State ex rel. Abner v. Elliott
| Decision Date | 17 March 1999 |
| Docket Number | No. 98-1786,98-1786 |
| Citation | 85 Ohio St.3d 11,706 N.E.2d 765 |
| Parties | ABNER et al., Appellants, v. ELLIOTT, Judge, Appellee. |
| Court | Ohio Supreme Court |
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 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.
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:
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 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:
In February 1998, after the Court of Appeals for Butler County dismissed appellants' attempt to appeal Judge Elliott's December 1997 order because it was not a final appealable order, appellants filed a complaint in the court of appeals for a writ of prohibition to prevent Judge Elliott from enforcing any of his discovery orders in the asbestos litigation and to specifically find that there was no evidence of a waiver of the attorney-client privilege or any evidence of fraud in any of their cases so as to require an in camera inspection of the privileged materials and testimony. Appellants claimed that Judge Elliott's discovery orders and sanctions were entered without any jurisdiction because they violated their attorney-client privilege.
The defendants in the Butler County asbestos litigation filed an amici curiae brief and Judge Elliott filed a Civ.R. 12(B)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The court of appeals granted Judge Elliott's motion and dismissed the cause.
This cause is now before the court upon appellants' appeal as of right as well as their request for oral argument.
Manley, Burke, Lipton & Cook and Andrew S. Lipton, Cincinnati; Pratt & Singer Co., L.P.A., and Michael R. Thomas, Middletown; Chester, Willcox & Saxbe, L.L.P., Columbus, and J. Craig Wright, for appellants.
John F. Holcomb, Butler County Prosecuting Attorney, and Victoria Daiker, Assistant Prosecuting Attorney, for appellee.
Baker & Hostetler L.L.P. and Robin E. Harvey, Cincinnati, urging affirmance for amici curiae, CBS Corp., f.k.a. Westinghouse Corp., Georgia Pacific Corp., and Uniroyal, Inc.
Baker & Hostetler L.L.P. and Wade Mitchell, cleveland, urging affirmance for amicus curiae, Beazer East, Inc.
Barron, Peck & Bennie and Dave W. Peck, Cincinnati, urging affirmance for amicus curiae, North American Refractories.
Israel, Wood & Puntil, P.C., and Chris Beck, Pittsburgh, PA, urging affirmance for amicus curiae, General Refractories.
Willman & Arnold and Ruth Antinone, Pittsburgh, PA, urging affirmance for amicus curiae, Combustion Engineering.
Regina M. Massetti, Cleveland, urging affirmance for amicus curiae, Ogelbay Norton Co.
Cash, Cash, Eagen & Kessel and Thomas L. Eagen, Jr., Cincinnati, urging affirmance for amicus curiae, Mallenkrodt, Inc.
Benesch, Friedlander, Coplan & Aronoff and Frederic X. Shadley, Cincinnati, urging affirmance for amicus curiae, AndCo., Inc.
Gallagher, Sharp, Fulton & Norman and Edward J. Cass, Cleveland, urging affirmance for amici curiae, George Reintjes and Janos Industrial Corp.
Thompson, Hine & Flory and Barbara J. Arison, cleveland, urging affirmance for amicus curiae, ...
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...consistently recognized trial courts' broad authority to enter protective orders in discovery. See, e.g., State ex rel. Abner v. Elliott (1999), 85 Ohio St.3d 11, 16, 706 N.E.2d 765. {¶ 75} In this regard, Biddle is consistent with the decisions of numerous other states, which have similarl......
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Burnham v. Cleveland Clinic, 2015–1127.
...including inherent authority to direct an in camera inspection of alleged privileged materials * * *." State ex rel. Abner v. Elliott, 85 Ohio St.3d 11, 16, 706 N.E.2d 765 (1999). The trial court did its job here and found the report to not be privileged; its decision can be reviewed on app......
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State ex rel. Citizens v. Register
...{¶ 18} In resolving these motions, we note that courts have broad discretion over discovery matters. State ex rel. Abner v. Elliott (1999), 85 Ohio St.3d 11, 16, 706 N.E.2d 765; Toney v. Berkemer (1983), 6 Ohio St.3d 455, 458, 6 OBR 496, 453 N.E.2d 700. This discretion, which is consistent ......
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State ex rel. Mason v. Burnside
...if that discretion is abused." Berthelot v. Derso (1999), 86 Ohio St.3d 257, 259, 714 N.E.2d 888; see also State ex rel. Abner v. Elliott (1999), 85 Ohio St.3d 11, 16, 706 N.E.2d 765 (writ of prohibition will not generally issue to challenge discovery orders). {¶ 12} Therefore, the judge di......
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Defending and Responding in General
...350 (N.Y.A.D. 4 Dep’t 1999). North Carolina: Alston v. Duke University , 514 S.E.2d 298 (1999). Ohio: State ex rel. Abner v. Elliott , 706 N.E.2d 765, 85 Ohio St.3d 11 (1999); Blank v. Parker , 704 N.E.2d 678, 94 Ohio Misc.2d 168 (Ohio 1998); Breech v. Turner , 712 N.E.2d 776, 127 Ohio.App.......
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Enforcement
...N.Y.S.2d 350 (N.Y.A.D. 1999). North Carolina: Alston v. Duke University , 514 S.E.2d 298 (1999). Ohio: State ex rel. Abner v. Elliott , 706 N.E.2d 765, 85 Ohio St.3d 11 (1999); Blank v. Parker , 704 N.E.2d 678, 94 Ohio Misc.2d 168 (Ohio 1999); Breech v. Turner , 712 N.E.2d 776, 127 Ohio.App......
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Enforcement
...N.Y.S.2d 350 (N.Y.A.D. 1999). North Carolina: Alston v. Duke University , 514 S.E.2d 298 (1999). Ohio: State ex rel. Abner v. Elliott , 706 N.E.2d 765, 85 Ohio St.3d 11 (1999); Blank v. Parker , 704 N.E.2d 678, 94 Ohio Misc.2d 168 (Ohio 1999); Breech v. Turner , 712 N.E.2d 776, 127 Ohio.App......
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Enforcement
...N.Y.S.2d 350 (N.Y.A.D. 1999). North Carolina: Alston v. Duke University , 514 S.E.2d 298 (1999). Ohio: State ex rel. Abner v. Elliott , 706 N.E.2d 765, 85 Ohio St.3d 11 (1999); Blank v. Parker , 704 N.E.2d 678, 94 Ohio Misc.2d 168 (Ohio 1999); Breech v. Turner , 712 N.E.2d 776, 127 Ohio.App......