concurring in judgment only.
{¶ 21} I concur with the majority’s holding to the extent that it affirms the judgment of the court of appeals that overturned the trial court’s order compelling the production of privileged communications and attorney work product relating to Jackson’s Section 1983 action. I would hold, however, that R.C. 2317.02(A), relating to testimonial privilege, does not apply and that Greger did not satisfy the test for implied waiver of the common-law attorney-client privilege.
{¶ 22} R.C. 2317.02(A) precludes an attorney from testifying on issues covered by the attorney-client privilege:
{¶ 23} “The following persons shall not testify in certain respects:
{¶ 24} “(A) An attorney, concerning a communication made to the attorney by a client in that relation or the attorney’s advice to a client * * (Emphasis added.)
{¶ 25} The statute’s prohibition does not address the client. Nor does R.C. 2317.02(A) abrogate the common-law privilege. We recently noted in State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, that “R.C. 2317.02(A), by its very terms, is a mere testimonial privilege precluding an attorney from testifying about confidential communications. The common-law attorney-client privilege, however, ‘reaches far beyond a proscription against testimonial speech. The privilege protects against any dissemination of information obtained in the confidential relationship.’ Am. Motors [Corp. v. Huffstutler (1991)], 61 Ohio St.3d [343] at 348, 575 N.E.2d 116.” Id. at ¶ 26.
{¶ 26} The majority declares that “[b]ecause this case involves communications directly between an attorney and a client, R.C. 2317.02(A) applies.” The case cited for this proposition, State v. McDermott (1995), 72 Ohio St.3d 570, 574, 651 N.E.2d 985, however, squarely considered whether an attorney could be compelled to testify without a statutory waiver.
{¶ 27} This case is different. Greger did not seek to compel testimony of an attorney for trial or at deposition but sought the production of documents and answers to interrogatories from Jackson concerning her federal civil rights action. R.C. 2317.02(A) by its terms does not apply. Jackson’s claim of privilege arises not from statute but from common law.
*494{¶ 28} The common-law attorney-client privilege protects from disclosure oral, written, or recorded communications between attorney and client unless the privilege is waived. See Leslie, 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 26. At common law, the attorney-client privilege could be waived either expressly or by conduct implying waiver. See 8 Wigmore, Evidence (McNaughton Rev.1961) 634, Section 2327.
{¶ 29} The test for waiver as established in Hearn v. Rhay (E.D.Wash.1975), 68 F.R.D. 574, 581, and applied by the Second District Court of Appeals in this case, states that the attorney-client privilege is deemed waived by the asserting party if (1) assertion of the privilege is the result of some affirmative act, such as filing suit, by the asserting party, (2) through the affirmative act, the asserting party has placed the protected information at issue by making it relevant to the case, and (3) application of the privilege would deny the opposing party access to information vital to its defense.
{¶ 30} The parties here, although they disagreed over its application, assumed that the Hearn test was the appropriate method of determining whether an implied waiver had occurred. Fully half of Ohio’s appellate districts have applied the reasoning of Hearn3 In none of these cases was an attorney being asked to testify about privileged communications; the cases involved disputes over discovery production. Most, as the Second District did here, found that the test was not satisfied.
{¶ 31} Without expressly repudiating the use of Hearn in Ohio, the majority does so implicitly by holding that R.C. 2317.02(A) provides the sole means of waiving the attorney-client privilege. As a consequence, the statute is expanded and common-law waiver is narrowed. A trial court is left with a void in its capability to compel production of documents during discovery disputes. I cannot conclude that nontestimonial matters are covered by the statute and *495therefore would approve and apply the useful test of Hearn v. Rhay, 68 F.R.D. 574.
Kevin O’Brien & Associates Co., L.P.A., Kevin O’Brien, and Carrie Doppes Wolfe, for appellee. Reminger & Reminger Co., L.P.A., Brian D. Goldwasser, and Joseph W. Borchelt, for appellants.. The Second, Third, Sixth, Eighth, Tenth, and Twelfth Appellate Districts have discussed implied waiver. See, e.g., Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc. (1992), 82 Ohio App.3d 322, 332, 612 N.E.2d 442 (attorney files concerning an insured’s prior tort action were not available because two prongs of the Hearn test were not met); Ward v. Graydon, Head & Ritchey (2001), 147 Ohio App.3d 325, 770 N.E.2d 613 (client impliedly waived attorney-client privilege by placing protected information at issue when he filed malpractice suit and testimony was vital to law firm’s defense); McMahon v. Shumaker, Loop Kendrick, L.L.P, 162 Ohio App.3d 739, 2005-Ohio-4436, 834 N.E.2d 894 (attorney-client privilege was not waived when the second and third parts of the Hearn test were not met); H & D Steel Serv., Inc. v. Weston, Hurd, Fallon, Paisley & Howley (July 23, 1998), Cuyahoga App. No. 72758, 1998 WL 413772 (third prong of test not satisfied); Schottenstein, Zox & Dunn v. McKibben, 10th Dist. No. 01AP-1384, 2002-Ohio-5075, 2002 WL 31122804 (insufficient evidence of second and third parts of Hearn test); G. Rand Smith Co., L.P.A v. Footbridge Capital, L.L.C., 3d Dist. No. 14-01-39, 2002-Ohio-2189, 2002 WL 987846 (third prong not met because there was no showing that information could not be obtained through any other source).