Miles-McClellan Construction Company v. Board of Education Westerville, No. 05AP-1112 (Ohio App. 6/30/2006)
| Decision Date | 30 June 2006 |
| Docket Number | No. 05AP-1112.,No. 05AP-1114.,No. 05AP-1115.,No. 05AP-1113.,05AP-1112.,05AP-1113.,05AP-1114.,05AP-1115. |
| Parties | Miles-McClellan Construction Company, Inc. et al., Plaintiffs-Appellees, v. The Board of Education Westerville City School Board et al., Defendants-Appellants. The Kirk Williams Company, Plaintiff-Appellee, v. Westerville City Schools, Defendant-Appellant. Miles-McClellan Construction Company, Inc. et al., Plaintiffs-Appellees, v. The Board of Education Westerville City School Board et al., Defendants-Appellants, (Bricker & Eckler, L.L.P., Defendant-Appellant). The Kirk Williams Company, Inc., Plaintiff-Appellee, v. Westerville City Schools, Defendant-Appellant, (Bricker & Eckler, L.L.P., Defendant-Appellant). |
| Court | Ohio Court of Appeals |
APPEALS from the Franklin County Court of Common Pleas, C.P.C. Nos. 04CVH06-5855, 04CVH05-5510, 04CVH06-5855, 04CVH05-5510.
Buckingham, Doolittle & Burroughs, LLP, Donald B. Leach, Jr., and Michael F. Copley, for Miles-McClellan Construction Company, Inc.
Bricker & Eckler, Michael S. Holman, Samuel Wampler and E. Rod Davisson, for Westerville City Schools.
Zeiger, Tigges & Little LLP, and John W. Zeiger, for Bricker & Eckler, LLP.
Havens Willis Law Firm LLC, William L. Willis, Dimitrios G. Hatzifotinos, and Michael J. Cassone, for Kirk Williams Company, Inc.
Brenner, Brown, Golian & McCaffrey Co., L.P.A., Joseph J. Golian, for Romanoff Electric of Columbus and Apex M&P Construction Co.
{¶1} Defendant-appellant, Westerville City Schools ("Westerville Schools"), has brought these interlocutory appeals from a discovery order entered by the Franklin County Court of Common Pleas in favor of plaintiff-appellee, The Kirk Williams Company, Inc. ("Kirk Williams"), plaintiff-appellee The Miles-McClellan Construction Company, Inc. ("Miles-McClellan"), third-party defendant-appellee Romanoff Electric ("Romanoff"), and third-party defendant-appellee Apex M&P Construction, Inc. ("Apex"). Westerville Schools' counsel in the trial court, the Columbus law firm of Bricker & Eckler, LLP ("Bricker"), which became a party to the action in the trial court pursuant to an amended complaint filed (under seal) by Miles-McClellan asserting causes of action directly against Bricker, has also filed a notice of appeal and brief as an appellant in this matter. The underlying merits of this matter concern disputes arising out of a construction project undertaken by Westerville Schools, but the immediate issues raised in this interlocutory appeal concern application of attorney-client privilege to various documents produced in discovery.
{¶2} Contractors Miles-McClellan and Kirk Williams filed separate actions against Westerville Schools seeking additional compensation for their performance under their construction contracts. Westerville Schools counterclaimed against Miles-McClellan and Kirk Williams and filed a third-party complaint against Romanoff, Apex, The Quandel Group, Inc. ("Quandel"), which was the project manager for the job, and Firestone, Jaros, Mullin, Inc. ("FJM"), the project architect, seeking contribution from these third-party defendants.
{¶3} During the course of normal discovery in the case, Bricker produced for inspection and copying by counsel for Miles-McClellan a number of documents and records belonging to Westerville Schools. During the course of this discovery, Miles-McClellan without objection from Westerville Schools or Bricker copied or otherwise came into possession of several documents now claimed by Bricker and Westerville Schools to be covered by the attorney-client privilege. Kirk Williams likewise obtained, pursuant to subpoenas, some privileged Westerville Schools documents from Quandel.1
{¶4} Upon learning that Miles-McClellan and Kirk Williams had come into possession of these privileged documents, Westerville Schools filed a motion to compel return of the documents. Bricker and Westerville Schools also filed motions for a protective order regarding the documents. Apex and Romanoff, having learned of the existence of the documents, subpoenaed Miles-McClellan for copies. Miles-McClellan and Kirk Williams then filed the documents under seal with the trial court, with a corresponding motion to declare the attorney-client privilege waived as to both the documents themselves and all related materials.
{¶5} The trial court denied Bricker and Westerville Schools' motions for protective orders and granted appellees' motions to declare the attorney-client privilege waived in relation to the produced documents and all related materials. The trial court found that the privileged documents had been voluntarily, if inadvertently, produced, and that the law in Ohio establishes that any voluntary disclosure of privileged documents constitutes a waiver of privilege as to the documents themselves, and also as to other communications between attorney and client on the same or related subjects. The trial court then stayed enforcement of its order pending the outcome of the present appeal.
{¶6} Bricker has timely appealed bringing the following assignments of error:
[1.] The Common Pleas Court erred in granting Plaintiffs' motions to declare Defendant's attorney-client privilege waived, and in denying Defendants' motions for protective order to compel return of inadvertently produced privileged documents.
[2.] The Common Pleas Court erred by refusing to hold a hearing to determine whether Defendant had knowingly and voluntarily waived its attorney-client privilege, or whether its privileged documents were disclosed solely as the result of inadvertence and mistake during a large document production in complex litigation.
{¶7} Westerville Schools have timely appealed bringing the following assignments of error:
1. The trial court erred in granting Plaintiffs' motions to declare the attorney-client privilege waived and to compel the production of documents because those documents were protected by the privilege.
2. The trial court erred in denying Westerville City School District's and Bricker & Eckler's motions for a protective order, concluding that the School District's attorney-client privilege had been waived, because for Westerville to waive its attorney-client privilege requires more than a showing of inadvertent, unintended, unknowing, and unauthorized disclosure of documents by its agents.
{¶8} We will begin our discussion with certain general observations necessary in this case. Generally, discovery orders by a trial court have traditionally not constituted final, appealable orders in Ohio. In the case of an order compelling the production or disclosure of material allegedly protected by attorney-client privilege, however, an interlocutory appeal will lie. Shaffer v. OhioHealth Corp., Franklin App. No. 03AP-102, 2004-Ohio-63, at ¶6. Most aspects of trial court rulings in the discovery process will be reviewed under an abuse-of-discretion standard. State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55. However, where the trial court has either misstated the law or applied an incorrect legal standard, giving rise to a purely legal issue on appeal, our appellate review is de novo. Shaffer, at ¶6; Ohio State Bd. of Pharmacy v. Dick's Pharmacy, 150 Ohio App.3d 343, 2002-Ohio-6500. Moreover, because we strongly wish to maintain the traditional deference of appellate courts toward the trial court with respect to discovery determinations, we adopt the following preliminary propositions set forth by this court in Shaffer, at ¶6:
* * * We will apply these differing standards [of review] to various aspects of the present matter as appropriate. We will also approach the matter with full awareness that, while certain discovery rulings such as the one before us have been held to constitute final appealable orders and give rise to an interlocutory appeal under R.C. 2505.02(B), there is cause for caution and restraint when addressing such matters in the appellate context. We are hesitant, to say the least, to put this court in the position of managing discovery in the place of the trial court. This is a domain where the trial court traditionally and justifiably exercises a wide degree of discretion based on its superior familiarity with all aspects of the case and inherent need to manage the proceedings before it, and we accordingly will limit our determinations to questions that can be adequately circumscribed for appellate review, without unduly fettering the trial court's ability to deal with the future evolution of the case.
{¶9} The attorney-client privilege, which lies at the heart of the present matter, "bestows upon a client a privilege to refuse to disclose and prevent others from disclosing confidential communications made between the attorney and client in the course of seeking or rendering legal advice." Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc. (1992), 82 Ohio App.3d 322, 329. The privilege will be deemed invoked and effective unless clearly waived. H & D Steel Service, Inc. v. Westin, Hurd, Fallon, Paisley & Howley (July 23, 1998), Cuyahoga App. No. 72758. Waiver of the attorney-client privilege may be either express or implied. Ward v. Graydon, Head & Ritchey (2001), 147 Ohio App.3d 325, 330.
{¶10} Together, the various assignments of error of the appellants present, in essence, two issues we will address: first, whether an inadvertent disclosure of privileged documents to opposing counsel during the discovery process waives, in whole or in part, attorney-client privilege with respect to those documents and related materials and, second, whether a school board in Ohio can effectuate any waiver of any kind through actions of its attorney-agent, without meeting and formally passing a resolution with all due procedural requirements to authorize the waiver.
{¶11} We begin by briefly addressing Westerville Schools' second assignment of error, which asserts that attorney-client privilege could...
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