Squire, Sanders & Dempsey L.L.P. v. Givaudan Flavors Corp., 2009 Ohio 2490 (Ohio App. 5/28/2009), No. 92366.
| Decision Date | 28 May 2009 |
| Docket Number | No. 92366. |
| Citation | 2009 Ohio 2490 |
| Parties | Squire, Sanders & Dempsey L.L.P., Plaintiff-Appellee, v. Givaudan Flavors Corporation, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Jay H. Salamon, Esq., Hugh D. Berkson, Esq., Anthony J. Hartman, Esq., Hermann, Cahn & Schneider L.L.P., 1301 East 9th Street, Suite 500, Cleveland, Ohio 44114, Jeffrey L. Richardson, Esq., Mitchell, Silberberg & Knupp L.L.P., 11377 West Olympic Blvd., Los Angeles, California 90064, Attorneys for Appellant.
John M. Newman, Jr., Esq., Pearson N. Bownas, Esq., Louis A. Chaiten, Esq., Matthew P. Silversten, Esq., Jones Day, North Point, 901 Lakeside Avenue, Cleveland, Ohio 44114-1190, Attorneys for Appellee.
Before: Dyke, J., Rocco, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant Givaudan Flavors Corp. ("Givaudan") appeals the trial court's order that it produce various documents in litigation filed by plaintiff Squire, Sanders and Dempsey L.L.P. ("SS&D"). For the reasons set forth below, we conclude that the trial court erred in summarily granting the motion to compel testimony and production. We reverse and remand to the trial court for it to hold an in camera hearing to evaluate all of the discovery at issue in accordance with the rules pertaining to testimonial (statutory) privilege and any waiver thereof, common law privilege and any waiver thereof, and work product privilege and exceptions thereto.
{¶ 2} On November 7, 2007, SS&D filed suit against Givaudan for breach of contract and money due on an account. SS&D alleged that it represented Givaudan, a manufacturer of butter flavorings, in personal injury litigation filed by workers alleging that they contracted lung ailments from Givaudan's products. SS&D asserted that it was retained by Givaudan in 2003, and that pursuant to the parties' various Engagement Agreements, Givaudan agreed to compensate SS&D "for time spent in representing Givaudan's interests plus certain itemized costs." By early 2007, Givaudan stopped paying SS&D's invoices. SS&D ceased its representation of Givaudan in May 2007, and at that time, according to SS&D, Givaudan owed the firm $1,801,204.37.
{¶ 3} Givaudan denied that it was liable for the alleged fees and costs, and denied SS&D's allegations that its services were "all at the request and with the approval of Givaudan." In addition, Givaudan set forth counterclaims for breach of contract, legal malpractice, breach of fiduciary duty, fraud, unjust enrichment, and
constructive fraud, asserting, essentially, that the firm did not competently handle the matter and marked up the actual hours billed to inflate its fees.1
{¶ 4} SS&D propounded to Givaudan interrogatories and 64 requests for production of documents. The firm also moved for commissions for subpoenas outside the State of Ohio to Zurich North America ("Zurich"), the liability carrier for Givaudan and document subpoenas for depositions to Elizabeth Titus and Jeffrey Mitchell, Zurich employees who "examined and/or audited SS&D's invoices * * * and participated in and/or monitored the planning and preparation of Givaudan's defense * * * [and] activities regarding settlement of certain lawsuits."
{¶ 5} SS&D requested the following items in connection with the subpoenas:
{¶ 6} "1. All communications between Givaudan and Zurich related to the [lawsuits against Givaudan] including but not limited to, communications related to SS&D's handling of the [lawsuits against Givaudan] and SS&D's invoices * * *
{¶ 7} "2. All communications between Zurich and SS&D related to the [lawsuits against Givaudan] * * *
{¶ 8} "3. All communications between Zurich and Wilson Young [P.L.C.] related to the [lawsuits against Givaudan] * * *
{¶ 9} "4. All internal Zurich communications * * *
{¶ 10} "5. All documents or notes created by Zurich * * *
{¶ 11} "6. All documents or notes created by Givaudan and provided to Zurich * * *
{¶ 12} "7. All invoices for legal services, from any legal service provider, received by Zurich related to the Litigation.
{¶ 13} "8. All documents discussing or referring to SS&D's qualifications, capabilities or performance * * *
{¶ 14} "9. All documents discussing or reflecting the involvement or participation, or anticipated involvement or participation, of [the law firm of] Morgan Lewis [L.L.P.] in the Litigation on behalf of Givaudan.
{¶ 15} "10. All documents related to any examination or audit of SS&D's invoices for legal services related to the Litigation.
{¶ 16} "11. All documents related to any examination or audit of Morgan Lewis's invoices for legal services related to the Litigation.
{¶ 17}
{¶ 18} On February 14, 2008, the trial court granted the motion for issuance of subpoenas requiring Zurich to permit inspection and copying of the documents at issue and to produce the record custodians, and Titus and Mitchell for deposition.
{¶ 19} SS&D next obtained commissions for subpoenas to Federal Insurance Company ("Federal"), and Chubb Insurance Company ("Chubb"), Givaudan's excess
insurance carriers, and propounded a notice of deposition to their records custodians.
{¶ 20} Givaudan notified the trial court and SS&D that it intended to assert various objections to the subpoenas substantive objections to discovery upon issuance of any subpoenas, and also objected to SS&D's discovery requests, citing, inter alia, confidentiality, attorney-client privilege, and work product. It also moved for a protective order, arguing that the interrogatories and requests for production sought information that is privileged and confidential.
{¶ 21} In July 2008, SS&D deposed Givaudan's current general counsel, Jane Garfinkel, and Givaudan's former Vice President of Legal Affairs, Frederick King. During both depositions, Givaudan repeatedly invoked the attorney client and work product privileges.
{¶ 22} The trial court denied Givaudan's motion for a protective order and SS&D filed a motion to compel testimony and production. The trial court granted SS&D's motion to compel. In a written opinion, the court distinguished the instant matter from Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, concluding that the "Jackson case did not abrogate, alter or even address the traditional self-protection exception to privilege for communications between lawyers and former clients who are parties to a professional liability suit. * * * In addition, * * * Ohio Rule of Professional Conduct 1.6(b)(5) states that a lawyer may reveal protected information if he or she reasonably believes that the revelation is necessary `to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and client to establish a defense to a * * * civil claim against the lawyer based upon conduct in which the client was involved.'" Finally, the court held that "`SS&D's use of documents already in its possession, and otherwise protected, that relate to the billing dispute between SS&D and Givaudan are permitted to be used by Squire Sanders & Dempsey in order to mount a defense in this case in accordance with Rule[s] of Professional Conduct 1.6(b)(5) and [R.C.]2317.02(A)."
{¶ 23} Givaudan now appeals and assigns six errors for our review. For the sake of convenience, we shall address the assignments of error out of their predesignated order.
{¶ 24} In the sixth assignment of error, Givaudan asserts that the trial court erred in refusing to stay the matter pending completion of the underlying litigation claiming personal injuries in connection to butter flavoring.
{¶ 25} As an initial matter, we note that in State v. Weist, Champaign App. No. 2007-CA-16, 2008-Ohio-4006 an order denying a stay of proceedings is not a final appealable order under R.C. 2505.02(B)(4). Accord Holivay v. Holivay, Cuyahoga App. No. 89439, 2007-Ohio-6492.
{¶ 26} In any event, this ruling would be evaluated for an abuse of discretion. Dzina v. Dzina, Cuyahoga App. Nos. 90936, 90937, 90938, 90939 and 90940, 2009-Ohio-136, citing Nationwide Mut. Fire Ins. Co. v. Modroo, Geauga App. No. 2004-G-2557, 2004-Ohio-4697. In this matter, we find no abuse of discretion. The record clearly indicates that the underlying personal injury litigation against Givaudan involves numerous plaintiffs in multiple jurisdictions and it is conceivable that this
litigation will not terminate for several years. Moreover, Givaudan's interests in the underlying litigation can be secured through proper application of the rules regarding attorney-client privilege, the work product doctrine, and the exceptions to these provisions.
{¶ 27} The sixth assignment of error is without merit.
{¶ 28} In its fifth assignment of error, Givaudan asserts that the trial court erred by ruling that "documents already in its possession, and otherwise protected, that relate to the billing dispute between SS&D and Givaudan are permitted to be used by Squire Sanders & Dempsey in order to mount a defense in this case in accordance with the Rule[s] of Professional Conduct 1.6(b)(5) and [R.C.]2317.02(A)."
{¶ 29} It is axiomatic that the attorney-client privilege belongs not to the attorney but to the client. Allen County Bar Ass'n. v. Williams, 95 Ohio St.3d 160, 2002-Ohio-2006, 766 N.E.2d 973, citing Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc. (1992), 82 Ohio App.3d 322, 329, 612 N.E.2d 442. Subject to certain exceptions and waivers, to those communications intended to be confidential. Smith v. Smith, Hamilton App. No. C-050787, 2006-Ohio-6975.
{¶ 30} Accordingly, the trial court erred insofar as it summarily concluded, without...
To continue reading
Request your trial