BLAKE ZIMPFER, ET AL., PLAINTIFFS-APPELLANTS/ CROSS-APPELLEES, v. SANDRA S. ROACH, ET AL., DEFENDANTS-APPELLEES/ CROSS-APPELLANTS.
CASE NO. 17-16-03
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
August 1, 2016
2016-Ohio-5176
Appeal from Shelby County Common Pleas Court Probate Division Trial Court No. 2015CVA0001 Judgment Affirmed
Susan D. Solle for Appellants
James L. Thieman for Appellees
{¶1} Plaintiffs/Appellants/Cross-Appellees, Blake Zimpfer (“Blake”) and Jody Keith (“Jody”), as legal guardian for Courtney Zimpfer (“Courtney”) (collectively “Appellants”), appeal the judgment of the Court of Common Pleas of Shelby County, Probate Division, denying, in part, their motion to quаsh a subpoena issued by Defendants/Appellees/Cross-Appellants, Sandra Roach and Peggy Hall, individually and as co-executrixes of the estate of Robert Zimpfer (“the Decedent”) (collectively “Appellees”). For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On February 11, 2015, Appellants filed a complaint against Appellees in the Court of Common Pleas of Shelby County, Probate Division, contesting the validity of the Decedent’s Last Will and Testament (“the will”).1 Specifically, Appellants alleged that (1) the will failed to comply with the formal requirements of a will; (2) the Decedent lacked testamentary capacity to make a will; and (3) the will was a produсt of undue influence.
{¶3} Appellees later filed their answer in which they denied the allegations.
{¶4} In late 2015, Appellees issued a subpoena duces tecum to Dr. Kreg Huffer, Appellants’ uncle, pursuant to
All letters, cards, notes, email correspondencе, memoranda, or other forms of communication with one or more of the following individuals: 1) [Blake] 2) [Courtney] 3) [Jody] 4) employees of the law firm of Dinsmore and Shohl, LLP2, regarding anything whatsoever to do with [the Decedent]. (This specifically includes all email correspondence in deleted files, and whether such email correspondence has been printed or is in electronic form). - All papers and other records of every kind and description in any way related to litigation, pending in the Common Pleas Court of Shelby County, Ohio and pertaining to the Estate of [the Decedent], including anything pertaining to the mediation of the case.
(Docket No. 48, Ex. 1).
{¶5} On January 15, 2016, Appellants filed a motion to quash thе subpoena, claiming that Dr. Huffer’s communications with Appellants’ counsel were protected under the attorney-client privilege and the work-product doctrine.
{¶6} First, Appellants argued that Dr. Huffer was a “client” within the meaning of the attorney-client privilege insofar as he was Blake and Courtney’s “agent” and “representative.” Appellants explained, “Because [Blake and Courtney] are in the Army and at college, respectively, neither of [them are] readily available for litigation strategy and preparation discussion. Dr. Huffer is therefore acting as their agent and representative in those discussions * * *.” (Docket No. 48, p. 3).
{¶8} Attached to Appellants’ motion was a copy of the subpoena and Dr. Huffer’s affidavit. The affidavit stated:
- I made the statements in this affidavit upon my own personal knowledge, am of the requisite age and capacity to testify as to all matters stated, am under no legal disability which would preclude me from testifying, and, if called upon to do so, would testify as set forth in this affidavit.
- I am over the age of eighteen (18) years and am of sound mind and body.
- I am the uncle of [Blake and Courtney].
- I hаve assumed the role of representative and agent for [Blake and Courtney] for purposes of this litigation.
- All communications between myself and any attorneys at Dinsmore & Shohl are directly related to litigation issues in my role as representative of [Blake and Courtney].
- I do not waive the attorney-client privilege that applies to these communications.
(Docket No. 48, Ex. 2, p.1).
{¶9} On January 19, 2016, Appellees filed their response, arguing that the affidavit was insufficient to show that Dr. Huffer was Appellants’ “agent” and “representative.”
{¶11} Second, they argued that even if Dr. Huffer was Appellants’ “agent” and “representative,” there was insufficient evidence to show that Appellants were the source of the communications between Dr. Huffer and Appellants’ counsel.
{¶12} Third, they argued that while the work-product doctrine arguably applied to communications made by Appellants’ counsel to Dr. Huffer, “there ha[d] been no showing by affidavit or otherwise that [the] communications were made in anticipation of litigation, rather than keeping a family member of the clients informed”, and Appellants’ counsel had waived any protection by communicating with a non-party. (Dоcket No. 49, at p. 4).
{¶13} On January 21, 2016, Appellants filed their reply.
{¶14} First, they argued that the relevant inquiry in determining whether one is an agent or representative of a client is whether the purported agent/representative acted more as someone conveying information rather than a consultant. Appellants maintained that Dr. Huffer “served no purpose other than to communicate with counsel on his niece’s and nephew’s behalf” because “Blake is serving in the Army and Courtney is in college.” (Docket No. 51, p. 2).
{¶16} On January 29, 2016, the trial court granted, in part, and denied, in part, Appellants’ motion to quash. Its Entry stated, in part:
Regarding the first document request set forth in the subpoena, [Appellees] seek discovery of documents regarding any communications of [Blake and Courtney] regarding the [D]ecedent in the possession of Dr. Huffer. As to [Blake and Courntey’s] communications with the [D]ecedent or with Dr. Huffеr concerning this lawsuit, [Appellees] seek discovery from Blake [] and Courtney [], parties to this action. In that regard
Civ.R. 45(A) provides that “a subpoena may not be used to obtain . . . the production of documents by a party in discovery. Rather, . . . documents or electronically stored information may be obtained from a party in discovery оnly pursuant toCiv.R. 34 .” Thus, the subpoena of the [Appellees] for communications between [Blake and Courtney] to anyone about [the Decedent’s] case must be made underCiv.R. 34 to them. Accordingly, the motion to quash as to communications of [Blake and Courtney] concerning the [D]ecedent is WELL TAKEN.Addressing the subpoena as it relates to Dr. Huffer’s сommunication with [Jody] and employees of the law firm of Dinsmore and Shohl, LLP regarding the [D]ecedent, that matter is not subject to any privilege or work product exception. Accordingly, the subpoena commanding Dr. Huffer to produce his communications with [Jody] and the employees of the law firm of Dinsmore and Shohl, LLP is subject to production.
(Docket No. 54, p. 2-3).
{¶17} It is from this judgment that both parties appeal, presenting the following assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT VIOLATED THE ATTORNEY-CLIENT PRIVILEGE DENYING APPELLANTS’ MOTION TO QUASH SUBPOENA.
Assignment of Error No. II
THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE PRODUCTION OF DOCUMENTS PROTECTED BY THE WORK PRODUCT DOCTRINE.
Appellees’ Cross-Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT
{¶18} Due to the nature of Appellants’ assignments of error, we elect to address them together.
Appellants’ Assignments of Error Nos. I & II
{¶19} In their first and second assignments of error, Appellants argue that the trial court erred in denying their motion to quash insofar as it ordered Dr. Huffer to turn ovеr his communications with their counsel. Specifically, Appellants argue that the communications are protected under the attorney-client privilege and the work-product doctrine. We disagree.
{¶20} “Ordinarily, a discovery dispute is reviewed under an abuse of discretion standard.” Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, ¶ 13 (2010). But “if the discovery issue involves an alleged privilege * * * it is a question of law that must be reviewed de novo.” Id.; see also Roe v. Planned Parenthood S.W. Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, ¶ 29.
{¶21} We note, however, that the Ohio Supreme Court has previously expressed that “[t]he existence of a
{¶22} Under either standard of review, we reach the same result.
Civ.R. 26(B) and 45(C)
{¶23} The Rules of Civil Procedure provide liberal discovery provisions. Thе scope of discovery includes “any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party * * *.” (Emphasis added.)
{¶24} One available means of discovery is a
* * *
(iv) produce and permit inspection and copying of any designated documents or electronically stored information that are in the possession, custody, or control of the person;
* * *
{¶25} However, “[o]n a timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order aрpearance or production only under specified conditions, if the subpoena * * * [r]equires disclosure of privileged or otherwise protected matter and no exception or waiver applies * * *.”
{¶27} “The burden to show that testimony or documents are confidential or privileged is on the pаrty seeking to exclude the material.” Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, ¶ 19 (1st Dist.), citing Lemley v. Kaiser, 6 Ohio St.3d 258, 263-264 (1983); see also Waldmann v. Waldmann, 48 Ohio St.2d 176, 178 (1976) (“[T]he burden of showing that testimony sought to be excluded under the doctrine of privileged attorney-client communications rests upon the party seeking to exclude it.”); Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d 53, 2008-Ohio-4333, ¶ 17 (9th Dist.) (“The party claiming the privilege has the burden of proving that the privilege applies to the requested information.”).
Attorney-Client Privilege
{¶28} “The attorney-client privilege is one of the oldest recognized privileges for confidential communications.” State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 19, quoting Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). It “is the cornerstone upon which the attorney-client relationship is formed.” G. Rand Smith Co., L.P.A. v. Footbridge Capital, LLC, 3rd Dist. Union No. 14-01-39, 2002-Ohio-2189, ¶ 7.
{¶29} In Ohio, the attorney-client privilege is governed by both
{¶30} Whether the communications between Dr. Huffer and Appellants’ counsel are protected by the attorney-client privilege depends on whether Dr. Huffer is a “client” within the meaning of the privilege. Although this matter falls outside the scope of
a person * * * that, directly or through any representative, consults an attorney for the purpose of retaining the attorney or securing legal
service or advice from the attorney in the attorney‘s professional capacity, оr consults an attorney employee for legal service or advice, and who communicates, either directly or through an agent * * * or other representative, with such attorney * * *.
{¶31} Here, the only piece of evidence supporting the existence of an attorney-client relationship between Dr. Huffer and Appellants’ counsel is Dr. Huffer’s sworn statement that he “assumed the role of representative and agent for Blake and Courtney for purposes of this litigation.” (Docket No. 48, Ex. 2, p.1). The record contains no evidence from which one could conclude that Blake and/or Courtney designated, appointed, or otherwise requested Dr. Huffer to act аs their agent and representative for purposes of this litigation. For example, Dr. Huffer’s affidavit did not explain how he came to “assume” this role, and neither Blake nor Country submitted an affidavit supporting Dr. Huffer’s statement.
{¶32} While Appellants argue that Dr. Huffer “assumed” this role due to the fact that Blake was in the Army and Courtney was in college, this evidence is not contained in Dr. Huffer’s affidavit, and even if it were, it is not evidence that Appellants’ counsel’s clients—Blake and Courtney—designated, appointed, or otherwise requested Dr. Huffer to act as their agent or representative within the meaning of the privilege.
{¶33} Importantly, Appellants never requested an evidentiary hearing during which they could have presented additional evidence supporting the existence of an attorney-client relationship between Dr. Huffer and Appellants’
{¶34} For these reasons, we cannot say that the trial court erred in denying Appellants’ motion to quash on the grounds that the communications were not protected under the attorney-client privilege because Appellants did not meet their burden of proving that the privilege applied to the requested information.
Work-Product Doctrine
{¶35}
{¶37} In the alternative, Appellants ask that the matter be remanded so that the trial court can hold an in camera review of the documents. Presumably, these documents reflect communications between Dr. Huffer and Appellants’ counsel. But, again, Appellants never requested an in camеra review during which they could have presented the documents to the trial court for review, and
{¶39} Accordingly, we overrule Appellants’ first and second assignments of error.
Appellees’ Cross-Assignment of Error
{¶40} In their cross-assignment of error, Appellees argue that the trial court erred in finding that the subpоena for communications between Appellants and Dr. Huffer must be made under
{¶41} Accordingly, Appellees’ cross-assignment of error is rendеred moot. App.R. 12.
{¶42} Having found no error prejudicial to the appellants, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/jlr