State ex rel. Hastings Mutual Insurance v. Merillat

Sweeney, J.

Appellant contends that the court of appeals erred in concluding that the records at issue in the case subjudice were subject to the exceptions to public disclosure contained in R.C. 149.43(A)(1). Appellant further maintains that, irrespective of the ultimate determination regarding disclosure of all or part of the records, the appellate court was required to conduct an in camera review of the documents and determine on an individual basis which materials were exempt from disclosure and which were not.

We conclude, however, that these issues are not properly presented for our review. Given the current procedural context, a writ of mandamus is an inappropriate vehicle by which to gain access to the records in question.

In State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141, 40 O.O. 2d 141, 228 N.E. 2d 631, this court recognized that a writ of mandamus will not lie where the relator has a plain and adequate remedy in the ordinary course of the law by way of appeal.

A writ of mandamus brought pursuant to R.C. 149.43 is no different from writs authorized under other provisions of law and is subject to the same limitations. In State, ex rel. *154Scanlon, v. Deters (1989), 45 Ohio St. 3d 376, 544 N.E. 2d 680, we held in paragraph one of the syllabus:

“A relator in a mandamus action seeking production of documents pursuant to R.C. 149.43 is required, as are relators in other mandamus actions, to show the absence of an adequate alternative to issuing the writ.”

As recognized in Pressley, supra, appellate review constitutes an adequate remedy at law such as to preclude the employment of a writ of mandamus to obtain identical relief. Moreover, a remedy will not be deemed inadequate merely because it may be less convenient than resort to an extraordinary writ. In State, ex rel. Kronenberger-Fodor Bldg. Co., v. Parma (1973), 34 Ohio St. 2d 222, 225, 63 O.O. 2d 362, 363, 297 N.E. 2d 525, 527, it was observed: “* * * where a constitutional process of appeal has been legislatively provided, the sole fact that pursuing such process would encompass more delay and inconvenience than seeking an extraordinary remedy is insufficient to prevent the process from constituting a plain and adequate remedy in the ordinary course of the law.” See, also, State ex rel. Cinnamon Lake Utility Co., v. Pub. Util. Comm. (1975), 41 Ohio St. 2d 79, 80, 70 O.O. 2d 165, 166, 322 N.E. 2d 645, 649.

In the case at bar, appellant sought access to documents which had previously been the subject of a subpoena duces tecum issued pursuant to Civ. R. 30(B). The trial court thereafter granted a Civ. R. 26(B) motion to quash the subpoena.

The granting of the motion was appealed to the Court of Appeals for Fulton County which correctly determined that, pursuant to our holding in Klein v. Bendix-Westinghouse Auto. Air Brake Co. (1968), 13 Ohio St. 2d 85, 87, 42 O.O. 2d 283, 284, 234 N.E. 2d 587, 589, the decision of the trial court was interlocutory in nature and thus not subject to immediate appellate review. Inasmuch as the granting of the motion to quash the subpoena duces tecum by the trial court was not a final appealable order, review of that decision must await the ultimate resolution of the underlying action. Furthermore, as evidenced by the cases cited herein, any delay or inconvenience which may result from pursuing this course of action provides no basis for circumventing the appellate process.

Our holding in State, ex rel. Scanlon, supra, also acknowledged that a writ of mandamus brought pursuant to R.C. 149.43 is unavailable where other procedural mechanisms may be employed to obtain the relief sought. Accordingly, paragraph two of the syllabus in State, ex rel. Scanlon provides:

“Where Crim. R. 16 provides a relator an adequate alternative remedy to R.C. 149.43, he cannot be granted a writ of mandamus ordering the production of public records available under such rule.”

A Crim. R. 16 discovery request does not differ markedly from a subpoena issued to a non-party witness pursuant to Crim. R. 17 or Civ. R. 30(B). Indeed, we observed in State, ex rel. Scanlon, at 378-379, 544 N.E. 2d at 683, that a Crim. R. 16 discovery request would provide broader access to relevant documents than a writ of mandamus brought pursuant to R.C. 149.43. Similarly, a subpoena duces tecum issued pursuant to Civ. R. 30(B) would appear to afford comparable benefits. In either case, a protective order or an order to quash the subpoena is subject to appellate review.

We therefore conclude that the granting of a Civ. R. 26(B) motion to quash a subpoena duces tecum issued pursuant to Civ. R. 30(B) is subject to *155review by way of appeal. Accordingly, the party opposing the motion may not seek to obtain identical relief collaterally through the institution of a separate action in mandamus brought pursuant to R.C. 149.43(C).

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Holmes, H. Brown and Re snick, JJ., concur. Douglas and Wright, JJ., dissent.