A court reporter cannot immediately appeal a judge’s demand to privately review sealed grand jury materials, the Ohio Supreme Court ruled today.

In a 6-1 decision, the Supreme Court indicated that a Cuyahoga County court reporter’s attempt to quash a subpoena duces tecum to turn over grand jury records for a judge’s in camera inspection could not be appealed during the middle of pretrial proceedings. The Court reasoned that although a judge’s order to disclose grand jury records to a party in a civil case would be immediately appealable, the judge’s own inspection of the records is merely a step leading up to that order.

Writing for the Court majority, Justice Mary DeGenaro wrote an appellate court only has the authority to review a challenge to a “final, appealable order” as defined in R.C. 2505.02, and a judge’s order to review materials does not fit within the statute's definition. It could have been immediately appealed only if — after the judge reviewed the material — the judge had directed the reporter to hand it over to a former Cuyahoga Community College District police dispatcher who was suing the college over his termination.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the opinion.

In a dissenting opinion, Justice Terrence O’Donnell stated the Court has taken the unprecedented step of opening the door for requests for grand jury transcripts without articulating a “particularized need” for the materials, which the Court has long required.

Employee Fights Criminal Charge, Termination
George Daher was hired as a part-time police dispatcher by the Cuyahoga Community College District in 2012, and he was fired in 2015. Daher was criminally charged in Cuyahoga County Common Pleas Court with the unauthorized use of property. He then filed a civil lawsuit against the college, alleging employment discrimination and retaliation.

Not long after Daher was indicted, the trial court dismissed the criminal case and sealed the record. Daher then added a claim of malicious prosecution to his civil lawsuit against the university and several of its employees.

Daher subpoenaed the Cuyahoga County court reporter to turn over all transcripts, notes, and exhibits from the grand jury proceedings related to his indictment.

The court reporter moved to invalidate the subpoena, contending the materials were secret and Daher failed to meet the standard required to obtain the material. The court reporter cited the Ohio Supreme Court’s 1980 In re Petition for Disclosure of Evidence Presented to Franklin Cty. Juries in 1970. The decision required a person to show a “particularized need for disclosure that outweighs the need for secrecy.”

Daher replied by stating he needed the grand jury materials to refute that there was probable cause to indict him for a crime, and without it, he would not be able to win his malicious prosecution claim. The trial court judge, who was not the judge that presided over the grand jury proceedings, requested an in camera inspection of the material before ruling on whether to stop the subpoena.

The court reporter appealed the order to the Eighth District Court of Appeals. The Eighth District ruled the judge’s order was not a final, appealable order that the court could consider. Only if the judge required that the materials be disclosed to Daher could the Court review the case, the appellate court wrote.

The court reporter appealed the Eighth District’s decision to the Supreme Court, which agreed to hear the case.

Court Examines Law to Challenge Trial Court Decisions
Justice DeGenaro explained the court reporter raised two questions for the Court to consider. The reporter argued that under the rule stated in Petition for Disclosure of Evidence, Daher could not obtain a judge’s inspection of the grand jury materials by issuing a subpoena. The only way the grand jury materials could be disclosed outside of a criminal proceeding would be by filing a petition to the “supervising court” of the grand jury and demonstrating a particularized need for the information, the reporter maintained.

The court reporter also asserted that under R.C. 2502.02 (B)(4), an order by a judge to conduct the in camera inspection of grand jury proceedings is a final, appealable order.

The majority opinion stated that it must first examine the requirements of R.C. 2505.02(B)(4) to determine if the Eighth District had jurisdiction to consider the appeal at all before the Court could reach the merits of the appeal, specifically the question whether Daher could attempt to access the records by subpoena.

To qualify for immediate appellate review under R.C. 2502.02(B)(4), Justice DeGenaro wrote, “the court reporter must show that (1) the order grants or denies a provisional remedy, (2) the order in effect determines the action with respect to that provisional remedy, and (3) he would not be afforded meaningful review of the decision if he had to wait for final judgment.” The definition of “provisional remedy” includes the disclosure of confidential matters such as grand jury materials.

The court reporter argued the trial judge’s request to inspect the records is a decision that “determines the action” because it “implicitly sanctions the use of a civil subpoena to gain access to grand-jury materials.” The reporter asserted that disregard for the procedure stated in Petition for Disclosure of Evidence should be an order that can be appealed regardless of whether the materials are disclosed to Daher.

Judge’s Inspection Does Not Constitute Disclosure of Confidential Matters
The opinion stated that although disclosure of the grand jury materials to Daher would be a “provisional remedy,” an in camera inspection is a separate procedure that a judge can use prior to deciding whether to grant or deny that provisional remedy.

“We acknowledge the importance of the secrecy afforded to grand jury proceedings, which is meant ‘to protect witnesses  from retaliation, to prevent tampering with witnesses who may be called to testify at a resulting trial, and to prevent publication of unwarranted charges against an innocent target,’ ” the opinion stated, citing the Court’s 1999 In re Special Grand Jury Investigation Concerning Organic Technologies decision.

A judge’s private review prior to any order to disclose grand jury materials does not compromise the secrecy of the grand jury, the Court stated, and the process must “trust judges” to keep confidential information confidential.

Justice DeGenaro explained that an in camera inspection offers the trial court an opportunity to review materials without compromising the confidentiality of the information and the review does not cause the materials to be disclosed to the parties, the attorneys in the case, or the public. The Court described the review as “only a minimal first step” in the process of resolving discovery disputes among parties in a lawsuit.

Only if a judge orders disclosure of the materials would the court reporter be able to use an immediate interlocutory appeal as a means to challenge the court’s action, the Court concluded, affirming the Eighth District’s decision.

Dissent Argues “Particularized Need” Must Be Demonstrated
In his dissent, Justice O’Donnell stated that the standard of showing a particularized need must be met by a party before allowing access to a grand jury transcript. He points out that having a judge first decide to release the information before a showing of particularized need is “backward.”

And he stated, “it is the hope of the majority that the trial court would be able to maintain the secrecy of a grand jury. Good luck with that!”

He also wrote that he agrees with the court reporter’s assertion that the only way to review a grand jury transcript is by demonstrating a particularized need, not issuing a subpoena and conducting an in camera review.

“The majority jurists will eventually come to see the folly of today’s opinion, but it will be too late to correct the damage caused by its ill-advised, hastily-considered judgment,” he concluded.

2017-0828. Daher v. Cuyahoga Community College Dist., Slip Opinion No. 2018-Ohio-4462.

View oral argument video of this case.

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