{¶ 1} Aрpellant Thompson Hine, L.L.P., appeals the decision of the Cuyahoga County Court of Common Pleas that ordered the production of various documents following an in camera inspection. For the reasons stated herein, we affirm in part, reverse in part, and remand.
{¶ 2} This action was filed in June 2005 by plaintiffs-appellees David and Stephanie Sutton (“plaintiffs”) follоwing a workplace accident in which David Sutton (“Sutton”) fell from an aerial man-lift and was injured.
{¶ 3} Thompson Hine represented Terex in the action. In an effort to obtain evidence concerning the extent of Sutton’s alleged injuries, Thompson Hine engaged Shadow Investigations, Inc. (“Shadow”), a privatе investigative firm, to conduct surveillance of Sutton. The surveillance materials were disclosed to plaintiffs in the course of discovery. Thompson Hine asserts that “[u]pon receipt of the surveillance materials in June 2007, plaintiffs’ counsel immediately threatened to file invasion of privacy claims against Terex, Shadow, and/or Thompson Hine, and from at least that point forward, Thompson Hine was anticipating litigation against it and/or Terex.”
{¶ 4} Thereafter, plaintiffs amended their complaint to add Thompson Hine and Shadow as party defendants and asserted a claim of invasion of privacy against them. After plaintiffs settled their claims against the original defendants, they filed a sixth amended complaint against Thompson Hine аnd Shadow that
{¶ 5} Plaintiffs alleged, among other allegations, that Thompson Hine and Shadow or their agents or employees “surreptitiously videotaped Plaintiffs at their private residence,” “physically entered upon Plaintiffs’ private residence under false pretenses,” “soliсited] private and confidential information,” “record[ed] a conversation concerning Plaintiffs’ private affairs or concerns,” wrongfully invaded “Plaintiffs’ solitude, seclusion and private affairs,” and caused plaintiffs “severe and debilitating emotional distress.” The surveillance and investigation activities occurred from February through May 2007.
{¶ 6} During the course of discovery, plaintiffs sought documents surrounding the surveillance from Thompson Hine. Thompson Hine refused to produce certain e-mails contained in a “privilege log” and claimed that these documents were privileged or work product. Plaintiffs filed a motion to compel, along with a supplemental motion, seeking production of the e-mails. Plaintiffs argued that Thompson Hine had wаived any privilege by previously disclosing certain e-mails that contained information relating to plaintiffs’ claims. Plaintiffs also claimed that they were entitled to discover “the underlying facts and circumstances surrounding the investigation by Shadow Investigation orchestrated by [Thompson Hine attorneys],” including the manner in which Shadow was retained, the manner in which the investigation was cоnducted, and the facts and circumstances relating to Thompson Hine’s authorization of and participation in the alleged tortious conduct.
{¶ 7} The trial court ordered Thompson Hine to “produce all emails on the privilege log for in camera inspection.” After conducting a thorough review of the documents, the trial court issued an order requiring some оf the documents produced with redaction, some produced without redaction, and some not subject to disclosure.
{¶ 8} Thompson Hine has appealed the decision of the trial court.
{¶ 9} Initially, we address thе sufficiency of the trial court’s order. Thompson Hine claims that the order should be reversed because it fails to provide any basis for ordering the disclosure of the documents in question. It is clear from
{¶ 10} While Thompson Hine argues that “specific determinations” should have been made by the trial court, it never requested further clarification from the trial court. Furthеr, the court was not required by Civ.R. 52 to make findings of fact and conclusions of law concerning a decision on a discovery motion. See Carstons v. Klatt, Franklin App. No. 01AP-538,
{¶ 11} In this particular cаse, we find that the record, which includes the documents filed under seal, provides this court with an adequate basis to conduct a meaningful review. Therefore, we proceed to address the merits of the appeal.
{¶ 12} Civ.R. 26(B)(1) permits parties' to obtain discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” The Ohio Supreme Court has stated that a discovery issue that involves the assertion of an alleged privilege is reviewed de novo. See Ward v. Summa Health Sys.,
{¶ 14} Thompson Hine argues that plaintiffs already possess the surveillance materials and correspondence showing the facts and circumstances of the investigation by Shadow and that the trial court ordered the production of irrelevant privileged materials. Plaintiffs argue that they are entitled to discover the underlying facts and circumstances surrounding the investigation and that the asserted privileges may not be used to conceal tortious conduct and do not prohibit them from obtaining discovery relevant to their claims herein.
{¶ 15} The attorney-client privilege exempts from discovery certain communications between attorneys and their clients in the course of seeking or rendering legal advice. Boone v. Vanliner Ins. Co. (2001),
{¶ 16} The attorney-client privilege is founded on the premise that confidences shared in the attorney-client relationship are to remain confidential. Moskovitz v. Mt. Sinai Med. Ctr. (1994),
{¶ 18} Some of the documents ordered disclosed in this matter are communications made between Thompson Hiñe and its client Terex. Others are between Thompson Hiñe, as a defendant, and its internal counsel. These are attorney-client communications that are subject to the attorney-client privilege. Although the documents contain information relating to the surveillance and investigation activities, they were prepared after the alleged wrongful conduct had occurred.
{¶ 19} One of the recognized exceptions to the attorney-client privilege is the “crime-fraud exception,” which appliеs to communications made in furtherance of a crime or fraud. State ex rel. Nix v. Cleveland (1998),
{¶ 20} “A party invoking the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe that a crime or fraud has been committed and that the communications were in furtherance of the crime or fraud. * * * The mere fact that communications may be related to a crime is insufficient to overcome the attorney-client privilege.” State ex rel. Nix at 384.
{¶ 21} Here, plaintiffs did not make a prima facie showing that the subject attorney-client communications were made “in furtherance” of wrongful conduct. Rather, the record reflects that the surveillance and investigation activities occurred from February through May 2007. The subject communications were made after this time and after plaintiffs’ counsel had expressed an intention to file an invasion-of-privacy claim. Although plaintiffs contend that Thompson Hine is concealing evidence of alleged wrongdoing, a communication is not subject to disclosure merely because it contains relevant information that may
{¶ 22} We also find that the “lack-of-good-faith exception” does not apply in this matter. This exception has been found to apply in matters involving “the lack of a good faith effort to settle by a party or the attorneys acting on his or her behalf’ and “communications furthering an insurance company’s lack of good faith in dеnying coverage.” Squire, Sanders & Dempsey, L.L.P.,
{¶ 23} Upon our review of the record, we find that plaintiffs failed to establish a sufficient basis to overcome the attorney-client privilege. Therefore, we find that the trial court erred in ordering the disclosure of documents that are protected by the attorney-client privilege.
{¶ 24} The majority of documents that were ordered disclosed arе communications made with Shadow or made between Thompson Hine attorneys. These documents contain information pertaining to the engagement of Shadow, the surveillance and investigation activities, and related matters. These documents were made in the course and anticipation of litigation and constitute attorney work product.
{¶25} The work-prоduct doctrine, which is set forth under Civ.R. 26(B)(3), provides a qualified privilege that protects an attorney’s mental processes in the preparation of litigation. Squire, Sanders & Dempsey, L.L.P.,
{¶ 26} The work-product doctrine encompasses materials prepаred in anticipation of litigation or for trial, and allows for the discovery of work product “only upon a showing of good cause therefor.” Civ.R. 26(B)(3). “[A]ttorney work product, including but not limited to mental impressions, theories, and legal conclusions, may be discovered upon a showing of good cause if it is directly at issue in the case, the need for the information is compеlling, and the evidence cannot be obtained elsewhere.” Squire, Sanders & Dempsey, L.L.P., at ¶ 60.
{¶28} In seeking the production of e-mails contained in Thompson Hine’s privilege log, plaintiffs referred to certain e-mails that were already produced. Those e-mails contain information relevant to Thompson Hine’s involvement in the surveillance and investigation activities. Plaintiffs argued that the undisclosed e-mails in thе privilege log contained discoverable information relevant to their claims. They further asserted that they are entitled to discover the underlying facts and circumstances surrounding the investigation and Thompson Hine’s involvement therein.
{¶ 29} Our review reflects that the information sought to be discovered is directly at issue in the lawsuit and is necessary to establish plaintiffs’ claims. Plaintiffs are seeking information concerning Thompson Hine’s alleged knowledge of, and participation and acquiescence in, the conduct giving rise to plaintiffs’ claims. The need for this information is compelling, and the information cannot be obtained elsewhere because these are internal documents of Thompson Hine. Accordingly, plaintiffs demonstrated good cause, and the trial court did not err in ordering the disclosure of the work-product documents.
{¶ 30} As stated by one court, “The material and information sought relates directly to plaintiffs claims for invasion of privacy and the intentional infliction of emotional distress which are based upon the conduct of the private investigators defendant hired to investigate plaintiff during the pendency of this litigation. Information concerning the investigators’ activities and defendant’s motivation for, knowledge of, or acquiescence to the investigators’ activities is relevant to plaintiffs claims and is nowhere else obtainable than from either the investigators themselves or from defendant and his counsel. Further, although information concerning thе extent of the investigator’s activities may possibly be obtainable from third parties who may have observed them, it is most likely this information is only obtainable from the materials and information plaintiff seeks disclosed. This information is central to whether, in fact, the alleged torts were even committed. Without the sought after disclosure, plaintiff will most likely be
CONCLUSION
{¶ 31} We affirm the trial court’s decision requiring the disclosure of the documents that constitute work product, as redacted. We reverse the trial court’s decision requiring the disclosure of communications subject to the attorney-client privilege. We find that the following Bates-stamped documents shall remain under seal and undisclosed: SUTTON: 004082.001-002, 005039.001, 004450.001- 004, 001357, 004437, 004438, 000043.001-010, 006185.001-010, 001170, 001560.001- 002, 001561.001-002, 004388.001-002, 007608.001-002, 001686, 004462.001- 002, and 004375.001.
Judgment affirmed in part and reversed in part, and cause remandеd.
Notes
. Plaintiff-appellee Brittany Sutton was later added as a party to the action.
. Also named as defendants to the initial claims were Alban Equipment Company, United Rentals, Simons Aerials, Inc., and John Does I-VII.
. Also, Brittany Sutton was added as a plaintiff under the sixth amended complaint.
. We note that generally discovery orders are not appealable. However, if the judgmеnt orders a party to disclose allegedly privileged material, it is a “provisional remedy” under R.C. 2505.02(A)(3) and is appealable pursuant to R.C. 2505.02(B)(4).
. As explained in United States v. Roxworthy (C.A.6, 2006),
. These documents have been placed in a separately sealed envelope by the court of appeals.