Burnham v. Cleveland Clinic, 2015–1127.

• Decision Date: 07 December 2016
• Docket Number: No. 2015–1127.,2015–1127.
• Parties: BURNHAM, Appellee, v. CLEVELAND CLINIC et al., Appellants.
• Court: Ohio Supreme Court

151 Ohio St.3d 356

89 N.E.3d 536

2016 Ohio 8000

BURNHAM, Appellee,

v.CLEVELAND CLINIC et al., Appellants.

No. 2015–1127.

Supreme Court of Ohio.

Submitted May 4, 2016.

Decided Dec. 7, 2016.

Obral, Silk & Associates, L.L.C., Alexander L. Pal, and Thomas J. Silk, Cleveland, for appellee.

Bonezzi, Switzer, Polito & Hupp Co. L.P.A., Bret C. Perry, and Jason A. Paskan, Cleveland, for appellants.

Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland, urging affirmance for amicus curiae Ohio Association for Justice.

Reminger Co., L.P.A., and Martin T. Galvin, Cleveland, urging reversal for amicus curiae Academy of Medicine of Cleveland & Northern Ohio.

Bricker & Eckler L.L.P., Anne Marie Sferra, Columbus, and Kara Herrnstein, urging reversal for amici curiae Ohio Hospital Association and Ohio State Medical Association.

LANZINGER, J.

{¶ 1} We accepted this discretionary appeal to resolve whether an order compelling the production of documents allegedly protected by the attorney-client privilege is a final, appealable order under R.C. 2505.02(B)(4). We also accepted review to clarify our holding regarding privilege, the attorney-work-product doctrine, and R.C. 2505.02(B)(4)(b) in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633.

{¶ 2} We hold that an order requiring the production of information protected by the attorney-client privilege causes harm and prejudice that inherently cannot be meaningfully or effectively remedied by a later appeal. Thus, a discovery order that is alleged to breach the confidentiality guaranteed by the attorney-client privilege satisfies R.C. 2505.02(B)(4)(b) and is a final, appealable order that is potentially subject to immediate review. Other discovery protections that do not involve common-law, constitutional, or statutory guarantees of confidentiality, such as the attorney-work-product doctrine, may require a showing under R.C. 2505.02(B)(4)(b) beyond the mere statement that the matter is privileged. Our holding in Chen is limited to the latter context.

{¶ 3} Because appellants, the Cleveland Clinic and Cleveland Clinic Health System ("Clinic"), have plausibly alleged that the attorney-client privilege would be breached by disclosure of the requested materials, the order compelling the disclosure is a final, appealable order. 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. We therefore reverse the dismissal of the appeal and remand to the court of appeals to determine whether the trial court erred in ordering the incident report released.

BACKGROUND

{¶ 4} In March 2014, appellee, Darlene Burnham, brought a personal-injury action against the Clinic and certain Clinic employees. She alleged that she had slipped and fallen in her sister's hospital room at the Clinic in July 2012. Allegedly, an employee had poured liquid on the floor and had failed to warn Burnham of the hazardous condition.

{¶ 5} During discovery, Burnham requested identification of any person who had made statements or reports about her accident and copies of any written statements or reports. Although the employee involved was identified, neither party could locate her for deposition. Burnham also requested an incident report that she learned had been created. But the Clinic alleged that the report was not discoverable because it was shielded by various discovery protections, including the attorney-client privilege.

{¶ 6} Burnham filed a motion to compel discovery. The trial court ordered the Clinic to provide Burnham with a privilege log and directed the parties to brief the issue of privilege. Included with the Clinic's privilege log, filed under seal, was a copy of the report and an affidavit from the Clinic's deputy chief legal officer averring that the report had been generated as part of its protocol to notify the Clinic's legal department of events that might be the basis for legal action. After reviewing the parties' briefs and the privilege log, the court concluded that Burnham's motion to compel should be granted. The court ordered the Clinic to produce the July 2012 incident report.

{¶ 7} The Clinic appealed to the Eighth District Court of Appeals, arguing that the incident report was protected by the attorney-client privilege and was not discoverable. The Eighth District dismissed the appeal for lack of jurisdiction, citing Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633. The appellate court held that there was no final, appealable order to review because the Clinic had failed to affirmatively establish that there would be prejudice resulting from disclosure of the incident report sufficient to satisfy R.C. 2505.02(B)(4). 2015-Ohio-2044, 2015 WL 3421460, ¶ 13.

{¶ 8} We accepted the appeal on one proposition of law: "An order requiring production of privileged documents, conversations or other materials is a final, appealable order pursuant to R.C. 2505.02(B)(4), thereby conferring jurisdiction over the issue to the court of appeals under Article IV, Section 3(B)(2)."¹

144 Ohio St.3d 1425, 2015-Ohio-5225, 42 N.E.3d 762.

LEGAL ANALYSIS

{¶ 9} We accepted jurisdiction to clarify Chen, a case that reviewed R.C. 2505.02(B)(4)(b) to determine whether a discovery order involving attorney work product was final and appealable. As some confusion seems to exist over the breadth of that decision, we limit it solely to its facts. We see no need to overrule the case altogether despite the impassioned arguments within the lengthy concurring opinion.

{¶ 10} Here, the Clinic asserts that its report is protected under the attorney-client privilege and that an order requiring disclosure should be reviewable immediately. R.C. 2505.02(B) states that an order is final and reviewable when it is:

(4) An order that grants or denies a provisional remedy and * * * both of the following apply:

(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.

(b) The appealing party 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.

A provisional remedy is defined as "a proceeding ancillary to an action, including, but not limited to * * * discovery of privileged matter." R.C. 2505.02(A)(3).

{¶ 11} Chen, although considering the same statutory language, involved only the attorney-work-product doctrine rather than the attorney-client privilege and does not determine the outcome here.

Smith v. Chen

{¶ 12} In a medical-malpractice action brought by Henry Smith against Dr. Ying Chen and OrthoNeuro (collectively "Chen"), the trial court ordered Chen to disclose a video-surveillance recording that his attorney had prepared for use as impeachment evidence at trial. Smith v. Chen, Franklin C.P. No. 10 CV 18058, 2012 WL 11966963 (Dec. 5, 2012). Chen had claimed that the video was privileged as attorney work product pursuant to Civ.R. 26(B)(3), which allows discovery of the opposing party's attorney work product "only upon a showing of good cause." The trial court found the plaintiff to have shown good cause because the risk to Smith of surprise and unfairness during trial outweighed Chen's interest in nondisclosure prior to trial.

{¶ 13} The Tenth District Court of Appeals affirmed the trial court's order. While acknowledging that discovery orders are interlocutory and therefore generally not final and appealable, it held that it had appellate jurisdiction over discovery orders involving privilege. Smith v. Chen, 10th Dist. Franklin No. 12AP–1027, 2013-Ohio-4931, 2013 WL 5972391, ¶ 10. The court of appeals stated that because the attorney-work-product doctrine is a "qualified privilege," an order for the disclosure of attorney work product is final and appealable. Id. at ¶ 11.

{¶ 14} We initially accepted discretionary review to decide whether an order compelling production of surveillance video created only for impeachment purposes violates the attorney-work-product doctrine of Civ.R. 26(B)(3). 138 Ohio St.3d 1447, 2014-Ohio-1182, 5 N.E.3d 666. We later ordered the parties to show cause why the matter should not have been dismissed for lack of a final, appealable order pursuant to R.C. 2505.02. 141 Ohio St.3d 1461, 2015-Ohio-370, 24 N.E.3d 1180. In his response, Chen merely repeated the appellate court's observation regarding qualified privileges. We concluded that Chen had failed to satisfy R.C. 2505.02(B)(4)(b), which requires an appellant to 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.’ " Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 5, quoting R.C. 2505.02(B)(4). We noted:

This ruling does not adopt a new rule, nor does it make an appeal from an order compelling disclosure of privileged material more difficult to maintain. An order compelling disclosure of privileged material that would truly render a postjudgment appeal meaningless or ineffective may still be considered on an immediate appeal.

(Emphasis sic.) Id. at ¶ 9. This language concerning "privilege" may seem to extend to all discovery orders. However, we emphasized that Chen involved a failure to respond to the issue being adjudicated:

Dr. Chen and OrthoNeuro have never argued, much less established, that they would not be afforded a meaningful or effective remedy through an appeal after a final judgment is entered by the trial court resolving the entire case. They did not address the issue in any of their briefs here or in the court of appeals. The only reference to the statute defining final, appealable order that Dr. Chen and OrthoNeuro make is in their docketing statement filed in the court of appeals, in which the statute is

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