concurring in part and dissenting in part.
{¶ 32} I concur in judgment only as to the first proposition of law because I do not agree that the General Assembly has provided in R.C. 2317.02(A) the exclusive means by which an attorney-client privilege may be overcome. We should not diminish the role of the courts in establishing evidentiary standards. As for privileges, Evid.R. 501 provides:
{¶ 33} “The privilege of a witness, person, state or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience.”
{¶ 34} R.C. 2317.02(A) does not abrogate the common law. Ward v. Graydon, Head & Ritchey (2001), 147 Ohio App.3d 325, 331, 770 N.E.2d 613. Common-law concepts of waiver should still apply to the privileges, and this court should adopt the Hearn test for the determination of implied waiver in attorney-client privilege cases. See Hearn v. Rhay (E.D.Wash.1975), 68 F.R.D. 574, 581. I agree with the appellate court that the appellant failed to meet the Hearn test and that the appellee did not impliedly waive her attorney-client privilege.
{¶ 35} As for the second proposition of law, I think it is a close question as to whether Greger showed good cause to discover the file materials of Jackson’s attorney. Since it is a close question, I would side with the trial court’s determination that the files are discoverable.