State ex rel. Abner v. Elliott, 98-1786

• Court: United States State Supreme Court of Ohio
• Citation: 85 Ohio St.3d 11,706 N.E.2d 765
• Docket Number: No. 98-1786,98-1786
• Parties: ABNER et al., Appellants, v. ELLIOTT, Judge, Appellee.
• Decision Date: 17 March 1999

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85 Ohio St.3d 11 706 N.E.2d 765 [The STATE ex rel.] ABNER et al., Appellants,
v.
ELLIOTT, Judge, Appellee. No. 98-1786. Supreme Court of Ohio. Submitted Jan. 26, 1999.
Decided March 17, 1999.

[706 N.E.2d 766] Appellants, Donald Lee Abner and over eight hundred other persons, are workers and their representatives who filed actions in the Butler County Court of Common Pleas against various manufacturers, suppliers, installers, and distributors of products containing asbestos. Appellants claimed that they had been injured through exposure to asbestos. Respondent, Judge George Elliott, was assigned to hear all claims pending in

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these cases. Judge Elliott's orders governing discovery in any single case were binding in the proceedings in all of the cases.

In May 1997, Judge Elliott granted the motion of defendant O.K.I. Supply Co. for a protective order concerning appellants' attorneys' conduct during depositions in the asbestos cases. Among other things, Judge Elliott ordered that in future depositions in the asbestos litigation, counsel would refrain from making speaking objections or attempting to suggest answers or otherwise coach witnesses and that counsel would not confer with witnesses during depositions except to decide whether to assert a privilege.

[706 N.E.2d 767] In August 1997, a document entitled "Preparing for Your Deposition/Attorney Work Product" authored by Baron & Budd, P.C., a law firm representing appellants in the Butler County asbestos litigation, was disclosed during the deposition of a plaintiff represented by Baron & Budd in unrelated asbestos litigation in Texas. The document was purported to advise plaintiffs in asbestos personal-injury cases to testify in a manner that would not necessarily be consistent with the truth.

Defendant Raymark Industries, Inc. subsequently filed a motion to compel discovery, for a protective order, and for other relief based on its contention that the depositions in the Butler County asbestos litigation established that the plaintiffs had been improperly coached by either the same preparation document used by Baron & Budd in Texas or substantially similar advice. Judge Elliott held a hearing on Raymark's motion at which appellants' counsel conceded that some aspects of the Texas document were shocking and surprising and that the document should never have been used "in the first place." But appellants claimed that neither the Texas document nor anything similar had been used in the Butler County cases.

In September 1997, following the hearing, the court granted Raymark's motion in part and ordered the following:

"1. Defendants may inquire into and obtain discovery respecting allegedly improper preparation or coaching of witnesses by plaintiffs' counsel, and, or plaintiffs' counsel's agents, representatives and employees.

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"2. Defendants may redepose any plaintiff deposed prior to September 17, 1997 respecting alleged witness preparation and coaching.

"3. Discovery shall continue pursuant to the Case Management Order entered June 19, 1997. In any deposition taken after September 17, 1997 the matter of witness preparation and coaching shall be an appropriate area of inquiry.

"4. Any purported invasion of attorney-client privilege shall be brought to the court's attention for in camera review.

"5. Plaintiffs, plaintiffs' counsel, their employees, agents, and, or, representatives are enjoined and restrained from destroying, altering, or modifying in any way any documents, material, videos, photographs, or tangible things whatsoever which have been used, are intended to be used, or are available for use for the preparation of witnesses in this or in any other asbestos litigation involving plaintiffs' counsel. Such documents, materials, and tangible things shall be produced and made available for inspection and, or, copying by defendants' counsel within ten (10) days after the date hereof. Any claim of privilege involving any such documents, material, or tangible things shall be submitted to the court for in camera inspection."

On reconsideration of the September 1997 order, Judge Elliott entered an order in October 1997 that modified Paragraph 5 of the original order, so that the requested materials would be from asbestos litigation "pending in [Butler] county and in which Baron & Budd represent[s] plaintiffs."

Despite Judge Elliott's September and October 1997 orders, appellants did not provide the defendants in the asbestos cases with any witness preparation documents and, although claiming that all of these materials were protected from disclosure by the attorney work product and attorney-client privileges, appellants did not submit the materials to Judge Elliott for an in camera inspection. In addition, at a November 1997 deposition, after Judge Elliott overruled appellants' objections, appellants' counsel instructed the deponent not to answer questions concerning witness preparation based on work-product and attorney-client privileges.

As a result of the foregoing actions by appellants, defendant North American Refractories Company filed a motion for sanctions. In December 1997, after a hearing, Judge Elliott issued an order in which he found that the Texas deposition preparation document constituted evidence of improper coaching of prospective deponents, that it was reasonable to infer that similar deposition materials had been used to coach clients and witnesses in asbestos litigation in Butler County that had been filed by the same law [706 N.E.2d 768] firm that prepared the Texas document, that the court thereby issued its September and October 1997 discovery orders, and that appellants had not complied with those orders. Judge Elliott consequently ordered the following:

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"Therefore, at the trial of this case, upon request of defense counsel, the jury will be instructed to accept and consider the following as being conclusively proved facts established by the greater weight of the evidence, viz.:

"1. Prior to trial plaintiff and his co-workers met with plaintiff's attorneys and paralegals to prepare for this lawsuit.

"2. At least one such meeting occurred before (a) the preparation of plaintiff's answers to written interrogatories, (b) the deposition of plaintiff by defendants' counsel, and (c) the deposition of each co-worker.

"3. During each of those meetings, plaintiffs' attorneys or paralegals either gave to or showed plaintiff and the co-workers certain lists, photographs, or other items which disclosed the product name, manufacturer name, product type, product description, packaging description, location of use, time of use, and typical trade or job of the Armco workers who used numerous products manufactured by defendants.

"4. Before,...