Some information and records compiled by law enforcement and the county prosecutor’s office during an investigation into internet sweepstakes cafés are subject to discovery, the Eighth District Court of Appeals ruled on October 31. However, the court ruled that some of the information is privileged and not subject to discovery.

Several internet sweepstakes cafés sued Cuyahoga County Prosecutor Timothy J. McGinty in Cuyahoga County Common Pleas Court after receiving cease and desist letters alleging they were operating in violation of several Ohio gambling laws. The trial court ordered the prosecutor’s office to turn over materials and answer interrogatories in a declaratory judgment action. McGinty appealed that decision to the Eighth District.

In the appeals court’s unanimous decision, authored by Judge Eileen A. Gallagher, she noted that “the question presently before this court is not the legality of internet sweepstakes cafés in Cuyahoga County.”

Rather, Judge Gallagher wrote, “the principal question posed by this appeal is the extent to which information and records compiled by law enforcement and a county prosecutor’s office are subject to discovery in a civil action.”

McGinty argued the trial court erred in its ruling because its “discovery order violates the law enforcement investigatory privilege, the attorney work-product doctrine and the deliberative-process privilege.”

The appeals court discussed the rules of civil procedure, Ohio Supreme Court cases, state statutes, privileges, and doctrines relevant to each assignment of error raised by McGinty before affirming in part, reversing in part, and remanding the case to the trial court.

“We affirm the trial court’s order to produce the police reports containing factual information gathered in the undercover investigation of the internet sweepstakes cafés within Cuyahoga County,” Judge Gallagher wrote. “These reports are directly relevant to the alleged conduct of the internet sweepstakes cafés involved in this case because any factual disputes regarding the nature of their business must necessarily be resolved prior to the ultimate resolution of the legal question at the heart of this declaratory judgment action.”

However, the appeals court reversed the trial court’s order for materials that “contain primarily internal communications or investigative decisions and lack the factual content that the other reports contain. We find these materials lacking in relevant information to this civil action and, as such, are precluded from discovery pursuant to the law enforcement investigatory privilege.”

As for the series of emails between the prosecutor’s office and the lead investigator, the court found the vast majority of these were also protected by the law enforcement investigatory privilege, “and because they are completely lacking in factual content relevant to the present dispute, we hold that they are not subject to discovery.”

“Finally,” Judge Gallagher wrote, “with regard to the interrogatories that the trial court ordered appellant to answer, we find that a significant number pose questions that are not relevant to the underlying declaratory action and unnecessarily intrude upon the investigative process.”

Judges Tim McCormack and Mary Eileen Kilbane joined the opinion.

J&C Marketing, L.L.C. v. McGinty, 2013-Ohio-4805
Opinion: http://sc.ohio.gov/rod/docs/pdf/8/2013/2013-ohio-4805.pdf
Civil Appeal From: Cuyahoga County Common Pleas Court
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Remanded
Date of Judgment Entry on Appeal: October 31, 2013

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