-product privilege in this state. See Burnham, — Ohio St.3d -,
{¶ 35} 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,
{¶ 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,
{¶ 37} Accordingly, I concur in judgment only.
French, J., concurs in the foregoing opinion.