As previously posted, Ohio’s final appealable order statute, Ohio Revised Code Section 2505.02, is complex and fraught with traps for the unwary. It can be difficult for counsel to discern or advise their clients with any high degree of confidence whether a given interlocutory decision by a trial judge is subject to immediate appeal, or whether that fight must await an appeal after final judgment. One specific context in which this vexing issue can arise relates to discovery orders compelling the production of allegedly privileged information, or the production of information potentially subject to the attorney work-product doctrine. Earlier this month, Ohio’s Eighth District Court of Appeals issued a decision in Blue Technologies Smart Solutions, L.L.C. v. Ohio Collaborative Learning Solutions, Inc. that illustrates potential pitfalls in this context.
Before we address Blue Technologies, let’s rewind a bit to reveal some of the confusion and disagreement caused by such discovery orders over the last several years and review the Ohio Supreme Court’s attempts to resolve the confusion.
A hazy line of precedent
In Smith v. Chen, 10th Dist. Franklin No. 12AP-1027, 2013-Ohio-4931, a medical malpractice case, the plaintiff moved to compel the production of surveillance evidence gathered by the defendants’ investigators. Over the defendants’ privilege and work-product objections, the trial court granted the plaintiff’s motion. When the defendants appealed from that interlocutory decision, a unanimous panel of Ohio’s Tenth District Court of Appeals held that because the order in question determined that the surveillance video was attorney work-product nevertheless subject to discovery for good cause, the order was final and appealable under R.C. 2505.02.
The Ohio Supreme Court, however, in a split decision, vacated the Tenth District’s unanimous decision in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480. Writing for the bare (four-Justice) majority, former Justice O’Neill opined that the appellants did not establish that the order was final and appealable. The applicable subdivision of the statute requires appellants to show they would not be afforded a meaningful remedy by an appeal after final judgment — this was a showing the majority decided the appellants had failed to make.
Justice Kennedy, writing for three dissenting Justices, noted many prior decisions holding that discovery orders compelling production of privileged information were final and appealable. She added that the majority’s holding “destabilizes the law” on this issue. Some appellate practitioners began to wonder how, as a practical matter, they should make the showing (the lack of a meaningful remedy by appeal after final judgment) that the Chen majority required. Must they somehow make that showing in the docketing statement, when the Notice of Appeal is filed? Must they submit an affidavit to the court of appeals if a motion to show cause for dismissal for lack of a final, appealable order is filed? Or, must they make the showing merely by argument in the merit brief?
Not long after Chen, the Ohio Supreme Court held that an order compelling the production of privileged (not work-product) information qualifies for immediate appeal. This expressly distinguished privileged matter from “other discovery protections that do not involve common-law, constitutional, or statutory guarantees of confidentiality, such as the work-product doctrine.” (Burnham v. Cleveland Clinic). The same year, in In re Grand Jury Proceeding of Doe, the Supreme Court again held that an order compelling a party to testify about allegedly privileged documents is final and appealable — without addressing work-product. Separately, Justice Kennedy argued that the Doe syllabus “causes confusion. Is the majority declaring that all a litigant need do to [establish a final appealable order] is allege that the material sought contains privileged information?”
After Chen, Burnham and Doe, the Tenth District addressed the lingering confusion regarding orders compelling disclosure of information alleged to be protected by the work-product doctrine (In re Special Jury Investigation of Medicaid Fraud & Nursing Homes). There, a rehabilitation and nursing center challenged a trial court’s order compelling the production of documents related to a self-reported incident submitted to the Ohio Department of Health. The trial court denied the nursing center’s work-product assertion and ordered production under penalty of contempt. In an initial interlocutory appeal, Grand Jury I, the Tenth District dismissed the appeal for lack of jurisdiction, holding (as the Supreme Court majority did in Chen) that the appellants had not established affirmatively that an immediate appeal was necessary to afford a meaningful and effective remedy.
On remand, the trial court again ordered the production to take place, and scheduled a show-cause hearing for sanctions. In a subsequent interlocutory appeal (Grand Jury II), the appellants argued that there would be no way to “unring the bell” in an appeal after final judgment, particularly in light of the possibility for contempt sanctions. This time, the Tenth District denied the state’s motion to dismiss the appeal for lack of a final appealable order, saying:
Applying the precedent that can be distilled from the Supreme Court’s recent cases, we acknowledge and accept appellants’ contention that the current appeal can be distinguished from the prior appeal that gave rise to our decision in Grand Jury I. Appellants have indeed argued here that they will suffer harm in the course of litigation that cannot be remedied by appeal after final judgment. This is, under Chen, Burnham, and Doe, as much or more than they would need to allege to maintain the appeal if all the protected documents were alleged to be subject to attorney-client privilege. As discussed above, however, those cases leave us less direction regarding materials subject only to the attorney-work-product protection. … Nonetheless, appellants cogently argue in the present appeal that, once disclosed, the information in question cannot be neutralized, and the state will forever have use of it in subsequent litigation before the trial court.
In a 2020 case announcement, the Ohio Supreme Court declined to review a discretionary appeal taken in the Grand Jury case. The following year, in State v. Glenn, the Supreme Court (in an opinion by Justice DeWine) held that a trial court’s order for defense counsel to prepare and disclose summaries of defense-witness statements did not satisfy the requirements of R.C. 2505.02(B)(4) for being a final, appealable order. Justice DeWine explained that the defendant had failed to show sufficiently that an appeal after final judgment would be an ineffective remedy:
In his response to the state’s motion to dismiss his appeal in the Second District, Glenn offered a single conclusory statement regarding the effective-remedy requirement, asserting that “[o]nce the information is released the privilege is violated.” And Glenn’s arguments in this court are similarly sparse. Echoing concerns discussed in Hickman, 329 U.S. at 513, 67 S.Ct. 385, 91 L.Ed. 451, Glenn suggests that by creating summaries of witness statements to comply with the court’s order, defense counsel might subject himself to being called to testify against Glenn’s witnesses should their testimony deviate from defense counsel’s recollections. He addresses the effective-remedy question by claiming, “Arguably, forcing an attorney into such a situation is not something that can be rectified on direct appeal and likely would lead to the consequences foreseen in Hickman.”
Although we acknowledge those concerns, there is no reason that such a situation could not be rectified in an appeal following final judgment. If that scenario comes to fruition and the appellate court determines that the trial court’s discovery order was improper, then it may grant Glenn a new trial and order the exclusion of the improperly disclosed statements. In fact, when pressed on the effective-remedy question during oral argument, the only concrete reasons that counsel for Glenn set forth to explain why a postjudgment appeal would not be effective was that Glenn might have to face a second trial and possible additional pretrial incarceration. But the possibility of retrial does not render the appeal mechanism ineffective. Those concerns are present in virtually every criminal appeal; that doesn’t mean they are sufficient to convert every interlocutory order into a final, appealable order.
The Eighth District weighs in
The Eighth District’s recent Blue Technologies decision, like Glenn, came to a different result than the Tenth District’s Grand Jury determination that an order compelling production of work-product was immediately appealable. Blue Technologies involved consolidated cases resulting from a commercial transaction relating to the sale of business assets and other collaborative agreements. A motion to compel certain discovery was filed, which was opposed in part on work-product grounds. At a lengthy hearing on the motion, the parties “failed to argue in any detail the work-product issue” or another contested issue (the disclosure of tax returns).
On appeal, Blue Technologies argued that the trial court’s ruling on the motion implicated work-product information. Ohio Collaborative Learning Solutions argued that the court of appeals lacked jurisdiction over the appeal due to a lack of a final, appealable order, and a unanimous panel of the Eighth District agreed. While acknowledging that an order requiring the disclosure of privileged information is immediately appealable under Burnham, the Eighth District (citing Chen) noted that the work-product doctrine “has been treated differently” when it comes to assessing finality and appealability under R.C. 2505.02. Specifically, the Eighth District explained:
Civ.R. 26(B)(4) specifically allows for the discovery of materials that constitute attorney work product with a showing of good cause. Some materials covered by the work-product doctrine are therefore readily discoverable. As a result, there is no assumption that appeal after final judgment does not constitute an adequate remedy like there is with attorney-client privilege.
Thus, the Eighth District (citing Glenn and Chen) assessed whether the appellant had demonstrated that an appeal after final judgment would be an effective remedy, and found the appellant’s showing lacking. This was in part because the appellant relied on precedent addressing compelled disclosure of privileged information rather than the line of cases described above addressing compelled disclosure of work product.
The Eighth District’s recent decision in Blue Technologies carries important lessons for litigators seeking to appeal from Ohio state-court discovery orders compelling the disclosure of privileged or work-product information. For one, litigators should be careful not to mix apples (of privilege) and oranges (of work product) in this context. Recent precedent in Ohio applies a different analysis to these different fruits, and it is generally easier immediately to appeal from orders compelling production of privileged information than it is to do so from work product.
Moreover, litigators may benefit from citing district-specific precedent that post-dates the Ohio Supreme Court’s decisions in Chen, Burnham, Doe and Glenn to ensure they are up to speed on how their appellate district is applying those Supreme Court decisions to particular discovery orders. For example, an appellant in the Tenth District seeking an immediate appeal from an order compelling the disclosure of work-product might benefit from that District’s Grand Jury decisions, but they still may want to ensure they create the type of record and meet the separate factors addressed more strictly in Glenn and Blue Technologies.