In Smith v. Chen, Slip Opinion No. 2015- Ohio-1480, the Supreme Court of Ohio sua sponte dismissed an appeal because the parties failed to establish that the trial court’s order to disclose attorney work product was a final, appealable order. Id. at ¶1. Despite noting that “[a] proceeding for ‘discovery of privileged matter’ is a ‘provisional remedy’ within the meaning of R.C. 2505.02(A)(3)” the Supreme Court of Ohio dismissed the appeal because neither party established that the trial court order was a final, appealable order. Specifically, the court found that the parties failed to show that the trial court’s order had the effect of “determining the action with respect to the provisional remedy and preventing a judgment in the action in favor of the appealing party with respect to the provisional remedy and the appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action” as required under R.C. 2505.02(B)(4). Smith, at ¶5. The court concluded that “[a] plain reading of the statute shows that an order must meet the requirements in both subsections of the provisional-remedy section of the definition of final, appealable order in order to maintain an appeal” and the parties balked at the Supreme Court of Ohio’s order to show cause. Id. at ¶6, emphasis in original.
The court explained that its ruling in Smith “does not adopt a new rule, nor does it make an appeal from an order compelling disclosure of privileged material more difficult to maintain [because] [a]n order compelling disclosure of privileged material that would truly render a post[-]judgment appeal meaningless or ineffective may still be considered on an immediate appeal.” Id. at ¶9, emphasis in original. Instead, the Supreme Court of Ohio merely required the parties to state that the trial court’s order was a final, appealable order under R.C. 2505.02(B)(4), rather than have the parties ostensibly agree to the same based on prior case law in Ohio. Smith, at ¶6. The parties’ refusal to brief the issue, despite an order to show cause from the Supreme Court of Ohio, warranted dismissal notwithstanding the fact that long-standing precedent held that an order compelling disclosure of privileged material is subject to an interlocutory appeal over which the appellate court has jurisdiction. See Smith, at ¶6 and ¶14-16.
Notably, Justice Kennedy in her dissent, joined by Justices O’Donnell and French, stated that the majority’s holding in Smith “destabilizes the law with regard to whether orders compelling production of allegedly privileged material are final and appealable.” See Smith, at ¶14-16. In her dissent, Justice Kennedy provided that “[o]rders compelling discovery of privileged information have been considered final, appealable orders under R.C. 2505.02(B)(4) in every district” and listed the controlling decisions on the issue for each district. See Smith, at ¶14-16.
Unfortunately, the dissenting justices were correct in their prediction that the majority’s holding would be used to destabilize the law on whether orders compelling production of privileged documents are final, appealable orders under R.C. 2505.02(B)(4). Recently, the Eighth District Court of Appeals in Burnham v. Cleveland Clinic, 8th Dist. Cuyahoga No. 102038, 2015-Ohio-2044, dismissed an appeal of an order requiring the production of privileged attorney client communications in accordance with Smith, supra.
The party compelled to produce documents in Burnham argued that in accordance with longstanding case law in Ohio, i.e., the case law referenced in Justice Kennedy’s dissent, that the “bell will have rung” if they were required to produce the privileged documents than wait until the adjudication of the case to appeal the issue. See Burnham, at ¶13. Notwithstanding, the Eighth District dismissed the appeal, holding that this contention “does not affirmatively establish that an immediate appeal is necessary, nor does it demonstrate how it would be prejudiced by the disclosure.” Id.
From this decision, it is clear that the Supreme Court of Ohio’s decision in Smith, supra is being used in a manner that the dissenting justices feared and undermines the established precedent of each jurisdiction in the state of Ohio that orders compelling the production of privileged materials constitute final, appealable orders pursuant to R.C. 2505.02(B)(4). Hopefully, the Supreme Court of Ohio will rectify this trend and clarify the holding in Smith, supra by accepting jurisdiction of Burnham, supra.
Jason A. Paskan