State ex rel. ABM Janitorial Midwest, Inc. v. Franklin Cty. Court of Common Pleas, 2010 Ohio 623 (Ohio App. 2/23/2010)
| Decision Date | 23 February 2010 |
| Docket Number | No. 09AP-27.,09AP-27. |
| Citation | 2010 Ohio 623 |
| Parties | State of Ohio ex rel. ABM Janitorial Midwest, Inc., Relator, v. Franklin County Court of Common Pleas, Calvin H. Meyer, Karen Rogers Boring and Quality Building Services, LLC, Respondents. |
| Court | Ohio Court of Appeals |
Lane Alton Horst, LLC, Maryellen Corna Reash and Joseph A. Gerling, for relator.
Ron O'Brien, Prosecuting Attorney, and Mary Jane Martin, for respondent Franklin County Court of Common Pleas.
Newhouse, Prophater, Letcher & Moots, LLC, and Barbara K. Letcher, for respondents Calvin H. Meyer, Karen Rogers Boring, and Quality Building Services, LLC.
DECISION
{¶1} ABM Janitorial Midwest, Inc. ("ABM"), filed this action in mandamus, seeking a writ to compel the Franklin County Court of Common Pleas to enter a protective order to preserve the secrecy of information which ABM views as being trade secrets. The information is part of the information revealed or to be revealed in discovery in a case in common pleas court.
{¶2} In accord with Loc.R. 12(M), the case was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision containing detailed findings of fact and conclusions of law, which is appended to this decision. The magistrate's decision includes a recommendation that we deny the request for a writ.
{¶3} Counsel for ABM has filed objections to the magistrate's decision. Counsel for the Franklin County Court of Common Pleas has filed a memorandum in response. Counsel for the opposing parties in the common pleas court case has also filed a memorandum in opposition to the objections. ABM filed a reply memorandum. The mandamus case is now before this court for a full, independent review.
{¶4} The central issue in this mandamus action is whether a trial court has discretion under R.C. 1333.65 to refuse to issue a protective order for something which is alleged to be a trade secret, whether or not the information has been demonstrated to be a trade secret.
{¶5} R.C. 1333.65 states, in pertinent part:
In an action under [The Ohio Trade Secrets Act], a court shall preserve the secrecy of an alleged trade secret by reasonable means that may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.
{¶6} If a trial court has discretion to issue or not issue such a protective order, then no clear legal right to the issuing of such a protective order exits and no writ of mandamus shall be issued. See State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, and State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176.
{¶7} We are not prepared to find that trial court judges have no discretion to issue or not issue a protective order in any given case. The mere allegation that something is a trade secret does not force a trial court to close a public courtroom or seal a public record. The countervailing concerns in a democratic society that courtrooms and those who conduct business in courtrooms are open to public scrutiny must be honored. To honor that overriding societal concern, trial court judges must have the flexibility to craft protective orders which protect the parties while respecting the public's right to know what is occurring in its courtrooms; or even to refuse to issue any protective order at all.
{¶8} As an appellate court, we should not issue a writ to force a trial judge to exercise his or her discretion. In light of the Supreme Court of Ohio precedent, we cannot issue such a writ.
{¶9} The objections to the magistrate's decision are overruled. We adopt the findings of fact and conclusions of law contained in the magistrate's decision. As a result, we deny the request for a writ of mandamus.
Objections overruled; writ denied.
MAGISTRATE`S DECISION
Lane Alton Horst, LLC, Maryellen Corna Reash and Joseph A. Gerling, for relator.
Ron O'Brien, Prosecuting Attorney, and Mary Jane Martin, for respondent Franklin County Court of Common Pleas.
Newhouse, Prophater, Letcher & Moots, LLC, and Barbara K. Letcher, for respondents Calvin H. Meyer, Karen Rogers Boring, and Quality Building Services, LLC.
{¶10} In this original action, relator, ABM Janitorial Midwest, Inc. ("ABM" or "relator"), requests a writ of mandamus ordering respondent Franklin County Court of Common Pleas ("common pleas court") to enter a protective order pursuant to R.C. 1333.65 that, by reasonable means, preserves the secrecy of trade secrets alleged by relator in an action filed by relator in the common pleas court.
Findings of Fact:
{¶11} 1. On March 6, 2008, relator filed an action in the common pleas court against respondents Calvin H. Meyer ("Meyer"), Karen Rogers Boring ("Rogers"), and Quality Building Services, LLC ("QBS") who are the named defendants in that action.
{¶12} 2. According to the complaint filed by relator in the common pleas court ("common pleas complaint"), ABM is a nationwide organization that offers a full range of commercial cleaning and building services.
{¶13} 3. According to the common pleas complaint, Meyer was formerly employed by ABM as "VP-Ohio" until February 5, 2007. Thereafter, Meyer was assigned "direct Branch Management responsibilities for Columbus [Ohio]."
{¶14} 4. According to the common pleas complaint, Rogers was formerly employed by ABM as "Operations Manager," and she reported directly to Meyer prior to her resignation. Rogers was assigned certain customer accounts and was responsible for managing ABM's service delivery as well as customer relationship management of certain ABM accounts.
{¶15} 5. According to the common pleas complaint, Meyer's employment with ABM was terminated effective December 12, 2007, "in connection with a company restructuring and the acquisition of another company."
{¶16} 6. According to the common pleas complaint, Rogers informed ABM of her intention to resign on January 23, 2008, and her last day with the company was February 6, 2008.
{¶17} 7. According to the common pleas complaint, in January 2008, Meyer and Rogers formed QBS, a company that competes directly with ABM. Shortly after QBS was formed, it was awarded a contract for the "Easton Commons Property" that Rogers "participated in soliciting on behalf of ABM."
{¶18} 8. Among the several claims alleged in the common pleas complaint is misappropriation of ABM's trade secrets in violation of Ohio's Trade Secrets Act, R.C. 1333.61 et seq. ABM seeks damages and injunctive relief.
{¶19} 9. On March 7, 2008, the common pleas court issued a temporary restraining order against Meyer, Rogers, and QBS.
{¶20} 10. On April 9, 2008, the common pleas court approved a "Stipulated Confidentiality and Protective Order" ("SCPO") that had been negotiated by the parties. Set forth in 13 enumerated paragraphs, the SCPO provides:
* * * [P]ursuant to Rule 26 of the Ohio Rules of Civil Procedure, and in order to facilitate the parties' discovery in this case, the following procedure shall govern the production, use and handling of documents, testimony, and other written, recorded or graphic matter designated as "Confidential" by any party during these proceedings:
1[.] This Stipulated Confidentiality and Protective Order shall apply to designated portions of depositions, productions of documents, answers to interrogatories, responses to requests for admissions, and all other discovery undertaken pursuant to the Ohio Rules of Civil Procedure, as well as all testimony and evidence adduced at any hearing or trial and any other information produced or utilized by any party or non-party in connection with this action[.]
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7. Any person who obtains discovery material protected by this Stipulated Confidentiality and Protective Order through this action shall be instructed not to reveal or discuss such information with any person not entitled to receive such information, as set forth above. If counsel for any party shall believe it necessary, for the purpose of this litigation only, to disclose materials designated as CONFIDENTIAL by the other party to any person other than those designated in paragraph 6, counsel shall not do so without first obtaining written permission from counsel for the party that designated the materials CONFIDENTIAL.
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9. Nothing in this Stipulated Confidentiality and Protective Order shall prevent the parties from using, in accordance with the Order, discovery material protected by this Order in connection with the trial, deposition, motion, memorandum, or other proceeding in this action[.]
10. Nothing in this Stipulated Confidentiality and Protective Order shall prevent any party from seeking modification of this Stipulated Confidentiality and Protective Order, or from objecting to discovery that it believes to be otherwise improper.
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12[.] The Court retains jurisdiction to make such amendments, modifications, and...
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