Nelson v. Toledo Oxygen & Equip. Co.

• Decision Date: 15 April 1992
• Docket Number: 90-2184,Nos. 90-2182,s. 90-2182
• Court: Ohio Supreme Court
• Parties: NELSON, Appellant, v. TOLEDO OXYGEN & EQUIPMENT COMPANY, INC., Appellee, et al. HUDDY et al., Appellants, v. TOLEDO OXYGEN & EQUIPMENT COMPANY, INC., Appellee, et al.

Page 385

63 Ohio St.3d 385

588 N.E.2d 789

NELSON, Appellant, v. TOLEDO OXYGEN & EQUIPMENT COMPANY, INC., Appellee, et al.

HUDDY et al., Appellants, v. TOLEDO OXYGEN & EQUIPMENT COMPANY, INC., Appellee, et al.

Nos. 90-2182, 90-2184.

Supreme Court of Ohio.

Submitted Oct. 23, 1991.

Decided April 15, 1992.

SYLLABUS BY THE COURT

A discovery order compelling the production of documents or tangible things and overruling a claim that the materials discovered are exempt as work product under Civ.R. 26(B)(3) is not a final appealable order pursuant to R.C. 2505.02.

On May 2, 1989, plaintiffs John D. and Terri A. Huddy filed a complaint against defendant-appellee, Toledo Oxygen & Equipment Company, Inc. On July 11, 1989, plaintiff-appellant, Richard O. Nelson, filed a similar complaint against defendant Toledo Oxygen. Pursuant to plaintiff Nelson's motion, the trial court ordered the consolidation of the Nelson and Huddy cases.

The second amended complaint alleged that John Huddy and Richard Nelson were injured while engaged in the cleaning of diesel tanks on a ship. In this process, they were using breathing air tanks supplied to their employer by defendant Toledo Oxygen. Plaintiffs alleged that Huddy and Nelson were injured because defendant Toledo Oxygen and others had improperly filled the breathing air tanks.

During discovery, Toledo Oxygen asked Nelson to produce copies of any and all medical reports regarding his treatment and condition arising out of the incident in question. Toledo Oxygen later repeated its request for such documents in a "Notice of Deposition Duces Tecum" directed to Nelson. However, at the deposition, Nelson's attorney alleged that certain reports written by Nelson's treating physicians were "work product," and he refused to produce them.

Toledo Oxygen filed a motion to compel the discovery of the treating physicians' reports. Plaintiff Nelson filed a brief in opposition to the motion to compel. Nelson admitted that his counsel possessed five medical reports that had not been provided to Toledo Oxygen. Nelson contended, however, that nonproduction was justified because the reports were attorney work product. According to Nelson's brief, "[e]ach of these medical reports was prepared by the physicians at the specific request of Nelson's counsel for his use in preparing for the prosecution of the instant action. The reports were prepared in direct response to various medical questions posed by Nelson's counsel in preparation for and anticipation of the instant action." Nelson's attorney submitted an affidavit in support of this work-product claim.

The trial court on August 1, 1990 granted the motion to compel the production of the physicians' reports. When plaintiff Nelson filed a "Motion for 60(B) Relief," seeking to clarify and reverse the August 1 entry, the trial court refused to reverse its previous entry, but it did clarify the previous entry on August 22, 1990 by specifically ordering the production of the five reports possessed by Nelson's counsel.

Nelson appealed from the trial court orders in his own case and, inexplicably, in the case filed by the Huddys. The court of appeals dismissed the appeals, finding that the order compelling discovery was not a final appealable order.

These cases are before us for review pursuant to orders of the court of appeals certifying that its judgments are in conflict with the judgment of the Eighth District Court of Appeals in Aetna Casualty & Surety Co. v. Desprez (Feb. 5, 1987), Cuyahoga App. No. 52634, unreported, 1987 WL 6120.

We dismiss the appeal in No. 90-2184. The Huddys have no standing to challenge the disclosure of the reports of Nelson's treating physicians. Nelson's appeal in No. 90-2182, however, requires our review.

Fuller & Henry, Martin J. Witherell and Daniel T. Ellis, Toledo, for appellants.

Manahan, Pietrykowski, Bamman & Delaney and Stephen F. Ahern, Toledo, for appellee Toledo Oxygen & Equipment Co. MOYER, Chief Justice.

Upon review, we conclude that an order compelling the discovery of alleged work-product materials is not a final appealable order under R.C. 2505.02.

Appellant Nelson contends that such an order is appealable under R.C. 2505.02 because it "affects a substantial right made in a special proceeding." We agree that the qualified work-product exemption set forth in Civ.R. 26(B)(3) constitutes a "substantial right." Civ.R. 26(B)(3) generally provides that trial-preparation materials are exempt from discovery unless "good cause" is shown for their production. The justification for this exemption was set forth in Hickman v. Taylor (1947), 329 U.S. 495, 511, 67 S.Ct. 385, 393-394, 91 L.Ed. 451, 462:

"Proper preparation of a client's case demands that [an attorney] * * * assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. * * * This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways--aptly though roughly termed by the Circuit Court of Appeals in this case as the 'Work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."

Clearly, substantial interests underlie the qualified exemption from discovery that is given to work-product materials in Civ.R. 26(B)(3).

We must next determine whether an order compelling the discovery of alleged work-product materials is "made in a special proceeding." In Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253, 258, 21 O.O.3d 158, 161, 423 N.E.2d 452, 456, this court ruled that the determination of "whether an order is made in a special proceeding is resolved through a balancing test. This test weighs the harm to the 'prompt and orderly disposition of litigation,' and the consequent waste of judicial resources, resulting from the allowance of an appeal, with the need for immediate review because appeal after final judgment is not practicable." We find that the balance in this case weighs in favor of review after final judgment and thus that the order in question was not made in a special proceeding.

As this court stated in Klein v. Bendix-Westinghouse Co. (1968), 13 Ohio St.2d 85, 87, 42 O.O.2d 283, 284, 234 N.E.2d 587, 589, "[d]iscovery orders have long been recognized as interlocutory" and thus not subject to immediate appeal. The reasons for this rule are evident. They include:

"[A]n appellant's ultimate right of review upon an appeal from a final judgment in the action; the elimination of unnecessary appeals, since the complaining party may win the case or settle it; the absence of irreparable harm from the vast majority of orders requiring production of documents; the potential for harassment of litigants by nuisance appeals, and the fact that any appeal tends to delay or deter trial or settlement of a lawsuit; the burden on the reviewing court's docket from appeals of housekeeping matters in the [trial] * * * courts; and the slim chance for reversal of all but the most unusual discovery orders." American Express Warehousing, Ltd. v. Transamerica Ins. Co. (C.A.2, 1967), 380 F.2d 277, 280 (order compelling alleged work-product disclosure not immediately appealable). See, also, In re Coastal States Petroleum (1972), 32 Ohio St.2d 81, 84-85, 61 O.O.2d 333, 335, 290 N.E.2d 844, 847, quoting Cobbledick v. United States (1940), 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783, 785.

Since interlocutory appeals of discovery orders interfere with the prompt and orderly disposition of litigation, they are allowed only with much reluctance. See Amato, supra, 67 Ohio St.2d at 257-258, 21 O.O.3d at 161, 423 N.E.2d at 455. "[T]he need for prompt and orderly disposal of litigation * * * [is] paramount within the context of most civil action proceedings." State, ex rel. Celebrezze, v. K & S Circuits, Inc. (1983), 6 Ohio St.3d 354, 356, 6 OBR 408, 410, 453 N.E.2d 653, 654.

Against this presumption of nonappealability, Nelson contends that only an immediate appeal would preserve the work-product exemption. He first contends that an appeal after final judgment is not practicable because "[t]here is no way to place Nelson in his former position if an appellate court later determines [after disclosure] that Toledo Oxygen is not entitled to the letters."

In this argument, appellant is questioning the ability of an appellate court after final...