Doe v. American Cancer Society Ohio Div.

758 N.E.2d 296, 143 Ohio App. 3d 495, 2001 Ohio App. LEXIS 2436

• Court: Ohio Court of Appeals
• Decided: June 1, 2001
• Docket: Appeal No. C-000751, Trial No. A-9706835.
• Status: Published

Opinions

Sundermann, Judge.

The University of Cincinnati (“UC”) appeals from the trial court’s order denying its motion to intervene in an action' alleging a tortious invasion of privacy as a result of an American Cancer Society volunteer’s disclosing medical information to the plaintiffs neighbors in September 1997. UC sought intervention for the sole purpose of gaining access to the deposition and sworn answers to interrogatories of the plaintiff, which had been filed with the court and then sealed following settlement and dismissal of the action. For the reasons that follow, we reverse and remand this case to the trial court with instructions to make specific findings consistent with this decision.

Murphy, 1 the Jane Doe plaintiff in the underlying action, is presently the plaintiff in a separate federal action against UC. The federal action alleges that UC engaged in sex discrimination and retaliatory dismissal in violation of Title VII of the Civil Rights Act of 1964 when it terminated the plaintiffs employment as an assistant athletic coach in 1995. Murphy v. Univ. of Cincinnati, S.D.Ohio No. C-1-97-276, unreported. After the filing of motions for summary judgment in that action, Murphy filed an affidavit; dated January 27, 2000, in which she confirmed that she was the Jane Doe plaintiff in the underlying action here.

When exercising its discretion to grant or deny a motion to intervene pursuant to Civ.R. 24(B), the trial court should resort to the balancing test adopted by this court in Adams v. Metallica, Inc. (2001), 143 Ohio App.3d 482, 758 N.E.2d 286. In addition to the degree of similarity between the two suits to justify a claim of overlapping discovery, some of the factors to be considered include “the nature of the protective order, the parties’ reliance on it, the ability to gain access to the information in other ways, the need to avoid repetitive discovery, the nature of the material for which protection is sought, the need for continued secrecy, and the public interest involved.” Metallica, supra, citing State v. Philip Morris, Inc. (Minn.App.2000), 606 N.W.2d 676, 686.

As noted by the court in Pansy v. Borough of Stroudsburg (C.A.3, 1994), 23 F.3d 772, 789, “[t]o facilitate effective appellate review of a district court decision of whether to grant or modify an order of protection or confidentiality, a district court should articulate on the record findings supporting its judgment.” Unfortunately, the trial court here did not make such findings. Because we have only now, in Metallica and in this case, articulated the factors that should be considered in response to requests to modify protective or confidentiality orders, we remand this case to the trial court to make the necessary findings.

Therefore, we reverse the trial court’s order denying intervention and remand the case for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

Hildebrandt, J., concurs. Gorman, P.J., concurs separately.

1 . In án effort to maintain her privacy, we refer to Murphy by her surname only.