State ex rel. Ohio Academy of Nursing Homes, Inc. v. Ohio Dept. of Medicaid
No. 16AP-102
Court of Appeals of Ohio, Tenth Appellate District
April 12, 2016
2016-Ohio-1516
KLATT, J.
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Ohio Academy of Nursing Homes, Inc. et al.,
Relators-Appellees,
v.
Ohio Department of Medicaid et al.,
Respondents-Appellants.
No. 16AP-102
(C.P.C. No. 03CVH11-12970)
(REGULAR CALENDAR)
D E C I S I O N
Rendered on April 12, 2016
Geoffrey E. Webster and Bryan M. Pritikin, for appellees.
Michael DeWine, Attorney General, Rebecca L. Thomas and Ara Mekhjian, for appellants.
APPEAL from the Franklin County Court of Common Pleas
ON MOTION TO DISMISS
KLATT, J.
{¶ 1} Respondents-appellants, the Ohio Department of Medicaid and its director (“the department“), as successors-in-interest to the Ohio Department of Job and Family Services and its director, appeal from a discovery order entered by the Franklin County Court of Common Pleas. The trial court granted a motion by relators-appellees, the Ohio Academy of Nursing Homes, Inc., and a number of individual nursing home care providers (“the providers“), compelling discovery by requiring the deposition of certain persons.
{¶ 2} The providers began this action with a complaint seeking declaratory and injunctive relief. Their fifth amended complaint modifies the form of action to a petition
{¶ 3} The providers argue that the order compelling discovery is not a final appealable order because it does not meet the requirements of
{¶ 4} An appellate court‘s jurisdiction is limited to the review of final appealable orders, judgments, or decrees.
{¶ 5} Although most discovery proceedings do not qualify as provisional remedies and cannot give rise to an interlocutory appeal,
{¶ 6} While upholding that general principle of interlocutory appeals regarding discovery of privileged matter, the Supreme Court of Ohio has recently emphasized that an appellant in such cases must affirmatively demonstrate that it meets the requirements of
{¶ 7} The providers first argue that the discovery order in this case does not effectively determine the provisional remedy because the order merely allows the providers to conduct depositions, and no material has yet been produced by the proposed questioning. In the absence of any production in the form of documents or testimony, the providers argue, the information has yet to be provided and therefore the matter is not ripe for review. For this proposition they cite our holding in Irvin, in which we addressed a trial court order compelling production of allegedly privileged documents for in-camera review by the court.
{¶ 8} This case is easily distinguishable from our decision in Irvin. In that case, the trial court granted a limited motion to compel discovery, subject to in-camera review by the trial court before the release of any potential privileged information to the moving party. After confirming that communication between an attorney and client would be privileged matter pursuant to
{¶ 9} The depositions actually ordered in the present case contain no such additional filter or safeguard against the release of the allegedly privileged material. An order that compels the final and unfettered discovery of privileged material, even if that discovery has yet to take place pursuant to the order, has effectively determined the action
{¶ 10} We also find that the providers’ arguments regarding waiver are not well-taken, and have been previously rejected by this court in Bennett:
An appellate court‘s jurisdiction cannot depend upon whether or not a party has waived the right to assert an error on appeal. Otherwise, an appellate court would be forced to decide the merits of the appeal in order to determine whether it has the power to hear and decide the merits of the appeal. To avoid this conundrum, appellate courts have reasoned that as long as an appellant presents a “colorable claim” that the documents subject to a discovery order are privileged and/or confidential, the proceeding that resulted in that order qualifies as a “provisional remedy.” Callahan v. Akron Gen. Med. Ctr., 9th Dist. No. Civ.A. 22387, 2005-Ohio-5103, ¶ 29; Schottenstein, Zox & Dunn v. McKibben, 10th Dist. No. 01AP-1384, 2002-Ohio-5075, ¶ 19; Cuervo v. Snell (Sept. 26, 2000), 10th Dist. No. 99AP-1442. * * * Here, where the trial court has ordered defendants to turn over the [allegedly privileged matter], the order unquestionably requires the disclosure of confidential matter. * * * Therefore, we conclude that the trial court‘s order satisfies the first part of the
R.C. 2505.02(B)(4) test.
Bennett at ¶ 35. The providers may argue under the merits of the appeal whether the agencies have waived their claim of privilege in this matter. A deficiency in the merits of the appeal does not deprive us of jurisdiction and does not require dismissal.
{¶ 11} Based on the foregoing, the providers’ motion to dismiss the appeal for lack of jurisdiction is denied.
Motion to dismiss denied.
DORRIAN, P.J., and SADLER, J., concur.