Grace v. Mastruserio
| Decision Date | 03 August 2007 |
| Docket Number | No. C-060732.,C-060732. |
| Citation | 912 N.E.2d 608,2007 Ohio 3942,182 Ohio App.3d 243 |
| Parties | GRACE, Appellant, v. MASTRUSERIO et al., Appellees. |
| Court | Ohio Court of Appeals |
John J. Mueller, L.L.C., and John J. Mueller, Cincinnati, for appellant.
Reminger & Reminger Co., L.P.A., Brian D. Goldwasser, and Joseph W. Borchelt, Cincinnati, for appellees.
{¶ 1} The trial court ordered discovery of an attorney's entire case file, without reviewing the file in camera or holding an evidentiary hearing. We reverse.
{¶ 2} Plaintiff-appellant, Stephen A. Grace, sued defendants-appellees, Dominic J. Mastruserio and Dominic J. Mastruserio Co., L.P.A., for legal malpractice and breach of fiduciary duty arising from Mastruserio's previous representation of Stephen in a divorce proceeding against his former wife, Mary Grace.
{¶ 3} The following facts are not supported by the record but have been gleaned from the parties' briefs—which exemplifies the need to have an evidentiary hearing at which the facts can be developed. Stephen fired Mastruserio and replaced him with Edward H. Collins, who was to complete the remainder of the divorce. Stephen later hired John J. Mueller to sue Mastruserio for malpractice and breach of fiduciary duty. The parties' briefs allege that Mastruserio had wrongfully stipulated that the equity in the marital residence constituted marital property, and that the stipulation was negligent because Stephen had made the down payment on the property before the marriage with his own money.
{¶ 4} Mastruserio propounded to Stephen interrogatories and a request for production of documents, and Stephen's basic response was that the answers and documents requested were privileged materials and attorney work product.
{¶ 5} Mastruserio moved to compel discovery of the entire divorce case file, including successor-attorney Collins's case file. Without reviewing the materials or conducting an evidentiary hearing, the trial court issued a blanket order compelling discovery of the file in its entirety, and it is from that order that Stephen appeals. We reverse and remand with instructions that the trial court conduct an evidentiary hearing and review the case file in camera to decide what materials are, or are not, privileged.
{¶ 6} In 2001, Stephen hired Mastruserio to represent him in his divorce from his previous wife, Mary. After property hearings, Stephen, through Mastruserio, stipulated certain facts. Specifically, it was stipulated that he and his wife had purchased the marital residence during the marriage, and that the equity in the marital residence constituted marital property for the purposes of asset division. Based on those stipulations, Stephen also agreed to share the net equity equally with Mary. The court divorced Stephen from Mary, awarded child support, and divided the property (including the residence) essentially in accord with the division in the magistrate's report. Neither Mary nor Stephen appealed that judgment.
{¶ 7} In 2004, Stephen, through Mastruserio, moved for relief from judgment under Civ.R. 60(B). The relief motion requested the court to modify the division of property to account for the $75,000 down payment on the marital residence that Stephen had made with individual, premarital assets, and to modify the decree as it related to certain personal property that Stephen claimed was inherited property. The motion also alleged that after the entry of the divorce decree, Mary had failed to transfer the inherited property to Stephen, as she had apparently agreed to do.
{¶ 8} The cursory overview of the foregoing facts is all that can be gathered from the record, given the generic nature of the pleadings, motions, and responses. We are unable to deduce from the record what specific facts were alleged to have amounted to malpractice and a breach of fiduciary duty. The record needs further development.
{¶ 9} After Mastruserio filed the Civ.R. 60(B) motion, Stephen terminated the attorney-client relationship and hired Edward Collins to represent him in further pursuing the motion. The court later denied Stephen's motion. The malpractice and breach-of-fiduciary-duty claims arose from Mastruserio's representation of Stephen in the divorce proceedings.
{¶ 10} After the suit was filed, Mastruserio served Stephen with interrogatories and requests for production. Stephen objected, arguing that the information requested was protected under either the attorney-client privilege or the work-product doctrine for attorneys.
{¶ 11} One of Mastruserio's interrogatories stated, "Please state the name, address, telephone number and social security number of the persons answering these interrogatories." Stephen provided his name and address. Stephen objected to disclosure of his social security number, answering that the number was confidential but that it would be disclosed with a court order limiting its use and protecting the confidentiality of the material. Stephen omitted his telephone number because "Mastruserio has records reflecting [Stephen]'s telephone number and if Mastruserio's counsel wanted to contact [Stephen], the law requires Mastruserio to do so through [Stephen]'s counsel."
{¶ 12} The parties made extrajudicial attempts to resolve the discovery dispute, but were unable to compromise. Mastruserio then moved to compel discovery of the requested materials, including the case file of his successor, Collins. The trial court without conducting a hearing or undertaking an in camera review of the materials, granted Mastruserio's motion to compel discovery.
{¶ 13} We review the trial court's disposition of discovery issues under an abuse-of-discretion standard.1
{¶ 14} Stephen asserts that attorney-client privilege may be waived only by the statutory means provided in R.C. 2317.02(A): waiver by the client's express consent or by his voluntary testimony on the same subject. Not so.
{¶ 15} We first distinguish between the testimonial attorney-client privilege embodied in R.C. 2317.02(A) and the common-law attorney-client privilege.
{¶ 16} R.C. 2317.02(A) expressly relates to testimonial privilege, precluding an attorney from testifying on issues covered by the attorney-client privilege: 2
{¶ 17} 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 * * *."3 In cases that are not covered under R.C. 2317.02, the common-law attorney-client privilege applies.4
{¶ 18} The common-law attorney-client privilege is not a new concept; in fact, the privilege existed during the reign of Queen Elizabeth I.5 The privilege operates 6
{¶ 19} 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."7 The burden to show that testimony or documents are confidential or privileged is on the party seeking to exclude the material.8
{¶ 20} The concurring opinion in Jackson v. Greger9 correctly noted that the common-law attorney-client privilege affords a greater scope of privilege than does R.C. 2317.02: The common-law attorney-client privilege "` '"10 The common-law attorney-client privilege protects against the disclosure of oral, written, and recorded information, unless the privilege is waived. At common law, a client may waive the attorney-client privilege either expressly or by conduct implying a waiver.11
{¶ 21} A client may impliedly waive the attorney-client privilege through affirmative acts. Ohio appellate courts have discussed and applied the tripartite test set forth in Hearn v. Rhay12 in determining whether the attorney-client privilege has been impliedly waived.13 Under Hearn, a party impliedly waives the attorney-client privilege if (1) the assertion of the privilege is the result of some affirmative act, such as filing suit, by the asserting party; (2) through the affirmative act, the asserting party has placed the protected information at issue by making it relevant to the case; and (3) application of the privilege would deny the opposing party access to information vital to its defense.14 Where these three factors coexist, the party asserting the privilege has...
To continue reading
Request your trial
-
Fries v. Greg G. Wright & Sons, LLC
...But we lack jurisdiction to consider that issue. {¶ 72} Generally, discovery orders are neither final nor appealable. Grace v. Mastruserio , 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 33 (1st Dist.). An exception exists for some cases in which the discovery sought involves the d......
-
State v. Glenn
...of need’ " before it can be disclosed, while the latter has been said to require only a showing of " ‘good cause.’ " Grace v. Mastruserio , 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 31-32 (1st Dist.), quoting Jerome v. A-Best Prods. Co. , 8th Dist. Cuyahoga Nos. 79139, 79140, 7......
-
Cousino v. Mercy St. Vincent Med. Ctr.
... ... its discretion by denying appellant the opportunity to amend its privilege log and declining to conduct an in-camera review of the documents); Grace v. Mastruserio , 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, 3440 (finding trial court abused its discretion in ordering production ... ...
-
Weckel v. Architects
...is not boundless. See State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 11;see also Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 13 (1st Dist.) (an appellate court reviews the trial court's ruling on discovery matters under ......