Edwards v. Edwards
| Decision Date | 31 December 2019 |
| Docket Number | NO. 2019-P-0046,2019-P-0046 |
| Citation | 2019 Ohio 5413,151 N.E.3d 6 |
| Parties | Walter EDWARDS, Jr., et al., Plaintiffs-Appellees, v. Bridget EDWARDS, et al., Defendants-Appellants. |
| Court | Ohio Court of Appeals |
Craig P. Kvale, Kvale Antonelli & Raj, 1406 West 6th Street, 2nd Floor, Cleveland, OH 44113 (For Plaintiffs-Appellees).
Mark S. Hura, The Cincinnati Insurance Co., 50 South Main Street, Suite 615, Akron, OH 44308; and Matthew S. Romano, Law Office of Matthew S. Romano, LLC, 7100 East Pleasant Valley Road, Suite 110, Independence, OH 44131 (For Defendants-Appellants).
{¶1} Appellants, Bridget Edwards and her spouse, Walter Edwards, Sr. ("Walter Sr."), appeal from the March 22, 2019 judgment entry of the Portage County Court of Common Pleas ordering them to disclose documents following a motion to compel discovery. The narrow issues before this court are whether appellants' will, trust, and estate planning documents are protected by the attorney-client privilege, and, if so, whether that privilege has been waived. We affirm in part and reverse in part the trial court's judgment.
{¶2} Appellees, Walter Edwards, Jr. ("Walter Jr.") and his spouse, Molly Edwards, filed a civil action against Appellant Bridget Edwards for (1) defamation; (2) intentional infliction of emotional distress; (3) undue influence; (4) making false police reports; (5) intentional interference with expectancy of inheritance; (6) frivolous conduct; and (7) abuse of process. Appellant Walter Sr. successfully intervened in the matter, and appellants filed counterclaims for (1) identity fraud and/or civil theft; (2) breach of fiduciary duty; (3) common law fraud; (4) unjust enrichment; (5) declaratory judgment; and (6) injunctive relief.
{¶3} After engaging in discovery, each side filed motions to compel production of various discovery requests with the trial court, as well as other associated motions. No depositions have been taken, and the present appeal challenges only one determination of the trial court.
{¶4} The trial court granted appellees' motion to compel with regard to production of appellants' wills, trusts, and estate planning documents. The following requests and responses were the subject of the trial court's ruling:
{¶5} The trial court determined that appellants must produce the will, trust, and estate planning documents because they are directly related to the litigation of the claims in this matter. Further, the trial court stated that no privilege had been asserted by appellants with regard to these documents; or, in the alternative, that any potential privilege had been waived.
{¶6} Appellants filed a timely notice of appeal and raise one assignment of error. Appellants' sole assignment of error states:
{¶7} "The trial court committed prejudicial error when it granted Plaintiffs-Appellees' motion to compel production of Defendants-Appellants' will, trust and estate planning documents that are protected by the attorney-client privilege under Ohio law, which privilege has not been waived."
{¶8} Civ.R. 26(B)(1). " ‘The burden to show that testimony or documents are confidential or privileged is on the party seeking to exclude the material.’ " Ro-Mai Industries, Inc. v. Manning Properties , 11th Dist. Portage No. 2009-P-0066, 2010-Ohio-2290, 2010 WL 2025755, ¶25, quoting Grace v. Mastruserio , 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶19 (1st Dist.).
{¶9} "The trial court has discretionary power to regulate discovery and its decisions will generally not be overturned absent an abuse of that discretion." Id. at ¶26, citing Mauzy v. Kelly Services, Inc. , 75 Ohio St.3d 578, 664 N.E.2d 1272 (1996) and State ex rel. Daggett v. Gessaman , 34 Ohio St.2d 55, 295 N.E.2d 659 (1973). " ‘But whether the information sought is confidential and privileged from disclosure is a question of law that is reviewed de novo.’ " Id. , quoting Medical Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181, 2009-Ohio-2496, ¶13, 909 N.E.2d 1237. " ‘When a court's judgment is based on an erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate.’ " Id. , quoting Schlotterer , supra , 909 N.E.2d 1237, at ¶13.
{¶10} There is a common law attorney-client privilege and a statutory version. Ohio has codified the statutory version of the attorney-client privilege in R.C. 2317.02, which provides in pertinent part:
{¶11} This testimonial privilege "prevents an attorney from testifying concerning communications made to the attorney by a client or the attorney's advice to a client." "[It] applies not only to prohibit testimony at trial, but also to protect the sought-after communications during the discovery process." Jackson v. Greger , 110 Ohio St.3d 488, 854 N.E.2d 487, ¶ 7 fn. 1 (2006) (emphasis added). The statutory version does not apply here because, by its very terms, it applies only to competency of the attorney to testify:
A plain reading of the statute clearly limits the statute's application to cases in which a party is seeking to compel testimony of an attorney for trial or at a deposition—as opposed to cases where a party is seeking to compel production of nontestimonial documents. As the express language of the statute indicates, the privilege is testimonial: "The testimonial privilege established under this division * * *." In cases that are not covered under R.C. 2317.02, the common-law attorney-client privilege applies.
Grace v. Mastruserio , 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 17 (1st Dist.) (emphasis sic) (citations omitted).
{¶12} The common law attorney-client privilege applies " ‘(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.’ " State ex rel. Leslie v. Ohio Hous. Fin. Agency , 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 21, quoting Reed v. Baxter , 134 F.3d 351, 355-356 (6th Cir.1998). "[O]nly the client can waive the privilege." Id. , citing Allen Cty. Bar Assn. v. Williams , 95 Ohio St.3d 160, 2002-Ohio-2006, 766 N.E.2d 973, ¶ 9-14.
{¶13} Appellants first argue Walter Sr.'s will, trust, and estate planning documents are protected by the attorney-client privilege. We agree that they...
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...by an attorney and client in confidence whereby the client discloses significant details regarding financial holdings and arrangements." Edwards v. Edwards, 2019-Ohio-5413, ¶ 14, 151 N.E.3d 6, 10. See also Krischbaum v. Dillon, 58 Ohio St. 3d 58, 62-63, 567 N.E.2d 1291, 1296 (1991) ("Seldom......