Blue Technologies Smart Solutions, L.L.C. v. Ohio Collaborative Learning Solutions, Inc.

[Cite as Blue Technologies Smart Solutions, L.L.C. v. Ohio Collaborative Learning Solutions, Inc., 2022-Ohio-
1935.]
COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

BLUE TECHNOLOGIES SMART :
SOLUTIONS, LLC, ET AL.,

Plaintiffs-Appellants, :
No. 110501
v. :

OHIO COLLABORATIVE LEARNING :
SOLUTIONS, INC., ET AL.,

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: June 9, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CV-18-902719 and CV-20-933999

Appearances:

Reminger Co., L.P.A., and Eric J. Weiss; Climaco Wilcox
Peca & Garofoli and Scott Simpkins, for appellants.

Schneider Smeltz Spieth Bell LLP, Mark M. Mikhaiel, and
Aanchal Sharma, for appellees.

EMANUELLA D. GROVES, J.:

Appellants, Blue Technologies Smart Solutions, LLC (“BTSS”), Blue

Technologies, Inc. (“BT”), and Paul Hanna, bring this interlocutory appeal
challenging three of the trial court’s discovery rulings. Appellants claim the trial

court’s order requiring them to respond to the discovery requests of appellees, Ohio

Collaborative Learning Solutions, Inc. (“OCLS”) and Anand Julka (“Julka”),

requires the disclosure of material protected by the work-product doctrine and

requires the disclosure of confidential tax returns. For the reasons that follow, we

dismiss the appeal for lack of a final, appealable order.

I. Facts and Procedural History

The present appeal involves two consolidated cases that resulted from

a commercial transaction, most of the details of which are not pertinent to the

present appeal. The transaction involved the sale of business assets and

collaborative agreements where the parties agreed to work together in various ways

in the information technology and procurement fields. The various filings in these

cases indicate that an asset purchase agreement, employment agreement, and

support agreement were executed in 2013. In 2015, an amended support agreement

was executed. By 2018, the business relationships established by these contracts was

severely strained. As a result, appellants filed suit against appellees in that year.1

In Cuyahoga C.P. No. CV-18-902719, appellants brought claims against

appellees and other parties for breach of the various contracts that were executed as

part of the above business deal. According to the amended complaint, OCLS and

other related parties breached the noncompetition clause of the asset purchase

1 The litigation also included other parties who are not relevant to the present
appeal.
agreement and the service agreement, breached the service agreement, and

misappropriated unidentified trade secrets. After OCLS and other defendants filed

an answer and counterclaim, the case proceeded according to the discovery schedule

established by the trial court.

Several issues arose during the proceedings that interrupted the normal

course of litigation. These include the recusal of the trial judge and an appeal of the

denial of a motion to compel arbitration. In 2020, after the case was remanded from

this court, discovery continued.

In Cuyahoga C.P. No. CV-20-933999, appellees brought suit against

appellants. They alleged appellants intentionally damaged OCLS’s business. The

complaint includes claims for breach of contract for each of the above agreements,

as well as claims of misrepresentation, negligent misrepresentation, tortious

interference with contractual and business relations, unfair competition,

conversion, securities fraud, unjust enrichment, declaratory judgment, breach of

fiduciary duty, fraudulent concealment, misappropriation of trade secrets, civil

conspiracy, breach of a duty of loyalty, and sought an accounting and to pierce the

corporate veil. Appellants answered and filed a counterclaim.

On July 30, 2020, the two cases were consolidated. The parties had

significant discovery-related disputes that eventually required the intervention of

the trial court. For a time, discovery was stayed while the court considered and ruled

on appellees’ motion to dismiss appellants’ counterclaim. Discovery resumed on
December 17, 2020. On January 19, 2021, the court issued rulings on several

discovery motions and ordered:

The parties are ordered to confer to determine which of the documents
requested are relevant to the issues pending in this case. The parties are
further ordered to confer on which of the relevant documents are
confidential. If there is a disagreement on the relevancy and
confidentiality of the requested documents, then the parties may seek
the court’s intervention via an updated motion.

On March 19, 2021, appellees filed a motion to compel appellants to

respond to certain discovery requests. In the motion, appellees asserted that

appellants improperly denied discovery requests, refused to answer proper

interrogatories, and withheld documents and other materials for improper reasons.

Appellees also alleged that appellants did not produce any privilege log or other

method of demonstrating what was being withheld from discovery and for what

reason. Appellants opposed the motion, in part, on attorney work-product grounds.

However, they did not produce a privilege log or otherwise describe documents or

evidence withheld based on any claimed privilege. Appellants also sought a

protective order by motion, filed January 22, 2021, relative to a subpoena duces

tecum served on a bank where BLSS and BT purportedly had accounts.

A hearing was conducted on these two motions on April 28, 2021, and

a transcript of this hearing was provided to the court.2 The trial court heard lengthy

discussions and arguments about several issues in the motion to compel and motion

2Appellees have alleged that a hearing took place over two days, but the transcript
submitted in the record only encompasses a single day on April 28, 2021.
for protective order. However, the parties did not discuss all the issues raised in the

motion to compel and for protective order. The parties, although given the chance

to discuss other issues, failed to argue in any detail the work-product issue or the

disclosure of tax returns. Appellants also did not request or provide documents for

an in camera inspection so the court would have all the information before it in order

to make a more informed decision.

The trial court granted appellants’ motion for a protective order on

April 29, 2021. On May 7, 2021, the court issued an order granting in part and

denying in part appellees’ motion to compel. The court ruled,

As to first interrogatory request no. 11 to BT; int. no. 12 to BTSS; int no.
13 to Hanna, the motion is granted and defendants are ordered to
comply with the requests.

As to first interrogatory request no. 14 to BTSS; int. no. 13 to BT, the
motion is denied.

As to document request no. 1 to all defendants, the defendants are
ordered to amend their response to the request.

As to document request no. 6 to all defendants, the motion is denied.
Plaintiffs are free to rewrite this discovery request with specificity as to
whom they are seeking the information from and what information
they are seeking.

As to document request nos. 14-17, 22-23 to all defendants; [request
for production of document (“RPD”)] nos. 19-21, 44-45, 81 to BTSS;
RPD nos. 21-23, 26, 28, 47-48, 85 to BT; RPD nos. 19-21, 24, 26, 45, 82
to Hanna, the motion is partially granted. Defendants are ordered to
produce tax returns from the years 2013-2020.

As to document request nos. 11, 24 & 26 to all defendants; RPD nos. 32-
33, 35 to BTSS; RPD nos. 35 & 39 to Hanna; RPD no. 37 to BT, the
motion is granted and defendants are ordered to comply with the
requests.
 As to document request nos. 74 & 78 to BTSS; no. 75 to Hanna, the
motion is denied.

As to document request no. 79 to BTSS; no. 83 to BT; no. 80 to Hannah,
the motion is denied.

As to second set of interrogatory request nos. 8-143 to BT and BTSS;
int nos. 11-14 to Hanna, the motion is granted and defendants are
ordered to comply with the request. As to second set of document
request nos. 1 and 5 to all defendants, the motion is granted and
defendants are ordered to comply with the request.

As to second set of document request nos. 1 and 5 to all defendants, the
motion is granted and defendants are ordered to comply with the
request.

As to second set of document request nos. 6-634 to all defendants, the
motion is granted and the defendants are ordered to comply with the
request.

As to the award of reasonable attorneys’ fees, the motion is denied.

Defendants shall forward discovery responses to plaintiffs by
05/21/2021.

(Emphasis added.) (A notice of appeal followed on May 14, 2021.)

3 These requests seek information related to appellants’ affirmative defenses.
Request 8 is illustrative of these requests and states, “With respect to affirmative defense
no. 8 of Your Answer, which provides, ‘Plaintiffs’ claims are barred by the economic loss
doctrine,’ please identify, describe and/or set forth all evidence in support of this
affirmative defense.”

4 Request 6 is illustrative of these requests for specific paragraphs of the answer
and counterclaim and states, “Produce all documents that are [sic] identify, describe, refer
to, relate, pertain to, or evidence your response in Paragraph 60 of your Answer to the
Complaint.”
 Of these rulings, BTSS takes issue only with those that are italicized in

the quoted section above. These rulings fall into two categories, which appellants

argue as three assignments of error:

I. The Trial Court erred when it granted the Motion to Compel and
ordered Appellants to respond to the “Second Set of Interrogatory
Request Nos. 8-14 to BT and BTSS; Int Nos. 11-14 to Hanna,” which
seek information protected by the work-product doctrine.

II. The Trial Court erred when it granted the Motion to Compel and
ordered Appellants to respond to the “Second Set of Document Request
Nos. 6-63 to All Defendants,” which seek information protected by the
work-product doctrine.

III. The Trial Court erred when it granted the Motion to Compel and
ordered each Appellant to produce their respective tax returns for the
years 2013 to 2020.

II. Law and Analysis

A. Jurisdiction – Final, Appealable Order

Appellees raise a jurisdictional question that has been briefed by the

parties in their respective appellate briefs, which we must address before reviewing

appellants’ assignments of error. Appellees argues that this court lacks jurisdiction

to entertain the present appeal because the trial court’s order is not appealable

pursuant to R.C. 2505.02.

Appellate courts are courts of limited jurisdiction confined to

reviewing only final orders of inferior courts. See Ohio Constitution, Article IV,

Section 3(B)(2); State v. Glenn, 165 Ohio St.3d 432, 2021-Ohio-3369, 179 N.E.3d

1205, ¶ 10. R.C. 2505.02(B) statutorily defines the term “final order.” Generally,

discovery orders are considered interlocutory orders that are neither final nor
appealable. Jamestown Village Condominium Owners Assn. v. Mkt. Media

Research, 96 Ohio App.3d 678, 693, 645 N.E.2d 1265 (8th Dist.1994), citing

Kennedy v. Chalfin, 38 Ohio St.2d 85, 310 N.E.2d (1974); State ex rel. Daggett v.

Gessaman, 34 Ohio St.2d 55, 57, 295 N.E.2d 659 (1973). However, an order

granting discovery of privileged materials may be a final order. R.C. 2505.02(A)(3);

Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633. When reviewing

interlocutory orders on appeal, not all decisions contained within an order are

immediately reviewable, even if some are. Courts must engage in an analysis for

each argument raised to determine whether it is addressed to an issue that

constitutes an appealable order. Lightbody v. Rust, 137 Ohio App.3d 658, 665-666,

739 N.E.2d 840 (8th Dist.2000).

R.C. 2505.02 helps to define what constitutes a “final order.” An order

that grants or denies a provisional remedy may be a final order. R.C. 2505.02(A)(3)

defines a provisional remedy to include an ancillary proceeding to an action that

results in the “discovery of privileged matter.” In order for the grant or denial of a

provisional remedy to be immediately appealable, the order: (1) must determine the

action with respect to the provisional remedy and prevent a judgment in the action

favorable to the appealing party with respect to the provisional remedy, and (2) the

appealing party would have no “meaningful or effective remedy by an appeal

following final judgment as to all proceedings, issues, claims, and parties in the

action.” R.C. 2505.02(B)(4)(a) and 2505.02(B)(4)(b).
 Appellees first argue that the trial court’s order does not constitute a

final order because nothing in the order required the disclosure of specific

documents or evidence. For support, appellees cite to, among other things, Brahm

v. DHSC, LLC, 2016-Ohio-1207, 61 N.E.3d 726 (5th Dist.) and Ingram v. Adena

Health Sys., 144 Ohio App.3d 603, 761 N.E.2d 72 (4th Dist.2001). Both cases are

distinguishable.

In these cases, orders that required parties to produce documents for

in camera inspections were immediately appealed. An in camera inspection is not

an order that requires the disclosure of materials to another party. Therefore, orders

for an in camera inspection do not constitute final orders. Daher v. Cuyahoga

Community College Dist., 155 Ohio St.3d 271, 2018-Ohio-4462, 120 N.E.3d 830.

In Daher, the Supreme Court of Ohio held that an order that

mandated the production of grand jury transcripts for an in camera inspection was

not an order that grants or denies a provisional remedy, but “an order mandating

the production of the materials could be.” (Emphasis sic.) Id. at ¶ 16. Here, the trial

court has ordered the production of documents claimed to be confidential or

privileged. The order is not subject to further order or in camera inspection as was

the case in the authority relied on by appellees. Therefore, we reject appellees’ first

argument related to our jurisdiction to hear this appeal.

1. Work Product

Appellants claim that the trial court erred when it required them to

produce document and information that was covered by the work-product doctrine.
 “The work[-]product doctrine precludes discovery of the mental

impressions, conclusions, opinions, strategies and legal theories, both tangible and

intangible, generated or commissioned by counsel in anticipation of litigation or

preparation for trial.” DMS Constr. Ents., L.L.C. v. Homick, 8th Dist. Cuyahoga No.

109343, 2020-Ohio-4919, ¶ 29, citing Squire, Sanders & Dempsey, L.L.P., v.

Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533,

¶ 56-60.

The work-product doctrine emanates from the United States Supreme
Court decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91
L.Ed. 451 (1947). Hickman was concerned that the attorney-client
privilege was not broad enough to protect the memoranda, briefs,
notes, and other writings prepared by counsel for his or her own use
during the course of pursuing a case. Id. at 508 * * *. The court reasoned
that if such materials did not receive some protection during the
discovery phase of litigation, much of what is normally put down in
writing, such as interviews, statements, legal theories, opinions, and
mental impressions, would never be written down, ultimately causing
the interests of the client to suffer. Id. at 511 * * *. The Hickman work-
product doctrine now protects all materials prepared in anticipation of
litigation, and gives almost absolute protection to the opinions,
conclusions, judgments, and legal theories of a client’s attorney. Id. at
511 * * *; State v. Hoop, 134 Ohio App.3d 627, 642, 731 N.E.2d 1177
[(12th Dist.1999)]; Frank v. Schaefer, Inc. v. C. Garfield Mitchell
Agency, Inc., 82 Ohio App.3d 322, 329, 612 N.E.2d 442 [(2d
Dist.1992)].

Dennis v. State Farm Ins. Co., 143 Ohio App.3d 196, 200, 757 N.E.2d 849 (7th

Dist.2001). Civ.R. 26(B)(1) also prohibits the discovery of privileged documents.

However, the rule goes on to provide for the discovery of attorney work product in

certain circumstances.
 Appellants have argued, without reference to any of the materials that

would be required to be produced under the trial court’s order, that these materials

fall under the work-product doctrine and the trial court’s order is final and

appealable based on this court’s holding in Decuzzi v. Westlake, 191 Ohio App.3d

816, 2010-Ohio-6169, 947 N.E.2d 1229 (8th Dist.), and Sawyer v. Devore, 8th Dist.

Cuyahoga No. 65306, 1994 Ohio App. LEXIS 4954 (Nov. 3, 1994). Appellees counter

that appellants have failed to show that the discovery order that appellants purport

to require the disclosure of privileged material covered by the work-product doctrine

is a final order.

An order that requires the disclosure of privileged information, such

as that protected by the attorney-client privilege, is immediately appealable.

Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536.

The court reasoned “an order requiring the production of information protected by

the attorney-client privilege causes harm and prejudice that inherently cannot be

meaningfully or effectively remedied by a later appeal.” However, privilege based

on the work-product doctrine has been treated differently. Chen, 142 Ohio St.3d 411,

2015-Ohio-1480, 31 N.E.3d 633. Civ.R. 26(B)(4) specifically allows for the discovery

of materials that constitute attorney work product with a showing of good cause.

Some materials covered by the work-product doctrine are therefore readily

discoverable. As a result, there is no assumption that appeal after final judgment

does not constitutes an adequate remedy like there is with attorney-client privilege.
Burnham at ¶ 26; Glenn, 165 Ohio St.3d 432, 2021-Ohio-3369, 179 N.E.3d 1205, at

¶ 22.

Whether an order that requires the disclosure of information alleged

to be protected by the work-product doctrine constitutes a final order has received

much attention in recent years. See In re Special Grand Jury Investigation of

Medicaid Fraud & Nursing Homes, 10th Dist. Franklin No. 18AP-730, 2019-Ohio-

2532, ¶ 12-22 (summarizing development in this this area of the law). Despite the

disagreements on this issue between the justices of the Supreme Court of Ohio as

outlined in In re Special Grand Jury Investigation, for each case, the court has

relied on an application and analysis of the statutory text of R.C. 2505.02, the final

order statute. See Glenn at ¶ 10; Chen at ¶ 5.

In Glenn, the court applied the requirements found in R.C.

2505.02(B)(4) to determine whether an order that required a criminal defendant to

turn over summaries of statements of potential alibi witnesses to the prosecution as

part of reciprocal discovery under Crim.R. 16 qualified as the grant or denial of a

provisional remedy subject to immediate review. The court first examined whether

the party seeking immediate review showed that the order granted or denied a

provisional remedy, i.e., made a colorable claim that the order requires the

immediate disclosure of materials covered by the work-product doctrine. Id. at ¶ 12-

20. Next, the court looked at whether the appealed order conclusively determined

the work-product issue and prevented a favorable judgment on the issue. Id. at ¶ 21.

Finally, the court examined whether the party that sought review established that
the harm caused by the discovery order could not be effectively remedied on appeal

after final judgment. Id. at ¶ 22. The court recognized that there are instances where

the ordered disclosure of material allegedly privileged by the work-product doctrine

could constitute an appealable order under R.C. 2505.02(B)(4) and that each case

should be analyzed under the above analysis. Id. at ¶ 28.

Therefore, there is no bright-line rule that all such orders are

immediately appealable. The “burden of establishing the appellate court’s

jurisdiction over an interlocutory appeal ‘falls on the party who knocks on the

courthouse doors asking for interlocutory relief.’” Id. at ¶ 22, quoting Chen, 142 Ohio

St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 8.

This court has recently addressed whether an appeal from a similar

situation constituted a final order subject to immediate appeal. N.E. Monarch

Constr., Inc. v. Morganti Ent., 8th Dist. Cuyahoga No. 109845, 2021-Ohio-2438.

There, a party to civil litigation made a discovery request similar to those at issue

here: “‘Identify any and all evidence within your possession and/or knowledge that

supports each and every response and/or affirmative defense as contained in your

First Amended Answer and each and every allegation in your Counterclaim.’” Id. at

¶ 2. This is very similar to the second set of document requests six through 63 made

to all defendants, except that instead of one combined request, they are individual

requests for the same information from each affirmative defense and counterclaim

made in the answer and counterclaims filed by appellants. This is also similar to the

other requests, exemplified by the second set of interrogatories, request eight to BT:
“With respect to affirmative defense no. 8 of Your Answer, which provides,

‘Plaintiffs’ claims are barred by the economic loss doctrine,’ please identify, describe

and/or set forth all evidence in support of this affirmative defense.”

This court, relying in part on Decuzzi, 191 Ohio App.3d 816, 2010-

Ohio-6169, 947 N.E.2d 1229 (8th Dist.), found that the objection to the request

sufficiently raised the work-product issue and the trial court’s decision to compel

production was a final order pursuant to R.C. 2505.02(B)(4). Id. at ¶ 13. We further

held that it was error for the trial court to do so without holding a hearing or an in-

camera inspection. Id. at ¶ 14. The court did not address the jurisprudence of the

Supreme Court of Ohio outlined above.

According to the Supreme Court of Ohio, each case requires an

individualized analysis where an appellant must demonstrate that the factors of the

test for a final order regarding a provisional remedy found in R.C. 2505.02(B)(4) are

satisfied. Glenn, 165 Ohio St.3d 432, 2021-Ohio-3369, 179 N.E.3d 1205, at ¶ 28;

Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 8. Therefore, we will

apply that test to the present situation before us.

The first requirement is that appellants must demonstrate a colorable

claim that the discovery order at issue requires the production of material covered

by the work-product doctrine. Appellees claim that appellants have not made this

showing because they did not comply with the procedure in Civ.R. 26 for asserting

claims of privilege. This rule requires a party that refuses to provide discovery based

on privilege or that it constitutes trial preparation materials to do so with specificity
and to provide a privilege log or other means sufficient for an opposing party to

contest the claim. Civ.R. 26(B)(8)(a) – 26(B)(8)(b).

Appellees assert that appellants’ boilerplate objections lack any

specificity, fail to identify or describe any materials withheld, and fail to provide even

a privilege log to them or the trial court so that the issue could be fairly litigated.5

While appellees are correct, we do not conclude that the failure to produce a

privilege log should preclude a party from demonstrating that a discovery order

requires the disclosure of privileged material. Appellants assert that this court has

found the type of discovery requests at issue here call for the disclosure of attorney

work product. Sawyer, 8th Dist. Cuyahoga No. 65306, 1994 Ohio App. LEXIS 4954

(Nov. 3, 1994); Decuzzi, 191 Ohio App.3d 816, 2010-Ohio-6169, 947 N.E.2d 1229

(8th Dist.). Sawyer does not directly deal with this issue. There, this court found

the discovery requests at issue unduly burdensome and would allow a party to take

undue advantage of the other party’s efforts. Sawyer at 18-21. However, Decuzzi

and N.E. Monarch, 8th Dist. Cuyahoga No. 109845, 2021-Ohio-2438, did conclude

that the type of discovery request here sufficiently raised the work-product doctrine

to support a colorable claim that such discovery requests could require the

5 A representative objection raised by appellants to appellees’ discovery requests
regarding affirmative defenses states, “Defendants object to this interrogatory on the
grounds that it is vague, ambiguous, overly broad, unduly burdensome, harassing, and
failed to state with reasonably particularity the information sought. Defendants further
object to the interrogatory to the extent it seeks information that is protected by the
attorney client privilege, the work product doctrine and/or any other applicable privilege
or protection. Ohio law prohibits discovery requests designed to take undue advantage
of the industry and efforts of opposing counsel by requiring counsel to review its own body
of evidence and compile the information into a neat little package for opposing counsel.”
disclosure of privileged materials. We will follow these cases in that they establish

that appellants have at least put forth a colorable claim that the discovery requests

at issue could result in the disclosure of materials covered by the work-product

doctrine.

We must note, however, that Sawyer and Decuzzi were decided before

significant changes were made to Ohio’s discovery rules that took effect on July 1,

2020. Civ.R. 86(TT). Those changes had not yet taken effect at the time the

discovery issues played out in the lower court in N.E. Monarch Constr., either. To

the extent these changes would not work an injustice or are not feasible, they apply

to the present case.6 Id.

Under current Civ.R. 26(A)(3), a party is required to disclose, without

awaiting a discovery request, “the name and, if known, the address and telephone

number of each individual likely to have discoverable information — along with the

subjects of that information — that the disclosing party may use to support its claims

or defenses, unless the use would be solely for impeachment”; and “a copy — or a

description by category and location — of all documents, electronically stored

information, and tangible things that the disclosing party has in its possession,

custody, or control and may use to support its claims or defenses, unless the use

would be solely for impeachment[.]” Civ.R. 26(A)(3)(a)(i) and 26(A)(3)(a)(ii).

Fed.R.Civ.P. 26(a)(1)(A) contains substantially similar provisions.

6 At the hearing held in the present case, appellees argued that changes to Civ.R.
26 applied and appellants did not contradict that assertion. (Tr. 77.)
 The next prong of the test requires us to determine whether the trial

court’s order determines the action and prevents a judgment favorable to appellants

on this issue. We conclude that it does. As explained above, the order requires

disclosure of information without any further steps or in camera review. As a result,

the order determines the action relative to the provisional remedy.

Finally, appellants must show that review after final judgment does

not constitutes an adequate remedy. “[A]ppellate courts must decide on a case-by-

case basis whether a trial court ruling ordering the disclosure of information

allegedly protected by the work[-]product doctrine is appealable based on whether

the appellant has shown that a postjudgment appeal would be ‘truly * * *

meaningless or ineffective’; ‘the irreversible nature of the order alone does not

satisfy R.C. 2505.02(B)(4)(b).’” (Emphasis sic.) DMS Constr. Ents., 8th Dist.

Cuyahoga No. 109343, 2020-Ohio-4919, ¶ 53, quoting Burnham, 151 Ohio St.3d

356, 2016-Ohio-8000, 89 N.E.3d 536, at ¶ 21, 26-27. We conclude that appellants

have failed to make this showing.

As the Glenn and Chen Courts noted, it is the party seeking immediate

relief that must demonstrate that appeal after final judgment represents an

inadequate remedy. Glenn, 165 Ohio St.3d 432, 2021-Ohio-3369, 179 N.E.3d 1205,

at ¶ 22; Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 8. In

appellants’ brief to this court, they do not sufficiently address whether appeal after

final judgment would constitute an adequate remedy. They claim that other courts

have found the required disclosure of privileged or confidential information have
been held to be final orders. Appellant’s brief, filed August 2, 2021, page 7-8, citing

Colombo v. Mismas Law Firm, LLC, 11th Dist. Lake No. 2014-L-069, 2015-Ohio-

812; Northeast Professional Home Care, Inc. v. Advantage Home Health Servs.,

188 Ohio App.3d 704, 2010-Ohio-1640, 936 N.E.2d 964 (5th Dist.); and Armstrong

v. Marusic, 11th Dist. Lake No. 2001-L-232, 2004-Ohio-2594. They also claim,

citing Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, 928 N.E.2d 763,

¶ 33 (10th Dist.), “These courts recognize that an order requiring the disclosure of

privileged matters presents the same harm as an order requiring the disclosure of

confidential matters. In both cases, injury results from the dissemination of the

information itself, which cannot be properly remedied absent an immediate appeal.”

Their reply brief does not offer significant further argument on this point.

Appellants do not address any of the work-product doctrine cases from the Supreme

Court of Ohio cited above or the changes to the discovery rules. Every discovery

order results in the disclosure of information. This argument alone is insufficient to

demonstrate that appeal after final judgment is an inadequate remedy. DMS

Constr. Ents., 8th Dist. Cuyahoga No. 109343, 2020-Ohio-4919, ¶ 53, quoting

Burnham at ¶ 21, 26-27.

In the present case, appellants admit at pages 12 and 14 of their April

2, 2021 brief in opposition to the motion to compel that they “have not withheld any

documents that are responsive to these requests. Instead, [we] are simply opposed

to being compelled to compile a list of the evidence and explain to opposing counsel

how they intend to utilize such evidence in defending against specific claims.”
Appellants claim, without individualized analysis, that the discovery orders require

them to explain to opposing counsel how they intend to utilize such evidence. In

light of the changes to the discovery rules, that is not evident from the discovery

requests themselves. For instance, in their brief in opposition to the motion to

compel they make the following arguments in relation to the second set of document

request nos. 6-63:

[Appellees] lastly complain that [appellants] refuse to identify and
produce the specific documents that “identify, describe, refer to, relate,
pertain to, or evidence” specific responses/allegations contained in
[appellants’] Answer and Counterclaim respectively. By the very
nature of the requests, [appellants] are being asked to identify the
specific evidence that they intend to rely on and/or offer at trial in
support of each specific legal claim. In doing so, the requests
improperly seek the protected mental impressions, conclusions,
opinions and legal theories of the Blue Parties’ counsel — i.e., privileged
work product.

(Emphasis added.) Identifying the evidence that a party intends to rely on in

support of a legal claim is what the discovery rules require. Civ.R. 26(A)(3)(a)(ii).

Further, based on appellants’ failure to identify any documents covered by the work-

product doctrine when given the opportunity, these discovery requests likely can be

answered without disclosing information covered by the work-product doctrine. See

Owens v. ACS Hotels, LLC, 9th Dist. Summit No. 27787, 2016-Ohio-5506, ¶ 6-8.

Unlike N.E. Monarch Constr., 8th Dist. Cuyahoga No. 109845, 2021-

Ohio-2438, the trial court held a hearing on appellees’ motion to compel where

appellants advanced only the barest of arguments in support of their claimed

privilege. They also did not provide any information that appellees or the court
could use to determine that, in fact, discovery responses called for the disclosure of

privileged information.

The arguments appellants make that appeal from final judgment

would be an inadequate remedy is similar to the limited argument rejected in Glenn.

There, “[i]n his response to the state’s motion to dismiss his appeal in the Second

District, Glenn offered a single conclusory statement regarding the effective-remedy

requirement, asserting that ‘[o]nce the information is released the privilege is

violated.’ And Glenn’s arguments in this court are similarly sparse.” Glenn, 165 Ohio

St.3d 432, 2021-Ohio-3369, 179 N.E.3d 1205, at ¶ 23. See also Chen, 142 Ohio St.3d

411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 8. Appellants are required to show why an

appeal after final judgment is an inadequate remedy and they have failed to make

that showing. Therefore, this portion of the appealed order does not constitute a

final order pursuant to R.C. 2505.02 and we lack jurisdiction to review first and

second assignments of error.

2. Financial Documents

Appellants also claim that the court erred in requiring appellants to

produce tax returns from 2013 through 2020. Appellants admit that tax returns

from certain years from certain parties are appropriate, but take issue with the scope

of the discovery order.

Privilege must rest upon some specific constitutional or statutory

provision. State ex rel. Grandview Hosp. & Med. Ctr. v. Gorman, 51 Ohio St.3d 94,

95, 554 N.E.2d 1297 (1990). “‘“Tax returns, while subject to heightened protection
from disclosure, are not privileged.”’” Estate of Wiedemer v. Cleveland Yachting

Club Inc., 8th Dist. Cuyahoga Nos. 110432 and 110681, 2022-Ohio-20, quoting G.S.

v. Khavari, 11th Dist. Trumbull No. 2016-T-0036, 2016-Ohio-5187, ¶ 10,

quoting Garver Rd. Invest., L.L.C. v. Diversapack of Monroe, L.L.C., 12th Dist.

Butler Nos. CA2013-10-181 and CA2013-10-183, 2014-Ohio-3551, ¶ 14.

Appellants, relying on State ex rel. Fisher v. Cleveland, 109 Ohio St.3d

33, 2006-Ohio-1827, 845 N.E.2d 500, claim that these sensitive documents have

been afforded added protections as confidential documents that contain a great deal

of personal information that enjoy an expectation of privacy. Essentially, appellants

do not assert that the tax returns that were ordered to be produced are privileged,

but they are so confidential that they should be afforded the same protections as

privileged information.7 Their arguments raised in the assignment of error

addressing the tax returns claim that they are not relevant, or they take issue with

the scope of the discovery order.

Some appellate courts have rejected appellants’ argument that tax

returns are confidential, rising to the level of privileged, for purposes of R.C.

2505.02. Bates v. Midland Title of Ashtabula Cty., Inc., 11th Dist. Lake No. 2003-

L-127, 2004-Ohio-6325, ¶ 43; Garver Rd. Invest., LLC v. Diversapack of Monroe,

LLC, 12th Dist. Butler Nos. CA2013-10-181 and CA2013-10-183, 2014-Ohio-3551;

Hope Academy Broadway Campus v. White Hat Mgt., LLC, 10th Dist. Franklin No.

7 Some confidential information, such as trade secrets, enjoy a status akin to
privilege for purposes of R.C. 2505.02. See, e.g., Organ Cole, LLP v. Andrew, 10th Dist.
Franklin No. 20AP-65, 2021-Ohio-924.
12AP-116, 2013-Ohio-911, ¶ 41-43 (finding that an appeal from an order that

required the disclosure of tax returns on relevancy grounds was unrelated to

privilege and not a final order). Another court has held that because of a heightened

expectation of privacy in these important financial documents, the required

disclosure of tax returns in a discovery dispute constitutes the grant or denial of a

provisional remedy. Mezatasta v. Ent. Hill Farm, 6th Dist. Erie No. E-15-037, 2016-

Ohio-3371, ¶ 18, citing State ex rel. Fisher, 109 Ohio St.3d 33, 2006-Ohio-1827, 845

N.E.2d 500, ¶ 27, 32 (however, this case dealt with a motion to quash a subpoena

duces tecum issued to a third party). Tax returns are often the subject of discovery

and disclosed in many civil cases.

There does not appear to be agreement on any of these points between

Ohio appellate courts. This court has addressed the issue, but only in the context of

the denial of a motion to quash a subpoena issued to a third party. See Estate of

Wiedemer v. Cleveland Yachting Club Inc., 8th Dist. Cuyahoga Nos. 110432 and

110681, 2022-Ohio-20; Gangale v. Coyne, 8th Dist. Cuyahoga No. 110772, 2022-

Ohio-196. The denial of a motion to quash a subpoena directed at a nonparty is, in

and of itself, a final order. Godwin v. Facebook, Inc., 2020-Ohio-4834, 160 N.E.3d

372, ¶ 11 (8th Dist.). This is true regardless of whether the discovery order seeks

allegedly privileged information because “[t]he denial of a motion to quash requires

a nonparty to produce documents, an act that cannot be remedied at the conclusion

of the case after the documents have been produced.” Id., citing Future

Communications, Inc. v. Hightower, 10th Dist. Franklin No. 01AP-1175, 2002-
Ohio-2245. So, these cases do not address the specific question with which we are

faced.

The case relied on by appellants, State ex rel. Fisher, 109 Ohio St.3d

33, 2006-Ohio-1827, 845 N.E.2d 500, does not address this specific issue, either.

This taxpayer action did not involve an analysis of R.C. 2505.02’s provisional

remedy test or even discovery disputes in civil litigation.

The parties have not directed us to any case where this court or the

Supreme Court of Ohio has held that the ordered disclosure of tax returns in

discovery challenged on privilege and relevancy grounds constitutes a final order.8

We have held that a trial court order requiring a party to sign an IRS form that would

allow for the release of records that detailed the amount of unpaid withholding taxes

owed to the federal government does not constitute a final order. Mentor Way Real

Estate Partnership v. Hertanu, 8th Dist. Cuyahoga No. 103267, 2016-Ohio-4692.

But this case was decided, at least in part, on the fact that any right to confidentiality

belonged to a party that was not asserting it in the appeal.

Generally, an order compelling production of material allegedly
protected by a statutory privilege is a final appealable order. See,
e.g., Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-
8000, 89 N.E.3d 536 (order compelling the production of documents
allegedly protected by statutory attorney-client privilege is a final,
appealable order); Jacob v. Youngstown Ohio Hosp. Co., 7th Dist.
Mahoning No. 11 MA 193, 2012-Ohio-1302, ¶ 20 (provisional remedy

8
Appellees do quote language purportedly from an Eighth District case in their
brief, Legg v. Fuchs, 140 Ohio App.3d 223, 746 N.E.2d 1195 (8th Dist.2000). However,
this case does not stand for the proposition for which it was cited or contain the attributed
quoted material. It appears this case was cited in error and the proper citation is to Legg
v. Hallet, 10th Dist. Franklin No. 07AP-170, 2007-Ohio-6595.
 order is final if it compelled the production of documents containing
trade secrets or privileged communications).

Squiric v. Surgical Hosp. at Southwoods, 7th Dist. Mahoning No. 20 MA 0015,

2020-Ohio-7026, ¶ 15. But as noted above, appellants have not pointed us to any

cases from this district or recognized statutory privilege that establish that tax

returns fall within this general rule. Appellants do point to 26 U.S.C. 6103 and R.C.

5747.18, but these code sections do not establish a statutory privilege. These statutes

mandate that any information received by the respective taxing authorities shall be

treated as confidential. The language used in these statutes does not resemble the

language of statutes where the ordered disclosure of privileged or confidential

information has been determined to be a final order. See, e.g., R.C. 1333.65 (trade

secrets), 2305.252 (peer-review privilege), and 2317.02 (defining privileged

communications).

We do not need to bind this court to one path or the other in this

appeal because we conclude that appellants have failed to satisfy the third prong of

the test for a final order in R.C. 2505.02(B)(4).9

Just as in the work-product analysis above, appellants are required to

show that appeal after final judgment does not constitute an adequate remedy.

Here, they have failed to make that showing.

9 There is no real dispute here that the ordered disclosure of tax returns determines

the provisional remedy, the second prong of the test.
 As the Glenn and Chen Courts have noted, it is the party seeking

immediate relief that must demonstrate that appeal after final judgment represents

an inadequate remedy. Glenn, 165 Ohio St.3d 432, 2021-Ohio-3369, 179 N.E.3d

1205, at ¶ 22; Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 8.

In appellants’ brief to this court, they merely state that an order that

requires the disclosure of privileged matters presents the same harm as an order

requiring the disclosure of confidential matters. They go on to state, “In both cases,

injury results from the dissemination of the information itself, which cannot be

properly remedied absent an immediate appeal.” Appellants’ Brief filed August 2,

2021, page 8, citing Bennet, 186 Ohio App.3d 412, 2009-Ohio-6195, 928 N.E.2d 763,

¶ 33 (10th Dist.).

As stated above, they do not more than cursorily address why appeal

after final judgment is an inadequate remedy. A conclusory statement is insufficient

to demonstrate an order constitutes a final order under R.C. 2505.02. DMS Constr.

Ents., 8th Dist. Cuyahoga No. 109343, 2020-Ohio-4919, at ¶ 53, quoting

Burnham at ¶ 21, 26-27 (Appellants must show “that a postjudgment appeal would

be ‘truly * * * meaningless or ineffective’; ‘the irreversible nature of the order alone

does not satisfy R.C. 2505.02(B)(4)(b).”’) The conclusion above, that this argument

is insufficient to demonstrate an order constitutes a final order under R.C. 2505.02,

is also applicable here. Appellees raised these issues in their appellate brief. Yet, in

their reply brief, appellants did not significantly address the adequate remedy

provision of R.C. 2505.02(B)(4). In fact, appellants acknowledge that some of the
tax records are subject to discovery claim the returns are not relevant or take issue

with the scope. There may be a case where the required disclosure of tax returns in

discovery could constitutes a final order, but appellants have not made the required

showing in this case.

We find that appellants have failed to demonstrate that the order

appealed constitutes a final order under R.C. 2505.02. Accordingly, we do not have

jurisdiction to review the claims raised here.10

Appeal dismissed.

It is ordered that appellees recover from appellants costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EMANUELLA D. GROVES, JUDGE

MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR

10In their brief, appellees request that if we find that we lack jurisdiction over this
appeal that we award attorney fees. This is a not a proper motion for attorney fees and
we decline to address it.