A court order compelling the production of materials, which would allegedly breach the confidentiality guaranteed by attorney-client privilege, is a final, appealable order, which can be subject to immediate review by an appellate court, the Ohio Supreme Court ruled today.

The Court also drew the same conclusion today in a second case with similar discovery issues but involving grand jury proceedings rather than civil actions.

In the civil case, the Court determined that because the Cleveland Clinic and Cleveland Clinic Health System “plausibly alleged” that attorney-client privilege would be violated by the release of a hospital report about a 2012 slip-and-fall incident, the trial court’s decision compelling disclosure was a final, appealable order. Allowing an appeal only after the document is disclosed and the trial court issues final judgment in the case would not provide an adequate remedy, the lead opinion written by Justice Judith Ann Lanzinger stated.

However, claims during discovery asserting certain other protections – such as attorney work-product doctrine – may require more than a mere statement that materials are privileged and instead may require a showing that an adequate remedy is not available after a court’s final judgment, Justice Lanzinger wrote.

Justice Sharon L. Kennedy and two other justices concurred only in the Court’s judgment that the trial court’s order to provide the hospital incident report was final and appealable. In a concurring opinion, Justice Kennedy disagreed with the distinctions made in the lead opinion between attorney-client privilege and attorney work product. In her view, a court order requiring the release of allegedly privileged documents, whether believed to be protected by attorney-client privilege or by attorney work-product doctrine, is always a final, appealable order because the release of the document is an action that cannot be undone.

As the lone dissenter, Justice Paul E. Pfeifer countered that the Court has improperly characterized the hospital incident report a product of attorney-client privilege, when it was simply a business record.

Among other information, Burnham asked during discovery for the incident report the clinic had created after she fell. The clinic maintained the report was shielded from discovery based on various protections, including attorney-client privilege.

The trial court reviewed materials filed under seal, including the hospital report and briefs from both sides on the issue, and then ordered the clinic to provide the report to Burnham.

The clinic appealed to the Eighth District Court of Appeals, which dismissed the matter because it concluded it had no jurisdiction to review the appeal based on the 2015 Ohio Supreme Court decision Smith v. Chen. The Eighth District stated the appeal was not made from a final, appealable order because the clinic had not established that it would be harmed by the disclosure of the incident report in the manner stated in R.C. 2505.02(B)(4). The statute explains when orders are final and can be appealed.

The hospital filed an appeal with the Ohio Supreme Court, which agreed to consider the issues.

Court Clarifies Chen
Justice Lanzinger noted that the Court accepted this case in part to clarify Chen, in which the Court reviewed a provision in R.C. 2505.02(B)(4) to decide whether a discovery order involving a surveillance video described as attorney work product was final and appealable.

She reasoned that the Court’s ruling in Chen was limited because Chen did not meet the requirement of R.C. 2505.02(B)(4)(b), which states an appellant must establish that he “would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.”

“As some confusion seems to exist over the breadth of that decision, we limit it solely to its facts,” she wrote. “We see no need to overrule the case altogether despite the impassioned arguments within the lengthy concurring opinion.”

She explained that the Chen decision was not broad or expansive, but instead dealt only with the attorney work-product doctrine.

“We now clarify that Chen did not apply to the attorney-client privilege,” she stated.

Attorney-Client Privilege vs. Attorney Work-Product
Justice Lanzinger wrote that differences between the attorney-client privilege and the attorney work-product doctrine also explain why Chen does not control the outcome of this case. She explained that the main purpose of the attorney-client privilege is to promote open communication between attorneys and clients, while work-product protections “prevent an attorney from taking undue advantage of his adversary’s industry or efforts,” citing a court rule for discovery in civil cases.

Unless a waiver or exception applies, attorney-client privilege gives complete protection. However, based on judicial rules and common law, the work-product doctrine may provide protection from discovery, Justice Lanzinger wrote. Although the privilege and the doctrine could apply to the same material, the protections do not overlap fully, she noted.

“Exposure of the information that is to be protected by attorney-client privilege destroys the confidentiality of possibly highly personal or sensitive information that must be presumed to be unreachable,” she explained.

“But the same guarantee of confidentiality is not at risk with an attorney’s work product,” she continued. “[A]ny harm from disclosure would likely relate to the case being litigated, meaning that appellate review would more likely provide appropriate relief. … [I]t does not necessarily involve the inherent, extrajudicial harm involved with a breach of the attorney-client privilege.”

She added that trial courts should explain their reasons when ordering materials to be produced in discovery because parties may claim many types of privilege when arguing against disclosure.

In this case, “[b]ecause the [c]linic raised a colorable claim that its report was protected by the attorney-client privilege, the court’s order compelling disclosure of that report was a final, appealable order,” Justice Lanzinger wrote. The Court returned the case to the court of appeals, ordering it to evaluate whether the trial court’s decision to release the hospital incident report was made in error.

“Contrary to the dissent’s view, we are not characterizing the requested material as being covered by the attorney-client privilege, but are merely requiring appellate review of the trial court’s decision,” Justice Lanzinger noted.

Concurring Justices Dispute Work-Product Distinction
Justice Kennedy explained that she agrees that the trial court’s order to give Burnham the hospital report was a final, appealable order. However, she described the lead opinion’s analysis as “incomplete and disingenuous.”

The lead opinion “manufactures an artificial distinction” between the attorney-client and work-product privileges, then creates a new rule and distinguishes Chen to try to salvage that decision, she maintained.

Justice Kennedy stated that the lead opinion’s conclusion fails to “recognize the common-law origins of the work-product doctrine and that some of the protection provided by the work-product doctrine exceed the protection of [the Civil Rules]. The conclusion also elevates statutory privileges over the work-product doctrine set forth in [the Civil Rules], even though the Civil Rules are promulgated pursuant to the authority conferred upon the court by the Ohio Constitution.” 

She wrote that the myopic nature of the lead opinion has diminished the status of the work-product privilege, which is essential to protecting the attorney-client relationship.

“With this decision, the court opinion systematically declares that a document allegedly privileged under the work-product doctrine does not meet the standard established in R.C. 2505.02(B)(4)(b) unless some special showing is somehow made,” her concurring opinion stated. “Given that Civ.R. 26 provides protection to a broad class of documents and materials, the release of privileged documents necessarily puts the party protecting these materials into the category of those ‘not … afforded a meaningful or effective remedy by an appeal following final judgment.’ A released document never regains privileged status. The ‘proverbial bell cannot be unrung.’”

Justice Kennedy added, “Limiting Chen as applying only to an asserted privilege for work-product materials and not to materials covered by attorney-client privilege is without basis, and the folly of that exercise will been seen in the litigation that is sure to follow.”  Therefore, she stated that the Court should overrule Chen and restore the stability and predictability to the law as it existed before that ruling. 

Justices Terrence O’Donnell and Judith L. French joined Justice Kennedy’s opinion.

Dissent Maintains Report Was Not Privileged
In his dissent, Justice Pfeifer described this lawsuit as a “run-of-the-mill, wet-floor, slip-and-fall case.” He took issue with the Court’s elevation of the hospital’s incident report to a document protected by attorney-client privilege – “to protect the Cleveland Clinic from what exactly — the disclosure of its top-secret ratio of water to Mop & Glo?”

He noted that the trial court reviewed the report in camera and decided it was not privileged. Describing the report as a business record that involved no interaction between the hospital and its counsel, he concluded the trial court decision can be reviewed through the typical appeals process.

2015-1127. Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000.

View oral argument video of this case.

In a separate opinion authored by Justice Lanzinger, the Court found that an order enforcing a grand jury subpoena and ordering the production of allegedly privileged information is a final order that can be appealed.

The decision resolves a conflict among a recent Eighth District Court of Appeals decision and opinions from 2002 and 2003 by the Fourth and Tenth District appellate courts. All the documents in the Eighth District case are sealed, and none of the parties are identified.

Company Seeks to Shield Documents from Grand Jury
A Cuyahoga County grand jury issued subpoenas to individuals associated with the appellants in the case. The recipients moved to quash the subpoenas, which sought documents and testimony, arguing the information was protected by attorney-client privilege, the “attorney work-product doctrine,” and the “common-interest doctrine.” The trial court overseeing the grand jury denied the motions, finding the materials were no longer or never were protected by a privilege.

The recipients appealed to the Eighth District, which declined to address the matter. The appellate court reasoned that grand jury proceedings are not “actions” under R.C. 2505.02(A)(3) and that an order requiring the production of privileged information is not a “provisional remedy” subject to appeal under R.C. 2505.02(B)(4). The Eighth District also certified its decision was in conflict with the Fourth and Tenth districts and the Supreme Court accepted the case to resolve the conflict.

Grand Jury Order Subject to Appeal 
Justice Lanzinger explained the term “action” is not defined in R.C. 2502.02. To determine the meaning of the term, the Eighth District turned to the definition of “action” in R.C. 2307.01, which defines it as a proceeding that ends with a judgment or decree. Because grand jury proceeding are investigatory with no judgment or decree, the Eighth District concluded they are not actions that can be appealed.

Justice Lanzinger noted R.C. 2307.01 pertains to civil cases and not criminal proceedings. She wrote the Fourth and Tenth districts took a different approach, finding the motion to quash a grand jury subpoena is an “ancillary action”that aids a grand jury. That reasoning implies that a grand jury proceeding is a “provisional remedy” under the law, which then subjects the proceedings to the test in R.C. 2505.02(B)(4) to determine if an affected party can appeal.

While the Ohio Supreme Court has never addressed whether grand jury proceedings are actions, Justice Lanzinger cited the Court’s 1980 Bernbaum v. Silverstein decision, which found grand jury proceedings are “ordinary proceedings” similar to the proceedings of criminal courts.

“The proceedings involve the regular process of our criminal procedure and end in the grand jury’s production of either a no bill decision or true bill decision, which will then result in a judgment for either the defendant or the state. Under the broader definition of ‘action’ supplied in Bernbaum, a grand jury proceeding constitutes an action,” she wrote.

Justice Lanzinger also noted the Court’s decision applies only to claims of documents protected by attorney-client privilege, and not to claims of work product or common-interest doctrine.

“Our conclusion that an order enforcing a grand jury subpoena and ordering of allegedly privileged information is final and appealable thus fits within the framework of our criminal procedure, for the only way to prevent grand juries from potentially violating a privilege and forcing parties to disclose privileged information is to allow those parties the opportunity to appeal before divulging that information,” she concluded.

Chief Justice O’Connor and Justices Pfeifer and O’Neill joined Justice Lanzinger’s opinion. Justice O’Donnell concurred in judgment only and noted that he concurred in the conclusion that the order enforcing a grand jury subpoena for the production of allegedly privileged information is a final order.

Concurring Justice Maintains Ruling Will Cause Confusion
Justice Kennedy issued a separate concurring opinion in judgment only, stating she agreed with the majority that the grand jury proceeding constitutes an action. However, she maintained the majority relies on the Burnham decision, which distorts the significance of the attorney work-product doctrine, and will cause confusion for trial courts and attorneys.

Justice Kennedy stated that the court’s opinion continues the disservice to the bar and bench begun in Chen: “As a result of this new legal architecture, trial courts must now consider materials protected by attorney-client privilege in a separate framework from those protected by work-product privilege, based on the source to the privilege.” 

She also wrote that the majority’s broad syllabus language raised many questions. For example, does a litigant merely need to allege that the material sought contains privileged information? Does a trial court need only determine whether the privilege was adequately “alleged”? 

In again concluding that Chen should be overruled, Justice Kennedy stated that “the parsing of the term ‘privilege’ in Burnham typifies the problem we have brought upon ourselves by failing to recognize that Chen was wrongly decided

Justice French joined Justice Kennedy’s opinion.

2015-1181 and 2015-1182. In re Grand Jury Proceeding of John Doe, Slip Opinion No. 2016-Ohio-8001.

View oral argument video of this case.

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