State ex rel. Ohio Academy of Nursing Homes, Inc. v. Ohio Dept. of Medicaid

[Cite as State ex rel. Ohio Academy of Nursing Homes, Inc. v. Ohio Dept. of Medicaid, 2017-Ohio-8000.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Ohio Academy :
of Nursing Homes, Inc., et al.,
:
Relators-Appellees,
: No. 16AP-102
v. (C.P.C. No. 03CV-12970)
:
Ohio Department of Medicaid, et al., (REGULAR CALENDAR)
:
Respondents-Appellants.
:

P L U R A L I T Y D E C I S I O N

Rendered on September 29, 2017

On brief: Webster & Associates Co., LPA, Geoffrey E.
Webster and Bryan M. Pritikin, for appellees. Argued:
Geoffrey E. Webster.

On brief: Michael DeWine, Attorney General, Rebecca L.
Thomas, and Ara G. Mekhjian, for appellants. Argued:
Rebecca L. Thomas.

APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J., lead opinion.
{¶ 1} Respondents-appellants, Ohio Department of Medicaid, and its current
director, John B. McCarthy, (collectively "Department"1) appeal a January 29, 2016
decision of the Franklin County Court of Common Pleas granting two motions to compel
responses to questions propounded during several depositions. The Department had
objected to the questions during the depositions on the basis of attorney-client privilege
and the work product doctrine and instructed the witnesses not to answer. In a plurality

1 By operation of law the Ohio Department of Medicaid succeeded the original respondent in the suit (Ohio

Department of Job and Family Services) as the state agency responsible for the administration of Ohio's
Medicaid program. R.C. 5162.03; R.C. 5160.011.
No. 16AP-102 2

decision, the Court finds that some of the questions did not seek material protected by
either attorney-client privilege or the work product doctrine, yet other questions did seek
material protected by either the privilege or the doctrine. We also find some of the issues
to be moot and some of the issues to be not final and appealable. Therefore, the Court
dismisses the appeal in part, affirms the trial court's decision in part, and reverses the trial
court's decision in part.
I. FACTS AND RELEVANT PROCEDURAL HISTORY
{¶ 2} This case was originally filed on November 25, 2003 and has an extensive
history spanning over a decade but largely not relevant to this appeal. This decision is
limited in review to the procedural issues and related information as appealed by the
Department.
{¶ 3} The operative complaint, filed on September 25, 2007, consists of a petition
for two writs of mandamus and other relief on behalf of a purported class. The relators-
appellees, Ohio Academy of Nursing Homes, Inc., Willowood Care Center of Brunswick,
Inc., Spring Meadows Care Center, Arcadia Acres, Inc., and Main Street Terrace Care
Center (collectively "Nursing Home Group") appear as putative representatives of an
alleged class for which certification has been sought but no determination issued. The first
writ of mandamus sought would require the Department to consider in a genuine and
unbiased fashion whether to approve Medicaid reimbursement to the Nursing Home
Group for increased reasonable costs of services provided based on a large rate increase in
Ohio Bureau of Workers' Compensation ("BWC") premiums for the period of January 1,
2003 through June 30, 2004. (Sept. 25, 2007 Fourth Amend. Compl. at ¶ 9-31; Feb. 26,
2008 Entry Granting Partial Dismissal at 17-19.) The second writ would require the
Department to actually pay to the Nursing Home Group such adjusted rates according to
findings favorable to the Nursing Home Group made by the Department regarding the first
writ. (Fourth Amen. Compl. at ¶ 33-35, Prayer for Relief.)
{¶ 4} On February 15, 2008, the Nursing Home Group moved for partial summary
judgment arguing that it was entitled to the first writ of mandamus because the record
showed that the Department had a clear legal duty to raise reimbursement for increased
costs due to a "government mandate," BWC's higher premium rate imposed on employers.
(Feb. 15, 2008 Mot. for Partial Summ. Jgmt. at 1.) Before any response to the Nursing
Home Group's motion, the trial court, acting on a previously briefed motion to dismiss,
No. 16AP-102 3

dismissed all claims for relief other than the first writ. (Feb. 26, 2008 Entry Granting
Partial Dismissal at 17-19.) Three days later, on February 29, 2008, the Department moved
for summary judgment. At issue in both summary judgment motions was whether the
Department appropriately considered whether to provide additional reimbursement or
whether, as the Nursing Home Group alleged, the Department's decision was "a foregone
conclusion without any support, in fact or law." (Feb. 15, 2008 Mot. for Partial Summ.
Jgmt. at 11.)
{¶ 5} The Nursing Home Group took the depositions of five employees of the Ohio
Department of Job and Family Services ("ODJFS") (which was, at the relevant times, the
state agency in charge of Ohio's Medicaid program and referred to as the "Department")
and also one employee of the BWC. During these depositions, counsel for the Department
objected to numerous questions asked on behalf of the Nursing Home Group and cited
work product or attorney-client privilege as bases for the objections. The Department
instructed the witnesses not to answer on each occasion.
{¶ 6} The Nursing Home Group filed motions to compel responses to the questions
and for sanctions on March 19 and 25, 2008. The Nursing Home Group also filed a motion
to stay briefing on summary judgment until the trial court had an opportunity to rule on
the motions to compel. On April 9, 2008, the trial court granted the stay and set alternative
deadlines for the Nursing Home Group to respond to summary judgment depending on
whether it granted or denied the motions to compel. The trial court noted, "[a] decision on
those motions will be forthcoming shortly." (Apr. 9, 2008 Decision & Entry at 3.)
{¶ 7} Nearly eight years later, on January 29, 2016, the trial court granted both
motions to compel and delayed determination of the sanctions motion until the close of
discovery. The Department filed a notice of appeal on February 10, 2016. The Nursing
Home Group filed a motion to dismiss the appeal. However, in a memorandum decision
issued on April 12, 2016, this Court denied the Nursing Home Group's motion. State ex rel.
Ohio Academy of Nursing Homes v. Ohio Dept. of Medicaid, 10th Dist. No. 16AP-102
(Apr. 12, 2016) (memorandum decision).
II. ASSIGNMENTS OF ERROR
{¶ 8} The Department posits two assignments of error for our review:
No. 16AP-102 4

[1.] The lower court erred by granting the motions to compel
based on a misunderstanding of the facts and issues that were
properly before it.

[2.] The lower court erred by granting the motions to compel
without addressing the Department's arguments, which were
meritorious.

In this lead opinion, I address the Department's two assignments of error in reverse order,
discussing the law of attorney-client privilege and the work product doctrine generally, and
thereafter, organizing the discussion according to the names of the deponents from whom
the Nursing Home Group has sought discovery.
III. DISCUSSION
A. Second Assignment of Error—Whether the Trial Court Correctly
Concluded that the Questions Objected to did not Seek Privileged
Communications or Work Product
1. The Attorney-Client Privilege
{¶ 9} The Supreme Court of Ohio has explained:

Ordinarily, a discovery dispute is reviewed under an abuse-of-
discretion standard. Tracy v. Merrell Dow Pharmaceuticals,
Inc. (1991), 58 Ohio St.3d 147, 151-152, 569 N.E.2d 875.
However, if the discovery issue involves an alleged privilege, as
in this case, it is a question of law that must be reviewed de
novo. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,
2009 Ohio 2496, 909 N.E.2d 1237, ¶ 13.

Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, ¶ 13. Insofar as factual
issues must be determined by the trial court as a predicate to resolving the legal question
of privilege, such factual determinations should be accorded deference. MA Equip. Leasing
I, LLC v. Tilton, 10th Dist. No. 12AP-564, 2012-Ohio-4668, ¶ 18.
{¶ 10} "In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A),
and in cases that are not addressed in R.C. 2317.02(A), by common law." State ex rel. Leslie
v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 18; see also, e.g., State
ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009,
¶ 27 ("In Ohio, the attorney-client privilege is governed both by statute, R.C. 2317.02(A),
which provides a testimonial privilege, and by common law, which broadly protects against
any dissemination of information obtained in the confidential attorney-client
relationship.").
No. 16AP-102 5

{¶ 11} The Ohio Revised Code provides for the attorney-client privilege such that:

The following persons shall not testify in certain respects:

(A)

(1) An attorney, concerning a communication made to the
attorney by a client in that relation or concerning the
attorney's advice to a client, except that the attorney
may testify by express consent of the client or, if the
client is deceased, by the express consent of the
surviving spouse or the executor or administrator of
the estate of the deceased client. However, if the client
voluntarily reveals the substance of attorney-client
communications in a nonprivileged context * * *, the
attorney may be compelled to testify on the same
subject.

R.C. 2317.02(A)(1). Although this statute on its face mentions only that certain "persons"
are not permitted to "testify," the Supreme Court has explained that the reach of R.C.
2317.02(A)(1) is broader:

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
soughtafter [sic] communications during the discovery
process. The purpose of discovery is to acquire information for
trial. Because a litigant's ultimate goal in the discovery process
is to elicit pertinent information that might be used as
testimony at trial, the discovery of attorney-client
communications necessarily jeopardizes the testimonial
privilege. Such privileges would be of little import were they
not applicable during the discovery process.

Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, ¶ 7, fn. 1.
{¶ 12} Common law provides for the attorney-client privilege such that it can be
analyzed according to these numbered factors:

" '(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently
protected (7) from disclosure by himself or by the legal adviser,
(8) unless the protection is waived.' " State ex rel. Leslie v. Ohio
No. 16AP-102 6

Hous. Fin. Agency, 105 Ohio St.3d 261, 2005 Ohio 1508, 824
N.E.2d 990, ¶ 21, quoting Reed v. Baxter, 134 F.3d 351, 355-
356 (6th Cir. 1998); Perfection Corp. v. Travelers Cas. & Sur.,
153 Ohio App.3d 28, 2003 Ohio 3358, 790 N.E.2d 817, ¶ 12.

State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, ¶ 27. As a result,
according to either analysis, statutory or common law, it is the contents of confidential
communications that is protected.

[T]he attorney-client privilege applies to communications
between attorneys and their clients pertaining to the attorneys'
legal advice. See Thomas [v. Ohio State Univ., 71 Ohio St.3d
245, 249 (1994)]. "Facts within [the attorney's] own
knowledge, rather than confidential communications," are not
within the attorney-client privilege. In re Martin (1943), 141
Ohio St. 87, 104-105, 47 N.E.2d 388.

State ex rel. Beacon Journal Publishing Co. v. Bodiker, 134 Ohio App.3d 415, 424 (10th
Dist.1999).
2. The Work Product Doctrine
{¶ 13} The work product doctrine offers some protection for materials prepared by
attorneys, even if they are not communications of the sort protected by attorney-client
privilege. The United States Supreme Court has explained:

[I]t is essential that a lawyer work with a certain degree of
privacy, free from unnecessary intrusion by opposing parties
and their counsel. Proper preparation of a client's case
demands that [(s)]he assemble information, sift what [(s)]he
considers to be the relevant from the irrelevant facts, prepare
his [or her] legal theories and plan his [or her] 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 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 [or
her] 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.
No. 16AP-102 7

Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). "Discovery was hardly intended to enable
a learned profession to perform its functions either without wits or on wits borrowed from
the adversary." Id. at 516 (Jackson, J. concurring).
{¶ 14} The Supreme Court of Ohio has explained that "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.' " (Emphasis sic.) Squire,
Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-
4469, ¶ 55, quoting Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.2006). The Supreme Court
has also reasoned that " '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." Squire, Sanders & Dempsey at ¶ 55, quoting United States v.
Nobles, 422 U.S. 225, 238-39 (1975).
{¶ 15} In Ohio, the work product doctrine also has a basis in rule. Civ.R. 26 provides
that:

[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.

Civ.R. 26(B)(3).

"[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 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."

Squire, Sanders & Dempsey at ¶ 57, quoting Jackson at ¶ 16.
No. 16AP-102 8

3. Questions Asked During March 17, 2008 Martin Deposition
{¶ 16} Patricia Martin testified that she was employed as the Assistant Deputy
Director for Medicaid Operations within ODJFS (the Department) at the relevant time
periods. (Mar. 17, 2008 Martin Dep. at 6.) Counsel for the Department objected a number
of times during the deposition based on the work product doctrine or the attorney-client
privilege, but in most instances, the witness answered the question anyway by stating that
she did not recall.2 Id. at 18-25. However, in one instance Martin refused to answer:

[BY MR. WEBSTER:]

Q. * * * Do you recall ever meeting with the Director regarding
these rate reconsideration requests?

MS. THOMAS: Objection. To the extent that this would involve
disclosing work product in anticipation of or because of
litigation, I would instruct the witness not to answer if that's
the case.

THE WITNESS: No answer.

Id. at 23.
{¶ 17} Attorney-client privilege protects communications between attorneys and
clients made for the purposes of obtaining or giving legal advice. Whether or not Martin
met with the director of the Department concerning rate reconsideration requests is not a
question that seeks or would elicit privileged communications; it is a simple "yes" or "no"
answer that is not subject to confidentiality and nondisclosure because of the privilege.
{¶ 18} Nor does the question require the disclosure of attorney work product. The
Department argues that this question could have included meetings that occurred after the
lawsuit was filed. The Department posits that regardless of when the meetings took place
the fact of whether there were meetings could have "shed light on the Department's
evaluation of this matter in the context of [] anticipation [of litigation]." (Apr. 25, 2016
Department's Brief at 32.) Whether a meeting took place between two employees of ODJFS
regarding a request for a rate adjustment which ODJFS was obligated to consider is not an
attorney's "interviews, statements, memoranda, correspondence, briefs, mental

2While some of this deposition conduct is the subject of a motion for sanctions, all that is before us is whether
the trial court properly compelled answers to questions over the objections that resulted in the witness's
refusal to answer.
No. 16AP-102 9

impressions, [or] personal beliefs." Hickman at 511. Requiring an answer to the question
is not an attempt to litigate the case on "borrowed" wits. Id. at 516. The trial court did not
err when it ordered the Department through its witness to answer to this question.
{¶ 19} All three judges of the panel concur in their review of the trial court's decision
concerning the deposition testimony of Martin and join as a majority to overrule the second
assignment of error as it relates to the questions asked of Martin at her March 17, 2008
deposition. Accordingly, the trial court's decision and order as to the testimony of Martin
is affirmed.
4. Questions Asked During March 17, 2008 Weibl Deposition
{¶ 20} Lynne Weibl testified as an employee of ODJFS serving as the Department's
in-house counsel. (Mar. 17, 2008 Weibl Dep. at 6-8.) Weibl testified that she had not
entered an appearance in the litigation and that the Attorney General's office appeared on
its behalf. Id. at 9-10. In the deposition, counsel for the Nursing Home Group asked Weibl
a series of questions related to a rate adjustment request letter (Nursing Home Group's Ex.
4) and ODJFS' response letter (Nursing Homes Group's Ex. 7). See Exs. 4, 7, Feb. 15, 2008
Mot. for Partial Summ. Jgmt. Counsel for the Department, Rebecca Thomas, objected and
instructed the witness as follows:3

[BY MR. WEBSTER:]

Q. Do you know who in the Department was assigned the
responsibility of reviewing and considering this request?

A. I believe it was Mr. Saxe, Ms. Evers, Mr. Blair.

Q. * * * Did you attend any meetings where [Nursing Home
Group]'s Exhibit 4 was the subject of the meeting?

MS. THOMAS: Objection. This may involve a disclosure of
work product in anticipation of litigation and/or attorney-
client privilege and I will instruct the witness not to answer if
that's the case.

THE WITNESS: I cannot answer.

(Weibl Dep. at 10-11.)

3Although the Nursing Home Group alleged additional improper objections by Thomas in combined motions
to compel and for sanctions, I address only those instances in which the witness was instructed not to answer
and did not answer.
No. 16AP-102 10

[BY MR. WEBSTER:]

Q. And do you know who was assigned responsibility in the
Department of Job and Family Services to respond to this
request?

A. I believe it was Mr. Saxe, Ms. Evers and Mr. Blair.

Q. * * * And did you attend any meetings in which this
document was the subject of discussion?

MS. THOMAS: Same objection, work product and/or attorney-
client privilege. I am going to instruct the witness not to answer
if answering would disclose either of those.

THE WITNESS: For those reasons, I don't answer.

Id. at 11-12.

[BY MR. WEBSTER:]

Q. * * * Who was the author of Exhibit 7, of the content of
Exhibit 7?

MS. THOMAS: Objection. This may involve the disclosure of
attorney-client privileged communications and/or work
product. I am going to instruct the witness not to answer if that
is the case.

THE WITNESS: For those reasons, I cannot answer.

Id. at 12.

[BY MR. WEBSTER:]

Q. * * * Do you know the name of the individual who actually
prepared the content of [Nursing Home Group]'s Exhibit 7?

MS. THOMAS: Objection. To the extent that this would require
disclosure of attorney-client privileged communication or work
product, I will instruct the witness not to answer.

THE WITNESS: For those reasons, I cannot answer.

Id. at 14-15.
No. 16AP-102 11

[BY MR. WEBSTER:]

Q. * * * Did you author any part of [Nursing Home Group]'s
Exhibit 7, the letter that was sent by the Department to me?

MS. THOMAS: Objection. It calls for privileged attorney-client
communication and/or work product, and to the extent that it
does, I would instruct the witness not to answer.

THE WITNESS: For those reasons, I cannot answer.

Id. at 16.
{¶ 21} The Department argues that knowing who participated in meetings about
exhibits 4 and 7 could suggest what the Department found significant about the case.
(Department's Brief at 26-27.) The Department also argues that whether Weibl
participated in drafting exhibit 7 is an attempt to ascertain the content of communications
between Weibl and her client, the Department. (Department's Brief at 28-29.)
{¶ 22} But the exhibits that were discussed in Weibl's deposition were
correspondence between the parties to the litigation. Exhibit 4 is a letter sent by counsel
for the Nursing Home Group to the Department, and exhibit 7 is a response sent by the
Department to counsel for the Nursing Home Group. Intentionally exchanged materials
between parties are not protected work product or confidential attorney-client
communications. Whether or not Weibl authored any part of a letter sent to opposing
counsel by the Department, requires a simple "yes" or "no" answer. I would find answering
the question involves neither privilege nor work product, since an attorney may be
compelled to testify as to otherwise privileged communications "if the client voluntarily
reveals the substance of attorney-client communications in a nonprivileged context."
(Emphasis added.) R.C. 2317.02(A)(1). Neither is it work product. " '[P]roduction of
privileged documents to another party waives both the attorney-client privilege and the
work product privilege.' " Komorowski v. John P. Hildebrand Co., L.P.A., 8th Dist. No.
101500, 2015-Ohio-1295, ¶ 24, quoting United States v. Smith, 245 F.R.D. 605, 613
(N.D.Ohio 2007), citing In re Columbia/HCA Healthcare Corp. Billing Practices
Litigation, 293 F.3d 289, 304, 306-07 (6th Cir.2002); see also Foley v. Poschke, 137 Ohio
St. 593, 595 (1941) ("The general rule [is] that communications between an attorney and
his [or her] client in the presence of a third person are not privileged."). I would find the
No. 16AP-102 12

contents of exhibits 4 and 7, which were intentionally exchanged, are not privileged or
protected work product, even if the views and concepts they conveyed were also, at some
point, what Weibl communicated to her client as in-house counsel or prepared for her
client.
{¶ 23} The mere fact of an attorney's involvement is not a matter of privilege or work
product. As the Supreme Court of Ohio has explained:

Ordinarily, an attorney may properly be examined as to the
existence of the relation of attorney and client between himself
and his client, and as to the terms of that relation.4

In re Martin, 141 Ohio St. 87, 104 (1943). I find the following is persuasive:

[T]he attorney-client privilege has never been construed to
prevent the disclosure that a person retained the attorney for a
particular purpose. Diversified Industries, Inc. v. Meredith,
572 F.2d 596, 602 (8th Cir. 1977) (purpose for which law firm
retained not privileged). Accord Colton v. United States, 306
F.2d 633, 636 (2d Cir. 1962); Westhemeco Ltd v. New
Hampshire Insurance Co., 82 F.R.D. 702, 707 (S.D.N.Y. 1979);
J. Weinstein & M. Berger, Weinstein's Evidence Manual §
18.03[3][d] ("The general rule in the federal courts is that
identifying facts about the client, or the scope or objective of
the employment, are not treated as confidential
communications to which the privilege applies."). Learning
that purpose does not necessarily disclose what the client might
have told the attorney in confidence once the attorney had been
retained. By the same logic, that an agency attorney's advice
was sought as to a particular matter is not in itself privileged
even if it discloses the client's desire for that advice.

Evans v. Atwood, 177 F.R.D. 1, 4 (D.D.C.1997). The particular questions the trial court
compelled the Department to answer sought neither privileged communications nor work
product. Whether Weibl participated in meetings is a simple fact, not a confidential
communication between attorney and client. Lanham at ¶ 27. The questions did not
progress further to seek what advice Weibl gave or the work product she may have

4 I recognize, however, that Prof.Cond.R. 1.6(a) requires that, "[a] lawyer shall not reveal information relating
to the representation of a client, including information protected by the attorney-client privilege." Under this
rule, there may be a case an attorney is subpoenaed and compelled to testify on the existence of representation,
and an ethical issue may arise about whether to reveal that fact. As far as governmental department counsel
is concerned, the relationship is assumed and it is her job to represent the Department and its employees
within the scope of their work.
No. 16AP-102 13

generated. Explicit, intentional disclosures were made in the Department's letter, and
whether Weibl participated in the drafting of the letter is within the bounds of discovery.
See also Falcone v. Internal Revenue Serv., 479 F.Supp. 985, 990 (E.D.Mich.1979) (holding
that "it is clear that the purpose of the privilege is not to protect communications which are
statements of policy and interpretations adopted by the agency").
{¶ 24} I would find the questions concerned the mere identities of the persons who
authored or saw documents which (by virtue of having been intentionally shared) were not
work product or privileged, but were tantamount to a statement of policy by the
Department. Such questions seek unprotected facts and do not by their answers extract
confidential communications or impermissible insight into litigation strategy. I do not view
as error the trial court's decision and order compelling answers to these questions.
Accordingly, I would affirm the trial court in its decision and order concerning Weibl's
testimony.
{¶ 25} As explained in their separate opinions, Judges Dorrian and Luper Schuster
conclude that the trial court erred by granting the motion to compel with respect to the
questions asked of Weibl at her March 17, 2008 deposition. Those opinions constitute a
majority to sustain the Department's second assignment of error as it relates to that issue.
Accordingly, the trial court's decision and order on the same is reversed. Based on the
reasoning set forth above, however, I respectfully dissent from the opinion of the majority
concerning Weibl's deposition.
5. Questions Asked During March 20, 2008 Evers Deposition
{¶ 26} Julie Evers testified as the Assistant Bureau Chief for Long Term Care
Facilities in the Office of Ohio Health Plans; as such, she was an employee of the
Department and subordinate to Department witness Harry Saxe. (Mar. 20, 2008 Evers
Dep. at 6; Saxe Dep. at 6.) The members of this panel reach different conclusions as to two
aspects of the objections to questions posed to Evers. Therefore, each aspect will be
addressed in turn.
{¶ 27} First, as in Weibl's deposition, counsel for the Nursing Home Group, Geoffrey
Webster, asked Evers a series of questions related to ODJFS' response (Nursing Homes
Group's Ex. 7) to a request for a rate adjustment (Nursing Homes Group's Ex. 4). See Exs. 4,
No. 16AP-102 14

7, Mot. for Partial Summ. Jgmt. Counsel for the Department, Thomas, objected and
instructed the witness as follows:5

[BY MR. WEBSTER:]

Q. And did you author any part of Exhibit 7, the Department's
response, which I believe is in front of you there?

A. Yes.

Q. Which parts did you author? Would you look at that for me,
please?

MS. THOMAS: Objection. Instruct the witness not to answer
about which parts any particular people had a part in authoring
because it's already disclosed that counsel was involved.

MR. WEBSTER: So you are instructing her not to answer the
question? Do I understand that correctly?

MS. THOMAS: I'm not sure I remember the question exactly,
but I'm instructing the witness not to answer in terms of the
content of contributions by various people as individuals, yes.

MR. WEBSTER: I think that would be the question.

Ms. THOMAS: Okay.

THE WITNESS: I am not -- I am unable to answer for the
reasons so stated.

MR. WEBSTER: Certify the question.

BY MR. WEBSTER:

Q. Let me ask you this: Do you have -- you seem to have some
memory before your counsel instructed you, so it would not be
futile to ask a court to consider whether that instruction was
appropriate; you would be able to make a response if required
to; would you not?

A. I would not be able to tell you which portion I drafted and
which portions others drafted.

5 Although the Nursing Home Group alleged additional improper objections by Thomas in combined motions

to compel and for sanctions, I address only those instances in which the witness was instructed not to answer
and did not answer.
No. 16AP-102 15

Q. You cannot, you said?

A. I could not. It would have been a collaborative approach and
not --

Q. Some of which was counsel and some was not and you can't
tell which?

A. Yes.

Q. On whose computer was this document drafted?

A. I believe I developed an initial draft. However, multiple
versions would have -- we would have -- it would have been
circulated for comments.

Q. Did you save the versions of the document that went through
draft on your system?

A. Quite likely not.

Q. Why not?

A. Because to the extent I was editing a draft I did, I would have
written over the previous draft.

Q. So is the version of this letter, Exhibit 7, as it appears as
Exhibit 7, is that in your system?

MS. THOMAS: Objection. I would instruct the witness not to
answer the question.

(Evers Dep. at 11-13.)
{¶ 28} The document that was the subject of this series of questions is the same
document at issue between counsel during Weibl's deposition. Both Weibl and Evers did
not answer questions about this document for primarily the same reasons.
{¶ 29} Materials freely and intentionally exchanged are not protected work product
or confidential attorney-client communications. See R.C. 2317.02; Foley at 595;
Komorowski at ¶ 24; Fed.R.Evid. 502(b). And the questions asked were not even about the
content of a document but rather about the identities of people who authored or
participated in creating the document and where prior drafts may be located. Similarly and
for reasons already discussed, even the fact that counsel may have participated in authoring
part of a document intentionally disclosed, I would find it is not a communication protected
No. 16AP-102 16

by attorney-client privilege or the work product doctrine for the purposes of learning who
prepared the document. Therefore, I would find the trial court did not err in compelling
Evers to answer the deposition questions.
{¶ 30} As explained in their separate opinions, Judges Dorrian and Luper Schuster
would find to be moot the trial court's holding concerning Evers' deposition testimony as it
relates to the questions regarding which portions of exhibit 7 Evers and her colleagues
authored. Those opinions constitute a majority to overrule as moot the Department's
second assignment of error as it relates to these questions. Accordingly, the trial court's
decision and order on the same is affirmed. Based on the reasoning set forth above,
however, I respectfully concur in judgment only with the opinion of the majority concerning
this portion of Evers' deposition.
{¶ 31} Second, questioning and objections also occurred on another subject in
Evers' deposition:

THE WITNESS: I personally did not talk to anyone at the
Department of Workers' Compensation.

BY MR. WEBSTER:

Q. * * * Do you know anybody who did of the group you have
identified: Mr. Saxe, Mr. Blair?

MS. THOMAS: Objection. If this would require you to disclose
any attorney-client privileged communications or any
information developed or obtained in anticipation of or
because of litigation, then I would instruct you not to answer.

THE WITNESS: I'm not answering for the reasons --

MR. WEBSTER: Okay.

THE WITNESS: -- so mentioned.

(Evers Dep. at 17.) The question objected to in this exchange plainly asked whether Saxe or
Blair communicated with the BWC. Nothing in the question compromises a confidential
attorney-client communication, and it is hard to fathom how it would elicit prohibited work
product. The Department now argues that the question was overbroad because it did not
include a specific limitation as to timing, but an objection on that basis was not argued or
even preserved before the trial court, even if it made sense. (Department's Brief at 40.)
No. 16AP-102 17

This is because the question was limited in scope to "consult[ations] at any time with
individuals or documents from the Bureau of Workers' Compensation at the time this [the
response to the rate adjustment request] was being considered." (Evers Dep. at 15.)
{¶ 32} The questions posed in Evers' deposition did not involve privileged
communications or information protected by the work product doctrine, and the objections
were improper. The trial court did not err in compelling answers to these questions.
{¶ 33} All three judges of the panel concur in their review of the trial court's holding
concerning Evers' deposition testimony outlined immediately above and join as a majority
to overrule the Department's second assignment of error as it relates to questions of Evers
regarding if she, Saxe, or Frank Blair talked to BWC.
{¶ 34} Accordingly, as explained above, the trial court's decision and order
concerning the testimony of Evers is affirmed.
6. Questions Asked During March 20, 2008 Valentino Deposition
{¶ 35} Tracy Valentino testified as the Chief Fiscal and Planning Officer of the BWC.
(Mar. 20, 2008 Valentino Dep. at 7.) At no time was she employed by ODJFS or the
Department. Id. at 19. She was not represented by counsel for ODJFS, Thomas. She was
represented by another attorney from the Ohio Attorney General's office. Id. at 2, 19.
During her deposition the following exchange took place:

[BY MR. WEBSTER:]

Q. Had you had conversation with Ms. Thomas prior to
receiving the e-mail from her with the attachment, Exhibit 2?

A. Yes.

Q. * * * And what was that conversation?

MS. THOMAS: Objection. I am going to object on the basis of
the work product doctrine and I will instruct the witness not to
answer as to the content of my communication with her.

Id. at 18.
{¶ 36} The Department argues that the questions asked of Valentino were aimed at
discovering Thomas's legal advice to Valentino or Thomas's legal strategy, thoughts, and
impressions on the case. (Department's Brief at 44-48.) But Thomas did not represent
Valentino. To the extent that discussion between Thomas and Valentino may have included
No. 16AP-102 18

information about Thomas's litigation strategy or material Thomas compiled in
preparation for the deposition, it might have been shielded by the work product doctrine.
Work product protection, if it exists, is not automatically waived by the disclosure of
Thomas to Valentino because "disclosure to a person with an interest common to that of
the attorney or the client normally is not inconsistent with an intent to invoke the work
product doctrine's protection and would not amount to such a waiver." (Internal quotation
marks omitted.) Komorowski at ¶ 24, quoting In re Sunrise Sec. Litigation., 130 F.R.D.
560, 564 (E.D.Pa.1989); In re Doe, 662 F.2d 1073, 1081 (4th Cir.1981). However, "[t]he
burden of proof rests with the party asserting the existence of privilege." Shaffer v.
OhioHealth Corp., 10th Dist. No. 03AP-102, 2004-Ohio-63, ¶ 8. I would find that the
Department made no attempt to set forth in a privilege log or other suitable sealed proffer
what the witness would have said in order to establish before the trial court that the
question would have elicited a response that was protected by the work product doctrine.
Under these circumstances, I would find that the trial court, therefore, did not err in
compelling an answer to this question and would overrule the Department's second
assignment of error as to the March 20, 2008 Valentino deposition and affirm the trial
court.
{¶ 37} As explained in their separate opinions, Judges Dorrian and Luper Schuster
conclude that the trial court erred by granting the motion to compel with respect to the
questions asked of Valentino at her March 20, 2008 deposition. Those opinions constitute
a majority to sustain the Department's second assignment of error as to that issue.
Accordingly, the trial court's decision and order on the same is reversed. Based on the
reasoning set forth above, I respectfully dissent from the opinion of the majority concerning
Valentino's deposition.
7. Questions Asked During March 20, 2008 Saxe Deposition
{¶ 38} Harry Saxe testified as the Bureau Chief in Long Term Care on behalf of the
Department. (Mar. 20, 2008 Saxe Dep. at 6.) Counsel for the Nursing Home Group,
Webster, asked Saxe a series of questions related to ODJFS' response letter (Nursing
Homes Group's Exhibit 7) to the Nursing Home Group's request for a rate adjustment. See
Exs. 4, 7, Mot. for Partial Summ. Jgmt. Counsel for the Department, Thomas, objected and
instructed the witness to limit his answers:
No. 16AP-102 19

[BY MR. WEBSTER:]

Q. Did you author Exhibit 7?

A. I am sure I edited it and reviewed it. I won't claim to be the
sole author.

Q. * * * Who do you know to have had input into the words that
are presented on Exhibit 7?

MS. THOMAS: Objection. To the extent that this requires you
to divulge attorney-client privileged communications or
attorney work product, I will instruct you not to answer. You
may answer any other parts.

THE WITNESS: I would say, as I said earlier, that Julie Evers
worked with me on it and, beyond that, I mean, I don't recall
exactly who was engaged in editing, reviewing and -- to create
the letter.

BY MR. WEBSTER:

Q. And has any portion of your response been constrained by
the instruction of counsel?

A. Yes.

(Saxe Dep. at 11.)

[BY MR. WEBSTER:]

Q. Would you look at Exhibit 7, please.

A. Okay.

Q. Did you compose the second paragraph of Page 1 of that
letter?

A. Again, I don't recall that I did or didn't, to be honest with
you.

Q. Of this document, what do you recall authoring?

MS. THOMAS: Objection. If this would require you to give any
information that leads to knowledge of attorney-client
privileged communications, then I would instruct you not to
answer.
No. 16AP-102 20

THE WITNESS: Would you repeat the question again for me,
please?

MR. WEBSTER: Sure.

I'll ask you to read it back.

(Question read.)

THE WITNESS: As I think I indicated earlier, the document
was -- I edited it, I'm certain of that. I will do that before
signing. And beyond that, I indicated that Julie Evers had
worked on it and I think -- I can't -- again, not -- not knowing
what happened -- you know, recalling what happened exactly
on August 25th, 2003, and prior to that as we reviewed I this, I
can't identify every person who may have looked at this
document at that point in time before I signed it.

BY MR. WEBSTER:

Q. Was your answer in any way limited by the instruction of
your counsel?

A. Yes.

Id. at 27-28.

[BY MR. WEBSTER:]

Q. * * * Did you write that or did someone else write that
paragraph?

MS. THOMAS: Objection.

THE WITNESS: Again --

MS. THOMAS: If this would require you to disclose the content
of any attorney-client privileged information or work product,
I would instruct you not to answer.

THE WITNESS: Again, I would say, as I said earlier, I don't --
I don't know -- recall exactly who wrote what part of this letter.
That would be what I would indicate on this.

BY MR. WEBSTER:

Q. So, again, was your answer limited by the instruction of your
counsel?
No. 16AP-102 21

A. Yes.

Id. at 31-32.
{¶ 39} I would find that the work product doctrine does not protect the Department
from having Saxe answer the Nursing Home Group's questions at Saxe's March 20, 2008
deposition. Exhibit 7, was voluntarily and intentionally shared between the parties. I
would find its content was not protected by work product or a privileged attorney-client
communication. See R.C. 2317.02; Foley at 595; Komorowski at ¶ 24; Fed.R.Evid. 502(b).
And the Nursing Home Group's questions about this letter were not about its contents but
rather who authored or participated in creating it and the extent of Saxe's participation. As
previously noted, even if an attorney had been involved in drafting exhibit 7, no privilege or
doctrine shields from discovery the simple fact that an attorney was consulted in drafting a
document which is not, itself, protected by privilege or the work product doctrine.
{¶ 40} Further, an exchange took place later in the deposition that renders Thomas's
objections harmless. This exchange clarifies that Saxe's answers to Webster's questions
were actually complete and not limited:

MR. WEBSTER: I'll certify the questions he did not answer and
we will continue the deposition until we submit to the court for
a ruling on those.

Thank you, Mr. Saxe.

MS. THOMAS: Could I say something on the record, please?
I'm not sure that the witness understood your question when
you asked if the answers were limited. I'm not sure if the
answers were different than they would have otherwise been
based on my instruction versus just knowing that there was a
limit put out there by me, an in case the former is the case, we
could avoid the second deposition. Maybe you could ask the
question again. That would be my suggestion.

MR. WEBSTER: I choose not to.

MS. THOMAS: Okay. I wanted to suggest it on the record.
Thank you.

MR. WEBSTER: I don't think he misunderstood the questions.
Mr. Saxe is quite experienced both at being deposed, and being
deposed by myself as well, and I think he knows quite well that,
No. 16AP-102 22

if he doesn't understand something, that in my experience with
him, he sure as heck won't answer it.

MS. THOMAS: My point was: He might have thought he
understood you and did not; not that he would have known he
misunderstood you. But that is your choice. I just wanted to
raise it in a time-saving effort.

MR. WEBSTER: I'll ask him since you have prompted him well
enough.

BY MR. WEBSTER:

Q. Was there something about the questions posed to you, Mr.
Saxe, that you did not understand, as opposed to your counsel
perhaps not understanding?

A. Well, let me clarify, if I could, if that's appropriate.

Q. That might be helpful since you have been coached to clarify.

A. No. I was thinking about that, to be honest with you, as I was
answering the question.

Q. Uh-huh.

A. I would not answer the questions significantly different than
I have said to you; that -- that I don't recall who all was involved
in this drafting of the letter for the past -- since it is, again, a
five-year-old issue, but I also am cognizant of the fact that there
are limits to which I could go as a result of, you know, the -- the
warning from counsel; but substantively, it is the same; my
answer is going to be the same regardless of that admonition.

Q. Well, then, let me ask you directly: Was your counsel
involved in drafting this letter?

A. I honestly don't recall. I would -- I would indicate to you that
there's a -- there's a likelihood that there was some involvement
but I don't honestly recall what happened, who contributed to
the drafting of this letter five years ago.

MR. WEBSTER: Okay. Thank you.

Id. at 33-35. Under any circumstance, Saxe can only be compelled to testify to what he
remembers. He could not remember who drafted which part of exhibit 7. I would find the
trial court correctly concluded that the objections to these questions were not appropriate.
No. 16AP-102 23

However, I would also find the trial court erred in not considering that the witness clarified
that Thomas's objection had no effect on his testimony, rendering the inappropriate
objection harmless.
{¶ 41} As explained in their separate opinions, Judges Dorrian and Luper Schuster
would find to be moot the Department's second assignment of error as it relates to the
deposition testimony of Saxe. Those opinions constitute a majority to overrule as moot the
Department's second assignment of error as it relates to that issue. Accordingly, the trial
court's order and decision as to the same is affirmed. Based on the reasoning set forth
above, however, I respectfully concur in judgment only with the opinion of the majority
concerning Saxe's deposition.
8. Questions Asked During March 21, 2008 Jones Deposition
{¶ 42} Kevin Jones testified that he was an employee of ODJFS during the relevant
time period. (Mar. 21, 2008 Jones Dep. at 5.) He was responsible for supervising staff who
addressed reimbursement rate change requests. Id. at 8-9. The members of this panel
reach different conclusions as to two aspects of the objections to questions posed to Jones.
Therefore, each aspect will be addressed in turn.
{¶ 43} First, counsel for the Nursing Home Group, Webster, asked a series of
questions to which counsel for the Department, Thomas, objected and instructed Jones not
to answer.

[BY MR. WEBSTER:]

Q. * * * Have you had any involvement with the government
mandate requests at issue in this action subsequent to their
filing and your conversation with Mr. Blair in mid-2003?

MS. THOMAS: Objection to the extent that this -- that
answering that question would divulge attorney-client
communication or information obtained or produced in
anticipation of or because of litigation. Then, to that extent, I
instruct you not to answer. Otherwise, you will answer.

THE WITNESS: Based on my attorney's advice, then I decline
to answer.

Id. at 14.
{¶ 44} The Department argues that because the Nursing Home Group filed suit soon
after the decision was made on the rate request, "Mr. Jones' role–or even lack of role–would
No. 16AP-102 24

be information about how the Department prepared for, handled, or evaluated this case,"
and thus, work product. (Department's Brief at 42.) It is possible that Jones's answer might
have included discussions with counsel or other protected activity, but it is also perfectly
possible that Jones's answer might have included no such information.
{¶ 45} "The burden of proof rests with the party asserting the existence of privilege."
Shaffer at ¶ 8. The Department did not meet such burden. Therefore, the trial court did
not err in compelling an answer to this question.
{¶ 46} All three judges of the panel join as a majority to overrule the Department's
second assignment of error as it relates to the above questions asked of Jones at his
March 21, 2008 deposition. Accordingly, we affirm the trial court's decision and order on
the same.
{¶ 47} Second, another exchange with Jones occurred in this deposition:

[BY MR. WEBSTER:]

Q. You have been identified as a witness to testify in this action.
Were you aware of that?

MS. THOMAS: Objection.

THE WITNESS: Yes.

BY MR. WEBSTER:

Q. And what is the subject upon which you are going to provide
testimony?

MS. THOMAS: Objection. To the best of my recollection, he is
not listed as a witness for trial in our initial witness list
submitted in December. And if I'm right about that, then I
would instruct the witness not to answer.

MR. WEBSTER: Well, before you instruct him not to answer
and we end up in some big hassle that perhaps we don't need
to, let's take a look at -- in response to Interrogatory Number 5,
state the names of all witnesses you intend to call, Mr. Jones'
name is listed.

MS. THOMAS: Aren't those discovery responses that we
provided in 2005, that have since been superseded by a witness
list we submitted in December?
No. 16AP-102 25

MR. WEBSTER: You identified him as a witness. He just said
he understood he was going to be a witness.

MS. THOMAS: I believe -- I believe, at least I understood he
had been named as a witness. I don't believe he answered he
understood he would be a witness.

MR. WEBSTER: Would you read his response back?

(Testimony read.)

BY MR. WEBSTER:

Q. * * * What is the subject upon which you expect to provide
testimony?

MS. THOMAS: Objection.

Could we have a quick break, please?

MR. WEBSTER: No. After he answers the question, but not
until then.

MS. THOMAS: Okay. We do not intend to call Mr. Jones as a
witness at trial in this matter at this time. So I'd instruct the
witness not to answer the question.

MR. WEBSTER: Certify the question.

We will continue the deposition, then, after we file the motion
to compel with respect to same.

Thank you, Mr. Jones. We will be seeing you again.

THE WITNESS: All right.

(Jones Dep. at 14-16.)
{¶ 48} I would find whether or not Jones was to be a witness at trial, Civ.R. 30(A)
permits him to be deposed on questions within the scope of discovery. Even if the
Department was attempting to assert some form of privilege in instructing the witness not
to answer, the record does not reveal a cognizable basis for instructing Jones not to answer
this question. In the absence of a legitimate reason to instruct the witness not to answer,
the Nursing Home Group was entitled to a response.
{¶ 49} As explained in their separate opinions, Judges Dorrian and Luper Schuster
find the trial court's order as it relates to the deposition testimony of Jones, regarding
No. 16AP-102 26

whether he would be a witness and his testimony if he were to be, not final and appealable.
Accordingly, the second assignment of error as to this issue is dismissed as not final and
appealable. Based on the reasoning set forth above, however, I respectfully dissent from
the opinion of the majority concerning this portion of Jones's deposition.
{¶ 50} Accordingly, as explained above, the trial court's decision and order
concerning the testimony of Jones is affirmed in part, and the second assignment of error
as to Jones' deposition is dismissed in part.
B. First Assignment of Error—Whether the Trial Court Erred in Granting
the Motions Because the Material Sought by the Questions was
Irrelevant to the Issues in the Case
{¶ 51} According to its first assignment of error, the Department argues that the trial
court erred in compelling answers to the discovery questions because the questions sought
information about material that is not relevant to the relief sought by the Nursing Home
Group. (Department's Brief at 17-21.)
{¶ 52} However, I would find the Department's basis for objection before the trial
court was not relevance but privilege and work product. Therefore, I would find that the
appellate court has jurisdiction. In doing so, I would hold that the Department has waived
this assignment of error. I further note that, even without waiver, it is the Department's
burden to establish a basis for refusal to answer on grounds of relevance. Frash v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 14AP-932, 2016-Ohio-360, ¶ 28, quoting Union
Sav. Bank v. Schaefer, 10th Dist. No. 13AP-222, 2013-Ohio-5704, ¶ 46 (" 'The party
resisting discovery bears the burden of demonstrating to the trial court that the requested
information would not meet th[e] standard [of relevance set forth in Ohio Rule of Civil
Procedure 26(B)(1)].' "). (Emphasis sic.) I would point out that at no time did the
Department submit a privilege log, sealed proffer, or other appropriate materials to the trial
court to demonstrate entitlement to protection from discovery for relevancy under
Civ.R. 26.
{¶ 53} As explained in their separate opinions, Judges Dorrian and Luper Schuster
find the first assignment of error to be not final and appealable. Accordingly, the first
assignment of error is dismissed as not final and appealable. Based on the reasoning set
forth above, however, I respectfully dissent from the opinion of the majority regarding the
first assignment of error.
No. 16AP-102 27

IV. CONCLUSION

{¶ 54} The Department's first assignment of error is dismissed as not final and
appealable, with Judge Brunner dissenting. The Department's second assignment of error
is dismissed in part, sustained in part, and overruled in part as follows:

 Martin deposition – overruled in its entirety, all panel
members concurring,

 Weibl deposition – sustained in its entirety, Judge
Brunner dissenting,

 Evers deposition – overruled as moot in part, Judge
Brunner concurring in judgment only; overruled in part, all
panel members concurring,

 Valentino deposition – sustained in its entirety, Judge
Brunner dissenting,

 Saxe deposition – overruled as moot, Judge Brunner
concurring in judgment only,

 Jones deposition – overruled in part, all panel members
concurring; dismissed in part as not final and appealable,
Judge Brunner dissenting.

{¶ 55} Accordingly, the first assignment of error and the second assignment of error
as to Jones in part are dismissed. The decision and order of the trial court is affirmed in
part on the basis of our overruling various parts of the Department's second assignment of
error as set forth herein, and the trial court's decision and order is reversed in part on the
basis of our sustaining various parts of the Department's second assignment of error as set
forth above.
Judgment affirmed in part and reversed in part.

BRUNNER, J., writing the lead opinion and concurs in part and dissents in part.
DORRIAN, J., concurs in part with lead opinion, writes for the majority in part.
LUPER SCHUSTER, J., concurs in part with the lead opinion and concurs in part with
DORRIAN, J., partial majority opinion.
No. 16AP-102 28

DORRIAN, J., concurring in part with the lead opinion, and writing for the majority in part.
{¶ 56} I concur with the majority and the lead opinion and would overrule the
second assignment of error as to the following:

 The deposition testimony of Patricia Martin

 The deposition testimony of Julie Evers regarding if she,
Harry Saxe, and Frank Blair talked to BWC

 The deposition testimony of Kevin Jones, at 14,
regarding his answer to the question "Have you had any
involvement with the government mandate requests at issue in
this action subsequent to their filing and your conversation
with Mr. Blair in mid-2003?"

Therefore, as set forth in the conclusion of the lead opinion, the second assignment of error
as to the above is overruled.
{¶ 57} Because the questions were ultimately answered, we find to be moot and
decline to address the second assignment of error as to the following:
 The deposition testimony of Julie Evers regarding which
portions of Exhibit 7 she authored

 The deposition testimony of Harry Saxe

Therefore, as set forth in the conclusion of the lead opinion, the second assignment of error
as to the above is overruled as moot.
{¶ 58} Because the Department did not assert a privilege which would make the trial
court's holding on such objection to be final and appealable, we find to be not final and
appealable the second assignment of error as to the following:
 The deposition testimony of Kevin Jones regarding
whether Jones would be a witness and what his witness
testimony would be

 The first assignment of error

Therefore, as set forth in the conclusion of the lead opinion, the second assignment of error
as to the above is dismissed as not final and appealable.
{¶ 59} We sustain the second assignment of error as to the following:
 The deposition testimony of Lynne Weibl
No. 16AP-102 29

 The deposition testimony of Tracy Valentino

{¶ 60} As to Weibl's deposition testimony, the attorney-client privilege and/or the
work-product privilege applied. The Supreme Court of Ohio has held:

Simply stated, an attorney does not become any less of an
attorney by virtue of state agency employment. That is so even
if the attorney's position includes performance of nonlegal or
so-called ministerial duties. The privilege applies when legal
advice of any kind is sought from the legal advisor in that
capacity and the client's confidential communication relates to
that purpose.

Therefore, in Ohio, the attorney-client privilege extends to
government agencies consulting with in-house counsel for legal
advice or assistance.

State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 29-
30.
{¶ 61} Furthermore, the Supreme Court has defined the scope of the privilege as
follows:

[T]he privilege is not narrowly confined to the repetition of
confidences that were supplied to the lawyer by the client. That
cramped view of the attorney-client privilege is at odds with the
underlying policy of encouraging open communication; it
poses inordinate practical difficulties in making surgical
separations so as not to risk revealing client confidences; and it
denies that an attorney can have any role in fact-gathering
incident to the rendition of legal advice and services. The
attorney-client privilege does not require that the
communication contain purely legal advice, but if a
communication between a lawyer and client would facilitate
the rendition of legal services or advice, the communication is
privileged.

In particular, in Toledo Blade, we held that an attorney's factual
investigation, if incident to or related to any legal advice that
the attorney would give on a particular issue, is covered by the
privilege.

(Quotations and citations omitted.) State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191,
2013-Ohio-199, ¶ 29-30.
No. 16AP-102 30

{¶ 62} The trial court erred in compelling Weibl to answer the deposition questions
as the answers were covered by attorney-client privilege and/or work-product privilege.
Therefore, as set forth in the conclusion of the lead opinion, the second assignment of error
as to the deposition of Weibl is sustained and the trial court's judgment regarding the same
is reversed.
{¶ 63} As to Valentino's deposition testimony, the work-product privilege applied.
Therefore, the trial court erred in compelling Valentino to answer the deposition questions
as the answers were covered by the work-product privilege. Therefore, as set forth in the
conclusion of the lead opinion, the second assignment of error as to the deposition of
Valentino is sustained and the trial court's judgment regarding the same is reversed.

LUPER SCHUSTER, J., concurs as to ¶ 57 through ¶ 63.
BRUNNER, J., concurs in judgment only as to ¶ 57, and
dissents as to ¶ 58 through ¶ 63.

LUPER SCHUSTER, J., concurring in part with the lead opinion and concurring in part
with Judge Dorrian's partial majority opinion.

{¶ 64} I concur with the lead opinion and would overrule the second assignment of
error as to the following:

 The deposition testimony of Patricia Martin

 The deposition testimony of Julie Evers regarding if she,
Harry Saxe, and Frank Blair talked to BWC

 The deposition testimony of Kevin Jones regarding his
answer to the question "Have you had any involvement with
the government mandate requests at issue in this action
subsequent to their filing and your conversation with Mr. Blair
in mid-2003?" (Jones Dep. at 14.)

{¶ 65} I concur with the partial majority opinion of Judge Dorrian as to the
remaining issues.