Lead Opinion
Upon review, we conclude that an order compelling the discovery of alleged work-product materials is not a final appealable order under R.C. 2505.02.
Appellant Nelson contends that such an order is appealable under R.C. 2505.02 because it “affects a substantial right made in a special proceeding.” We agree that the qualified work-product exemption set forth in Civ.R. 26(B)(3) constitutes a “substantial right.” Civ.R. 26(B)(3) generally provides that trial-preparation materials are exempt from discovery unless “good cause” is shown for their production. The justification for this exemption was set forth in Hickman v. Taylor (1947),
“Proper preparation of a client’s case dеmands that [an attorney] * * * assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. * * * This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways— aptly though roughly termed by the Circuit Court of Appeаls in this case as the ‘Work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demorаlizing. And the interests of the clients and the cause of justice would be poorly served.”
Clearly, substantial interests underlie the qualified exemption from discovery that is given to work-product materials in Civ.R. 26(B)(3).
We must next determine whether an оrder compelling the discovery of alleged work-product materials is “made in a special proceeding.” In Amato v. General Motors Corp. (1981),
“[A]n appellant’s ultimate right of rеview upon an appeal from a final judgment in the action; the elimination of unnecessary appeals, since the complaining party may win the case or settle it; the absence of irreparable hаrm from the vast majority of orders requiring production of documents; the potential for harassment of litigants by nuisance appeals, and the fact that any appeal tends to delay or deter trial or settlement of a lawsuit; the burden on the reviewing court’s docket from appeals of housekeeping matters in the [trial] * * * courts; and the slim chance for reversal of all but the most unusual discovery orders.” American Express Warehousing, Ltd. v. Transamerica Ins. Co. (C.A.2, 1967),
Since interlocutory appeals of discovery orders interfere with the prompt and orderly disposition of litigation, they are allowed only with much reluctance. See Amato, supra,
Against this presumption of nonappealability, Nelson contends that only an immediate appeal would preserve the work-product exemption. He first contends that an appeal after final judgment is not practicable because “[t]here is no way to place Nelson in his former position if an appellate court later determines [after ^disclosure] that Toledo Oxygen is not entitled to the letters.”
In this argument, appellant is questioning the ability of an appellatе court after final judgment to remedy an erroneous work-product disclosure. We believe, however, that he takes too narrow a view of an appellate court’s ability to fashion appropriate relief. We conceive of no circumstance, and appellant points to none, in which an appellate court could not fashion an appropriate remand order that would provide substantial relief from the erroneous disclosure of work-product materials. For example, if the physicians’ reports in this case implicitly or explicitly reveal appellant’s trial strategies, then it seems a new trial would substantially remedy the error. A
In this regard, we distinguish appellant’s work-product claim from claims of physician-patient and informant confidentiality, upon which immediate appeals were based in Humphry v. Riverside Methodist Hosp. (1986),
In contrast, the privileges at issue in Humphry and Port Clinton 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. Because Humphry and Port Clinton can be distinguished, we have no reason in this case to reassess the validity of their holdings that certain discovery orders can be immediately appealed pursuant to R.C. 2505.-02. Compare State v. Crago (1990),
During oral argument, appellant also contended that an immediate appeal should be allowed because the prejudice resulting from the disclosure of work-product materials is too intangible to be provable in an appeal after final judgment. We find this second argument unpersuasive as well. Although appellant assumes that a specific showing of prejudice is requirеd regarding an erroneous work-product disclosure, we have not yet addressed the necessity of showing prejudice in this context. We need not decide in this case whether such a showing is necessary. The difficulties of proof in some cases notwithstanding, we believe such difficulties should not alter the ordinary rule that discovery orders are not immediately appealable.
While some work-product claimants may face difficulties in an аppeal after final judgment, such difficulties are mainly a result of the General Assembly’s
In conclusion, we hold that a discovery order compelling the production of documents or tangible things and overruling a claim that the materials discovered are exempt as work product under Civ.R. 26(B)(3) is not a final appealable order pursuant to R.C. 2505.02. Accordingly, the court of appeals correctly dismissed the appeal in No. 90-2182.
Judgment affirmed in case No. 90-2182.
Appeal dismissed in case No. 90-2184.
Concurrence Opinion
сoncurring in syllabus and judgment. I concur in the syllabus and judgment of the majority. I write separately to once again protest the use of the “balancing test,” as set forth in Amato v. General Motors Corp. (1981),
Today, a majority of at least four of us have found “ * * * that the balance in this case weighs in favor of rеview after final judgment and thus that the order in question is not made in a special proceeding.” But what if the appellant had not appealed and later, when an appeal was taken assigning error on the discоvery question, a court of appeals and/or a majority of this court found that the balancing test was applicable and that the order was one that affected a substantial right and was made in a special proceeding and, therefore, appellant’s appeal had to be dismissed as untimely filed? That would not only be devastating but could also lead to a claim of malpractice — a
To end this confusion and to give definitive guidance to the bench and bar, we should make clear that a “special procеeding” “ * * * is an action not recognized at common law or part of our standard civil practice. It is one that has been brought about by specific legislation which creates a special type of actiоn. Examples would be forcible entry and detainer, declaratory judgment, appropriation or * * * arbitration. The term has nothing to do * * * with the test, set forth * * * from Amato v. General Motors Corp. (1981),