[Cite as Dawson v. Ohio Gratings, Inc., 2021-Ohio-2028.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JAMES DAWSON, et al. JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiffs-Appellees Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2020CA00179 OHIO GRATINGS, INC. et al.
Defendants-Appellants O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2019-CV- 01997
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 15, 2021
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
MARIO GAITANOS CRAIG G. PELINI PETER GAITANOS Pelini, Campbell & Williams, LLC 437 Market Avenue, North 8040 Cleveland Avenue, NW – Ste. #400 Canton, Ohio 44702 North Canton, Ohio 44720
Bureau of Workers’ Compensation
EDWARD TO SAADI 970 Windham Ct., Suite #7 Boardman, Ohio 44512 Stark County, Case No. 2020CA00179 2
Hoffman, J. {¶1} Defendant-appellant Ohio Gratings, Inc. (“OGI”) appeals the December 1,
2020 Judgment Entry entered by the Stark County Court of Common Pleas, which
granted plaintiffs-appellees James Dawson, et al.’s motion to compel production of an
accident investigation report.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 12, 2018, Appellee James Dawson (hereinafter “Dawson”)
sustained serious injuries while operating an electric powered Bliss C-75 Connecting Bar
Press, owned and maintained by his employer, OGI. The Bureau of Workers’
Compensation Safety Violations Investigation Unit conducted an investigation, which
revealed a guard on the Bar Press had been removed, and, as a result, Dawson’s left
hand was crushed and three of his fingers were amputated.
{¶3} The Bureau of Workers’ Compensation (“BWC”) ultimately ruled Dawson
was entitled to workers’ compensation benefits. On July 22, 2019, OGI filed an appeal to
the trial court from the Industrial Commission’s order allowing Dawson’s claim for benefits
(Stark County Court of Common Pleas Case No. 2019 CV 01208). During a discovery
deposition in Case No. 2019 CV 01208, Danielle Sanders, who was the corporate
paralegal for OGI’s in-house legal counsel at the time of the accident and is currently
OGI’s human resources generalist, testified, following a work-related injury, OGI requires
the injured employee and his/her supervisor complete an accident investigation report.
February 3, 2020 Deposition of Danielle Sanders at 15. The completed report is placed
in the injured employee’s workers’ compensation file. Id. at 21. Sanders could not recall
seeing the report following Dawson’s accident. Id. at 22. Stark County, Case No. 2020CA00179 3
{¶4} Attorney Mario Gaitanos, counsel for Appellees, requested he be provided
with a copy of the accident investigation report. Attorney Tod Morrow, counsel for OGI in
Case No. 2019 CV 01208, indicated the report could be accessed through the BWC online
document system. When Attorney Gaitanos advised Attorney Morrow the accident
investigation report was not in the BWC online claim file, Attorney Susan Chae, co-
counsel for OGI, stated she would get if for him, adding, “[i]t’s all online.” Id. at 24. Later,
Attorney Morrow stated, “everything in the file is on file with the BWC except these
documents which we’ve withheld based on privilege.” Id. at 33. The accident
investigation report was never provided to Appellees.
{¶5} On October 3, 2019, Appellees filed a complaint for personal injury and loss
of consortium against OGI. During discovery, Appellees requested OGI produce the
accident investigation report. OGI objected, arguing the report was prepared at the
specific request of its personal litigation counsel; therefore, privileged. On November 2,
2020, Appellees filed a motion to compel production of the accident investigation report.
OGI filed a memorandum in opposition on November 16, 2020. Appellees filed a reply in
response to OGI’s memorandum on November 19, 2020.
{¶6} Via Judgment Entry filed December 1, 2020, the trial court granted
Appellees’ motion to compel and ordered OGI to produce the accident investigation report
on or before December 15, 2020.
{¶7} It is from this judgment entry OGI appeals, raising as its sole assignment of
error: Stark County, Case No. 2020CA00179 4
THE TRIAL COURT ERRED IN ORDERING
DEFENDANT/APPELLANT OHIO GRATINGS, INC. TO PRODUCE A
COPY OF THE ACCIDENT INVESTIGATION REPORT WHICH WAS
PROTECTED BY ATTORNEY-CLIENT PRIVILEGE AND/OR WORK
PRODUCT.
I.
{¶8} Generally, discovery orders are not immediately appealable. Walters v.
Enrichment Center of Wishing Well, Inc., 78 Ohio St.3d 118, 676 N.E.2d 890 (1997).
However, if the judgment orders a party to disclose allegedly privileged material, it is
appealable pursuant to R.C. 2505.02(A)(3) and (B)(4). Northeast Professional Home
Care, Inc. v. Advantage Home Health Servs., Inc., 188 Ohio App.3d 704, 936 N.E.2d
964,2019-Ohio-1640 at ¶ 34. Because a trial court has broad discretion over discovery
matters, a reviewing court reviews these rulings only for an abuse of discretion. State ex
rel. Duncan v. Middlefield, 120 Ohio St.3d 313, 2008–Ohio–6200, 898 N.E.2d 952, ¶ 27.
Accordingly, this Court will not reverse a trial court’s decision on a motion to compel
absent an abuse of discretion. State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d
467, 692 N.E.2d 198.
{¶9} OGI maintains the accident investigation report is protected under the
doctrines of attorney-client privilege and attorney work product and the trial court erred in
ordering the report to be produced.
{¶10} The main purpose behind the attorney-client privilege is to promote “ ‘full
and frank communication between attorneys and their clients and thereby promote Stark County, Case No. 2020CA00179 5
broader public interests in the observance of law and the administration of justice’.”
Griffith v. Aultman Hosp., 5th Dist. Stark No. 2017CA0004, 2017-Ohio-8293, ¶ 44 citing
Boone v. Vanliner Ins. Co. (2001), 91 Ohio St.3d 209, 210, 744 N.E.2d 154, fn. 2, quoting
Upjohn Co. v. United States (1982), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584.
On the other hand, “[t]he purpose of the work-product rule is ‘(1) to preserve the right of
attorneys to prepare cases for trial with that degree of privacy necessary to encourage
them to prepare their cases thoroughly and to investigate not only the favorable but the
unfavorable aspects of such cases and (2) to prevent an attorney from taking undue
advantage of his adversary's industry or efforts.’ Civ.R. 26(A). To that end, Civ.R.
26(B)(3) places a burden on the party seeking discovery to demonstrate good cause for
the sought-after materials.” Jackson v. Greger, 110 Ohio St.3d 488, 2006–Ohio–4968,
854 N.E.2d 487, ¶ 16. Although both the attorney-client privilege and the work-product
doctrine might often apply to the same material, the protections do not overlap
completely. See, In re Election of Nov. 6, 1990 for the Office of Atty. Gen. of Ohio (1991),
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[Cite as Dawson v. Ohio Gratings, Inc., 2021-Ohio-2028.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JAMES DAWSON, et al. JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiffs-Appellees Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2020CA00179 OHIO GRATINGS, INC. et al.
Defendants-Appellants O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2019-CV- 01997
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 15, 2021
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
MARIO GAITANOS CRAIG G. PELINI PETER GAITANOS Pelini, Campbell & Williams, LLC 437 Market Avenue, North 8040 Cleveland Avenue, NW – Ste. #400 Canton, Ohio 44702 North Canton, Ohio 44720
Bureau of Workers’ Compensation
EDWARD TO SAADI 970 Windham Ct., Suite #7 Boardman, Ohio 44512 Stark County, Case No. 2020CA00179 2
Hoffman, J. {¶1} Defendant-appellant Ohio Gratings, Inc. (“OGI”) appeals the December 1,
2020 Judgment Entry entered by the Stark County Court of Common Pleas, which
granted plaintiffs-appellees James Dawson, et al.’s motion to compel production of an
accident investigation report.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 12, 2018, Appellee James Dawson (hereinafter “Dawson”)
sustained serious injuries while operating an electric powered Bliss C-75 Connecting Bar
Press, owned and maintained by his employer, OGI. The Bureau of Workers’
Compensation Safety Violations Investigation Unit conducted an investigation, which
revealed a guard on the Bar Press had been removed, and, as a result, Dawson’s left
hand was crushed and three of his fingers were amputated.
{¶3} The Bureau of Workers’ Compensation (“BWC”) ultimately ruled Dawson
was entitled to workers’ compensation benefits. On July 22, 2019, OGI filed an appeal to
the trial court from the Industrial Commission’s order allowing Dawson’s claim for benefits
(Stark County Court of Common Pleas Case No. 2019 CV 01208). During a discovery
deposition in Case No. 2019 CV 01208, Danielle Sanders, who was the corporate
paralegal for OGI’s in-house legal counsel at the time of the accident and is currently
OGI’s human resources generalist, testified, following a work-related injury, OGI requires
the injured employee and his/her supervisor complete an accident investigation report.
February 3, 2020 Deposition of Danielle Sanders at 15. The completed report is placed
in the injured employee’s workers’ compensation file. Id. at 21. Sanders could not recall
seeing the report following Dawson’s accident. Id. at 22. Stark County, Case No. 2020CA00179 3
{¶4} Attorney Mario Gaitanos, counsel for Appellees, requested he be provided
with a copy of the accident investigation report. Attorney Tod Morrow, counsel for OGI in
Case No. 2019 CV 01208, indicated the report could be accessed through the BWC online
document system. When Attorney Gaitanos advised Attorney Morrow the accident
investigation report was not in the BWC online claim file, Attorney Susan Chae, co-
counsel for OGI, stated she would get if for him, adding, “[i]t’s all online.” Id. at 24. Later,
Attorney Morrow stated, “everything in the file is on file with the BWC except these
documents which we’ve withheld based on privilege.” Id. at 33. The accident
investigation report was never provided to Appellees.
{¶5} On October 3, 2019, Appellees filed a complaint for personal injury and loss
of consortium against OGI. During discovery, Appellees requested OGI produce the
accident investigation report. OGI objected, arguing the report was prepared at the
specific request of its personal litigation counsel; therefore, privileged. On November 2,
2020, Appellees filed a motion to compel production of the accident investigation report.
OGI filed a memorandum in opposition on November 16, 2020. Appellees filed a reply in
response to OGI’s memorandum on November 19, 2020.
{¶6} Via Judgment Entry filed December 1, 2020, the trial court granted
Appellees’ motion to compel and ordered OGI to produce the accident investigation report
on or before December 15, 2020.
{¶7} It is from this judgment entry OGI appeals, raising as its sole assignment of
error: Stark County, Case No. 2020CA00179 4
THE TRIAL COURT ERRED IN ORDERING
DEFENDANT/APPELLANT OHIO GRATINGS, INC. TO PRODUCE A
COPY OF THE ACCIDENT INVESTIGATION REPORT WHICH WAS
PROTECTED BY ATTORNEY-CLIENT PRIVILEGE AND/OR WORK
PRODUCT.
I.
{¶8} Generally, discovery orders are not immediately appealable. Walters v.
Enrichment Center of Wishing Well, Inc., 78 Ohio St.3d 118, 676 N.E.2d 890 (1997).
However, if the judgment orders a party to disclose allegedly privileged material, it is
appealable pursuant to R.C. 2505.02(A)(3) and (B)(4). Northeast Professional Home
Care, Inc. v. Advantage Home Health Servs., Inc., 188 Ohio App.3d 704, 936 N.E.2d
964,2019-Ohio-1640 at ¶ 34. Because a trial court has broad discretion over discovery
matters, a reviewing court reviews these rulings only for an abuse of discretion. State ex
rel. Duncan v. Middlefield, 120 Ohio St.3d 313, 2008–Ohio–6200, 898 N.E.2d 952, ¶ 27.
Accordingly, this Court will not reverse a trial court’s decision on a motion to compel
absent an abuse of discretion. State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d
467, 692 N.E.2d 198.
{¶9} OGI maintains the accident investigation report is protected under the
doctrines of attorney-client privilege and attorney work product and the trial court erred in
ordering the report to be produced.
{¶10} The main purpose behind the attorney-client privilege is to promote “ ‘full
and frank communication between attorneys and their clients and thereby promote Stark County, Case No. 2020CA00179 5
broader public interests in the observance of law and the administration of justice’.”
Griffith v. Aultman Hosp., 5th Dist. Stark No. 2017CA0004, 2017-Ohio-8293, ¶ 44 citing
Boone v. Vanliner Ins. Co. (2001), 91 Ohio St.3d 209, 210, 744 N.E.2d 154, fn. 2, quoting
Upjohn Co. v. United States (1982), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584.
On the other hand, “[t]he purpose of the work-product rule is ‘(1) to preserve the right of
attorneys to prepare cases for trial with that degree of privacy necessary to encourage
them to prepare their cases thoroughly and to investigate not only the favorable but the
unfavorable aspects of such cases and (2) to prevent an attorney from taking undue
advantage of his adversary's industry or efforts.’ Civ.R. 26(A). To that end, Civ.R.
26(B)(3) places a burden on the party seeking discovery to demonstrate good cause for
the sought-after materials.” Jackson v. Greger, 110 Ohio St.3d 488, 2006–Ohio–4968,
854 N.E.2d 487, ¶ 16. Although both the attorney-client privilege and the work-product
doctrine might often apply to the same material, the protections do not overlap
completely. See, In re Election of Nov. 6, 1990 for the Office of Atty. Gen. of Ohio (1991),
57 Ohio St.3d 614, 615, 567 N.E.2d 243.
{¶11} Privileges are to be strictly construed and “[t]he party claiming the privilege
has the burden of proving that the privilege applies to the requested
information.” Griffith, supra at ¶ 46 quoting Giusti v. Akron Gen. Med. Ctr., 178 Ohio
App.3d 53, 2008–Ohio–4333, 896 N.E.2d 769, at ¶ 17.
{¶12} During a discovery deposition in Case No. 2019 CV 01208, the following
exchange occurred between Attorney Gaitanos and Danielle Sanders, the corporate
paralegal for OGI’s in-house legal counsel at the time of the accident, regarding the
accident investigation report: Stark County, Case No. 2020CA00179 6
Q. Now, when someone gets injured on a job, in most manufacturing
settings, any type of setting, there’s an accident report that’s filled out by
the injured worker and by their supervisor. Would you agree with that?
A. Yes.
Q. Is that a policy that you guys also have? When I say you guys,
Ohio Gratings has?
Q. Was there an accident report that was prepared by Mr. Dawson
in this case?
A. I honestly do not know if we did an accident report. We should
have, and it would have been correct to have done so, but I did not review
it, so I can’t say right now in my memory that I saw it.
Q. Okay. I wasn’t provided a copy of it. Did you do a search in
determining whether there was an accident report?
A. Not recently, no, I have not done a search, no.
Q. Is there a supervisor’s report for this accident?
A. It would all be one report. So if we have it, it would all be together,
and I do not know from my memory if we have it.
***
A. There was an individual, Jeff Nixdorf, who would have helped
conduct the accident investigation, and our former HR business partner,
Norma Schaub.
*** Stark County, Case No. 2020CA00179 7
Q. And he was responsible in conducting the accident investigation?
Q. And did you have an opportunity to see that accident
investigation?
A. No.
Q. Do you know where that accident investigation is at?
A. I know where it should be.
Q. Where is it?
A. It should be in the file.
Q. Personnel file?
A. No. In the workers’ comp file.
Q. How many pages was this written accident investigation report?
A. Our standard accident report I believe is approximately seven
pages.
Q. Now, you’re saying that’s the standard accident report. And is
that on a preprinted form?
Q. In Mr. Dawson’s injury, involving Mr. Dawson’s injury, and do you
know when that took place?
A. March of 2018.
Q. In fact, it was March 12, 2018. Was the accident investigation
report more than seven pages? Stark County, Case No. 2020CA00179 8
A. It was the same report.
Sanders Depo. at 15-16, 20-21, 22.
{¶13} We find OGI failed to meet its burden of establishing the attorney-client
privilege applied to the accident investigation report. The accident investigation report
existed prior to the filing of the instant action. The attorney-client privilege cannot shield
the report from production merely because it was ultimately provided to Attorney Morrow
during the workers’ compensation proceedings.
{¶14} We further find the work product privilege does not extend to the accident
investigation report. We find Sanders’ deposition testimony is sufficient to support a
determination the accident investigation report was prepared in the ordinary course of
OGI’s business.
{¶15} Based upon the foregoing, we find the trial court did not abuse its discretion
in granting Appellees’ motion to compel. Stark County, Case No. 2020CA00179 9
{¶16} OGI’s sole assignment of error is overruled.
{¶17} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J. Baldwin, P.J. and Delaney, J. concur