[Cite as Caiazza v. Mercy Med. Ctr., Inc., 2012-Ohio-3940.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
MATTHEW P. CAIAZZA : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 2012-CA-83
MERCY MEDICAL CENTER, INC., :
ET AL :
: OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2011CV02682
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: August 27, 2012
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee-Jennifer Jones
SALLY HENNING CRAIG G. PELINI
7296 Ashburton Circle N.W. PAUL B. RICARD
North Canton, OH 44720 Bretton Comons - Suite 400
8040 Cleveland Avenue N.W.
TODD M. CONNELL North Canton, OH 44720
P.O. Box 782
Tallmadge, OH 44306 For Defendants-Appellees
Mercy Medical Center
KAREN SOEHNLEN MCQUEEN
Krugliak, Wilkins, Griffiths
& Dougherty Co., LPA
4775 Munson Street N.W.
Canton, OH 44718
[Cite as Caiazza v. Mercy Med. Ctr., Inc., 2012-Ohio-3940.]
Gwin, J.,
{¶1} Appellant Matthew P. Caiazza [“Caiazza”] appeals the April 20, 2012 and
January 20, 2012 judgment entries of the Stark County Court of Common Pleas
granting appellee Mercy Medical Center, Inc. and Peter Christ [“MMC”] and appellee
Jennifer Jones [“Jones”] motions to compel discovery of attorney-client
communications.
STANDARD OF REVIEW
{¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
(E) Determination and judgment on appeal. The appeal will be determined
as provided by App. R. 11.1. It shall be in sufficient compliance with App.
R. 12(A) for the statement of the reason for the court's decision as to each
error to be in brief and conclusionary form. The decision may be by
judgment entry in which case it will not be published in any form.
{¶3} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusionary decision more quickly than in a case
on the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th
Dist. 1983). This appeal shall be considered in accordance with the aforementioned
rule.
FACTS AND PROCEDURAL HISTORY
{¶4} Caiazza filed suit against MMC and Jones following his termination from
employment at MMC. Caiazza's Complaint contained causes of action for spoliation,
Stark County, Case No. 2012-CA-83 3
sex discrimination, fraud, unlawful retaliation, and aiding and abetting unlawful
discrimination.
{¶5} MMC terminated Caiazza’s employment after he admitted to touching
Jones's breasts. As a result of this conduct, Caiazza received a criminal charge for
sexual imposition, and eventually pled to a charge of disorderly conduct.
{¶6} While the criminal charge was pending, on October 20, 2010, Caiazza
issued a subpoena duces tecum to MMC requesting "certified copies of Matthew
Caiazza's and Jennifer Jones's employee and personnel records, as well as any videos
and all other documentation involving the investigation of Matthew Caiazza and/or
Jennifer Jones." (See Caiazza's First Amended Complaint at ¶110). It is Caiazza's
allegation that MMC's response to Caiazza’s subpoena duces tecum was incomplete
and did not contain all information regarding Jones and Caiazza under MMC's control,
Id. at ¶119. Caiazza alleges that the withheld information was vital to his ability to
prevail in the then pending criminal action and that he has been harmed by the failure to
provide the complete records. (Caiazza’s First Amended Complaint at ¶84).
{¶7} On March 8, 2012, MMC filed a Motion to Compel discovery due to waiver
of attorney-client privilege, or in the alternative, Motion in Limine (hereinafter referred to
as "MMC's Motion to Compel"). On March 13, 2012, Jones filed a Motion to Compel
discovery or, in the alternative, Motion for Summary Judgment (hereinafter referred to
as "Jones's Motion to Compel").
{¶8} On April 20, 2012, the Trial Court below granted both Motions to Compel
stating:
Stark County, Case No. 2012-CA-83 4
{¶9} Upon review, this Court finds that, based upon the
allegations of fraud and spoliation, Caiazza apparently intends to put at
issue his defense, including trial strategy, of the criminal charges resulting
from the allegations asserted in this matter. As such, the Court finds that
Caiazza has waived the attorney-client privilege with respect to such
matters and, further, finds that Mercy and Jones are entitled to discovery
in this regard. Accordingly, the Motions to Compel are, hereby, sustained
and discovery shall proceed in accordance with this entry.
ASSIGNMENTS OF ERROR
{¶10} Caiazza raises one assignment of error,
{¶11} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING
APPELLEES’ MOTIONS TO COMPEL DISCOVERY.”
I.
{¶12} The issue before this Court is whether the trial court abused its discretion
in granting MMC and Jones’ motions to compel. Specifically, whether the trial court
abused its discretion in granting Jones’ request for copies “of [Caiazza’s] ‘file’ for his
underlying criminal citation wherein he was represented by Attorney Michael Boske...”
and both Jones and MMC’s request “that [Caiazza] be ordered to respond to all
questions poised concerning Caiazza’s trial strategy, including, but not limited to
discussions with Attorney Boske...” [Motion to Compel Discovery Or, In the Alternative,
Motion For Summary Judgment, filed on behalf of Jennifer Jones, March 13, 2012;
Motion To Compel Due to Waiver Of Attorney-Client Privilege, Or, In the Alternative,
Motion in Limine, filed on behalf of MMC and Peter Christ, March 8, 2012.]
Stark County, Case No. 2012-CA-83 5
ANALYSIS
{¶13} Generally, discovery orders are not appealable. Walters v. Enrichment
Center of Wishing Well, Inc., 78 Ohio St.3d 118, 676 N.E.2d 890(1997). However, if the
judgment orders a party to disclose allegedly privileged material, it is appealable
pursuant to R.C. 2505.02(A)(3) and (B)(4). Northeast Professional Home Care, Inc. v.
Advantage Home Health Servs., Inc., 188 Ohio App.3d 704, 936 N.E.2d 964, 2010-
Ohio-1640 at ¶ 34.
{¶14} In the case at bar, we are confronted with two distinct privileges
concerning the information sought from Caiazza, the attorney-client privilege and the
work-product privilege.
{¶15} “The attorney-client privilege is one of the oldest recognized privileges for
confidential communications.” Swidler & Berlin v. United States, 524 U.S. 399, 403, 118
S.Ct. 2081, 141 L.Ed.2d 379(1998). In Jackson v. Greger, 110 Ohio St.3d 488, 2006-
Ohio-4968, 854 N.E.2d 487, the court stated, “R.C. 2317.02(A) provides a testimonial
privilege—i.e., it prevents an attorney from testifying concerning communications made
to the attorney by a client or the attorney's advice to a client. A testimonial privilege
applies not only to prohibit testimony at trial, but also to protect the sought-after
communications during the discovery process.” Id. at ¶ 7, fn. 1. There are a number of
well-established exceptions to the attorney-client privilege. Squire, Sanders & Dempsey,
L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 937 N.E.2d 533, 2010-Ohio-
4469, ¶24–43. The privilege is not absolute, and there is no presumption of
confidentiality of all communications made between an attorney and client. Moskovitz v.
Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 660-661, 635 N.E.2d 331(1994). The
Stark County, Case No. 2012-CA-83 6
determination whether a communication should be afforded the cloak of privilege
depends on the circumstances of each case, and the privilege must yield when justice
so requires. Lemley v. Kaiser, 6 Ohio St.3d 258, 264, 452 N.E.2d 1304(1983).
{¶16} In Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., the
Court discussed the work-product privilege,
The work-product doctrine emanates from Hickman v. Taylor
(1947), 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451, in which the
Supreme Court of the United States recognized that “[p]roper preparation
of a client's case demands that [the 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 (153
F.2d 212, 223) 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.”
Stark County, Case No. 2012-CA-83 7
Addressing these concerns, the work-product doctrine provides a
qualified privilege protecting the attorney's mental processes in
preparation of litigation, establishing “a zone of privacy in which lawyers
can analyze and prepare their client's case free from scrutiny or
interference by an adversary.” Hobley v. Burge (C.A.7, 2006), 433 F.3d
946, 949. However, as the Supreme Court of the United States has
explained, “the doctrine is an intensely practical one, grounded in the
realities of litigation in our adversary system,” and the privilege afforded by
the work-product doctrine is not absolute. United States v. Nobles (1975),
422 U.S. 225, 238 and 239, 95 S.Ct. 2160, 45 L.Ed.2d 141.
Civ.R. 26(B)(3) describes the work-product doctrine as it applies in
civil cases in Ohio: “Subject to the provisions of subdivision (B)(5) of this
rule [relating to retained experts], a party may obtain discovery of
documents, electronically stored information and tangible things prepared
in anticipation of litigation or for trial by or for another party or by or for that
other party's representative (including his attorney, consultant, surety,
indemnitor, insurer, or agent) only upon a showing of good cause
therefor.”
In Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854
N.E.2d 487, we examined the meaning of “good cause,” stating that “a
showing of good cause under Civ.R. 26(B)(3) requires demonstration of
need for the materials—i.e., a showing that the materials, or the
information they contain, are relevant and otherwise unavailable. The
Stark County, Case No. 2012-CA-83 8
purpose of the work-product rule is ‘(1) to preserve the right of attorneys to
prepare cases for trial with that degree of privacy necessary to encourage
them to prepare their cases thoroughly and to investigate not only the
favorable but the unfavorable aspects of such cases and (2) to prevent an
attorney from taking undue advantage of his adversary's industry or
efforts.’ Civ.R. 26(A). To that end, Civ.R. 26(B)(3) places a burden on the
party seeking discovery to demonstrate good cause for the sought-after
materials.
While the protections for attorney work product provided in Civ.R.
26(B)(3) expressly apply to “documents, electronically stored information
and tangible things prepared in anticipation of litigation,” protection also
extends to intangible work product. Hickman, 329 U.S. at 511, 67 S.Ct.
385, 91 L.Ed. 451; In re Cendant Corp. Securities Litigation (C.A.3, 2003),
343 F.3d 658, 662; United States v. One Tract of Real Property (C.A.6,
1996), 95 F.3d 422, 428, fn. 10; 8 Wright, Miller, Kane & Marcus, Federal
Practice and Procedure (3d Ed.2009), Section 2024. The protection for
intangible work product exists because “[o]therwise, attorneys' files would
be protected from discovery, but attorneys themselves would have no
work product objection to depositions.” In re Seagate Technology, L.L.C.
(C.A.Fed., 2007), 497 F.3d 1360, 1376.
Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161,
937 N.E.2d 533, 2010-Ohio-4469, ¶¶54-58.
Stark County, Case No. 2012-CA-83 9
{¶17} In the case at bar, the trial court compelled copies “of [Caiazza’s] ‘file’ for
his underlying criminal citation wherein he was represented by Attorney Michael
Boske...” and “that [Caiazza] be ordered to respond to all questions poised concerning
Caiazza’s trial strategy, including, but not limited to discussions with Attorney Boske. No
evidentiary hearing was conducted, and likewise no in-camera review was undertaken.
Rather, the trial court summarily compelled production finding that Caiazza has “waived”
the “attorney-client” privilege; the trial court did not address the work-product privilege.
{¶18} We find that the trial court’s order to be overly broad. Some of the
information may be subject to a claim of work-product privilege. See In re Election of
November 6, 1990 for the Office of Attorney General of Ohio, 57 Ohio St.3d 614, 615,
567 N.E.2d 243(1991) (a waiver of attorney/client privilege does not necessarily
constitute a waiver under the work-product doctrine). That privilege is held by Attorney
Boske. See, In re Grand Jury, 4th Dist. Nos. 93CA09, 93CA10, 93CA12, 1995 WL
365386(June 1, 1995); Handguards, Inc. v. Johnson & Johnson, 413 F.Supp.926,
929(N.D. Cal. 1976). Whether Caiazza, as opposed to his attorney, has a “file” for his
underlying criminal citation is not disclosed in the record before this Court. Nor has that
file, if one exits, or the file of Caiazza’s attorney, been made a part of the appellate
record.
{¶19} Our review reveals that the record is insufficiently developed to determine
whether compelling discovery of the case file and or the answers to questions yet to be
asked violated the attorney-client privilege or the work-product doctrine. Some
documents and answers will undoubtedly be privileged or will be protected by the work-
product doctrine, and conversely some will not. To distinguish between protected and
Stark County, Case No. 2012-CA-83 10
unprotected materials, the trial court should have, at a minimum, conducted an
evidentiary hearing or undertaken an in-camera review of the case file. As the court in
Grace v. Mastruserio, 182 Ohio App.3d 243, 912 N.E.2d 600, 2007-Ohio-3942 (1st
Dist.), stated:
A discovery order compelling disclosure of an attorney’s entire case
file “necessarily reveals the attorney’s mental processes, thus invoking
work-product protection,” and consequently that file must be reviewed in
camera, or an evidentiary hearing must be conducted to distinguish
between discoverable and undiscoverable material. Thus, granting
Mastruserio’s motion to compel production of an entire case file without a
review or evidentiary hearing was an abuse of discretion. The trial court
was in no position to find, as it necessarily did, that the entire case file was
protected neither by the attorney-client privilege nor by the work-product
doctrine.
When a party seeks to compel discovery of the entirety of an
attorney case file, the trial court, using its broad discretion, is best suited
to initially determine whether the evidence is discoverable or is protected
under attorney-client privilege or the work-product doctrine, and for that
determination to be a reasonable, informed, and conscionable one, the
court must conduct an evidentiary hearing or perform an in camera
inspection of the materials sought to be disclosed.
Id. at ¶¶39-40.
Stark County, Case No. 2012-CA-83 11
{¶20} A trial court abuses its discretion when it fails to hold an evidentiary
hearing or in-camera review to analyze the requested material alleged to be work-
product or attorney-client privileged. Grace v. Mastruserio at ¶42; Chiasson v. Doppco
Development, LLC, 8th Dist. No. 93112, 2009-Ohio-5013, ¶16; Estate of Hohler v.
Hohler, 185 Ohio App.3d 420, 924 N.E.2d 419, 2009-Ohio-7013, ¶56(7th Dist.).
{¶21} In the case at bar, we conclude that the trial court abused its discretion by
compelling discovery of the entire case file without holding an evidentiary hearing or
conducting an in-camera review.
Stark County, Case No. 2012-CA-83 12
{¶22} Accordingly, the sole assignment of error is sustained, in part.
{¶23} We reverse the order of the Stark County Court of Common Pleas
compelling discovery and remand this case with directions for the trial court to conduct
an evidentiary hearing or to undertake an in-camera review of the case file, and to
decide which materials are protected, as well as which are unprotected, under the
attorney-client privilege or the work-product doctrine. The trial court can then release
that portion of the file that is directly related to Caiazza’s claims for fraud and spoliation.
See, Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d
161, 937 N.E.2d 533, 2010-Ohio-4469, ¶¶62-63. Based upon the documents released,
if any, the trial court can then instruct counsel for the parties what areas can be inquired
into during any subsequent deposition of Caiazza.
By Gwin, J., and
Delaney P.J., concurs;
Hoffman, J., dissents
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN
WSG:clw 0725
Stark County, Case No. 2012-CA-83 13
Hoffman, J. dissenting
{¶24} I respectfully dissent, in part, from the majority’s opinion.
{¶25} While I agree the trial court should conduct an in camera review of
Appellant’s criminal file to prevent disclosure of irrelevant work product contained in his
or Attorney Boske’s file, I agree with the trial court Appellant has waived his right to
assert the attorney client privilege.1
{¶26} I do so for two separate reasons. First and foremost, because the nature
of Appellant’s underlying claim for fraud renders the strategy behind the resolution of his
criminal charge crucial to Appellee’s ability to defend the charge asserted against it. I
find this is the type of case where justice requires disclosure as recognized in Lemley v.
Kaiser (1983), 6 Ohio St.3d 258.
{¶27} Second, I believe Appellant’s partial disclosure of his conversation with
Attorney Boske operates as a waiver of the privilege.
{¶28} I would affirm the trial court’s judgment.
________________________________
HON. WILLIAM B. HOFFMAN
1
I find the majority’s conclusion some answers will undoubtedly be privileged or
protected work product premature even given their proposed disposition of this issue.
(Majority Opinion at 19).
[Cite as Caiazza v. Mercy Med. Ctr., Inc., 2012-Ohio-3940.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MATTHEW P. CAIAZZA :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
MERCY MEDICAL CENTER, INC., ET AL :
:
:
Defendants-Appellees : CASE NO. 2012-CA-83
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas, Ohio, is reversed and remanded to the trial
court for further proceedings in accordance with our opinion and the law. Costs to be
divided equally between the parties.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. WILLIAM B. HOFFMAN