Dubson v. Montefiore Home

2012 Ohio 2384

• Court: Ohio Court of Appeals
• Decided: May 31, 2012
• Docket: 97104
• Status: Published

Opinion

[Cite as Dubson v. Montefiore Home, 2012-Ohio-2384.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97104

IRENE DUBSON, AS THE APPOINTED GUARDIAN OF SARA KIMIAGAROVA PLAINTIFF-APPELLEE

vs.

THE MONTEFIORE HOME, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-728974

BEFORE: Boyle, P.J., E. Gallagher, J., and Kilbane, J.

RELEASED AND JOURNALIZED: May 31, 2012 ATTORNEY FOR APPELLANTS

Patrick S. Corrigan 55 Public Square Suite 930 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Blake A. Dickson Mark D. Tolles II The Dickson Firm, LLC Enterprise Place, Suite 420 3401 Enterprise Parkway Beachwood, Ohio 44122 MARY J. BOYLE, P.J.:

{¶1} Defendant-appellant, The Montefiore Home (“nursing home”), appeals the

trial court’s decision granting in part the motion to compel filed by plaintiff-appellee,

Irene Dubson, as the appointed guardian of Sara Kimiagarova, and denying its motion for

a protective order. Finding some merit to the appeal, we affirm in part, reverse in part,

and remand for further proceedings.

Procedural History and Facts

{¶2} In June 2010, Dubson commenced the underlying action against the nursing

home and John Doe defendants 1-10, alleging, among other things, that the nursing home,

along with the John Doe defendants, “negligently and/or recklessly, directly and

proximately caused personal injury to Sara Kimiagarova.” Dubson alleged that, while

under the nursing home’s care, Sara “suffered numerous falls” and became very ill and

was not properly cared for. Dubson further asserted a negligent hiring and supervision

count against the nursing home. The nursing home denied the allegations.

{¶3} In the course of discovery, a dispute arose between the parties regarding,

among other things, the personnel files of several employees and consultants to the

nursing home. Dubson moved to compel the production of the files, and the nursing

home sought a protective order from their disclosure. The trial court held a hearing on

the matter, requested the parties to brief the matter further, and ordered the nursing home to submit the requested documents to the court for an in camera inspection. The court

also ordered the nursing home to submit a privilege log.

{¶4} On June 22, 2011, the nursing home submitted the documents along with a

privilege log for the trial court’s review.

{¶5} The trial court ultimately denied the nursing home’s motion for a protective

order but granted Dubson’s motion as it pertained to the production of the personnel files.

{¶6} From this decision, the nursing home appeals, raising the following three

assignments of error:

“[I.] The trial court abused its discretion by compelling the production of privileged

documents under R.C. 2317.02 and the work product doctrine.

“[II.] The trial court abused its discretion by compelling the production of non-party

private medical and financial information contained in personnel files.

“[III.] The trial court abused its discretion by compelling the production of

non-party nursing home resident identity and medical information contained in personnel

files.”

Attorney-Client Privilege and Work Product

{¶7} In its first assignment of error, the nursing home argues that the trial court

abused its discretion in ordering the production of documents subject to the attorney-client

privilege as well as the work-product privilege.

{¶8} Civ.R. 26(B)(1) permits parties to obtain discovery “regarding any matter,

not privileged, which is relevant to the subject matter involved in the pending action.” {¶9} This court reviews the assertion of an alleged privilege de novo. Ward v.

Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13; Sutton v.

Stevens Painton Corp., 193 Ohio App.3d 68, 2011-Ohio-841, 951 N.E.2d 910, ¶ 12 (8th

Dist.). Regarding work product, however, the Ohio Supreme Court also has explained

that “the determination of whether materials are protected by the work-product doctrine

and the determination of ‘good cause’ under Civ.R. 26(B)(3), are ‘discretionary

determinations to be made by the trial court.’” Sutton at ¶ 12, quoting State ex rel.

Greater Cleveland Regional Transit Auth. v. Guzzo, 6 Ohio St.3d 270, 271, 452 N.E.2d

1314 (1983). Discretionary decisions are reviewed under an abuse of discretion

standard of review. Id.

{¶10} Initially, we note that the nursing home objected to the production of the

personnel files on the basis that such files were (1) irrelevant, (2) confidential, and (3)

that the production of the files contravened the nursing home’s policy as contained in its

employee handbook. This was the nursing home’s primary argument in opposing

Dubson’s motion to compel and its basis for seeking a protective order. The nursing

home, however, now claims that the production of the personnel files violates the

work-product doctrine. But we fail to find anywhere in the privilege log where the

nursing home asserted this claim. This argument is therefore waived. See, e.g., Ingram

v. Adena Health Sys., 149 Ohio App.3d 447, 452, 2002-Ohio-4878, 777 N.E.2d 901 (4th

Dist.) (holding that failure to raise confidentiality of drug-treatment records waives the

argument on appeal). {¶11} Although the nursing home broadly asserted attorney-client privilege in its

privilege log with respect to the production of three documents contained in three

different employee personnel files, the nursing home failed to offer any argument in

support of its claim that the documents were privileged. Instead, the nursing home

solely identified the documents as either “attorney correspondence” or “attorney letter to

employee” and objected to their production on the basis of “attorney-client privilege and

irrelevant.”

{¶12} Even on appeal, the nursing home fails to explain how these documents fall

within the attorney-client privilege. We do not even know if the correspondence was

between the employee and the employee’s personal attorney. The presence of these

letters in the employees’ personnel files in and of itself raises a question as to whether the

employees waived the privilege and published the information to their employer.

Regardless, we do not have the documents on appeal to review and therefore are unable to

conclude that the trial court erred in ordering their release. See Lunato v. Stevens

Painton Corp., 9th Dist. No. 08CA009318, 2008-Ohio-3206, ¶ 11.

{¶13} Based on the record before us, we cannot conclude that the trial court erred

in ordering the production of these three letters. Accordingly, the first assignment of

error is overruled.

Private Medical and Financial Information of Nonparties

{¶14} In its second assignment of error, the nursing home argues that the trial

court abused its discretion in ordering the production of private medical and financial

information contained in nonparty personnel files. {¶15} Despite its argument on appeal, we note that the nursing home never raised

physician-client privilege as an objection to the release of the medical records. Nor did

it raise any other privilege with respect to the financial information. Instead, the nursing

home objected to the release of these documents as being “irrelevant, immaterial, subject

to confidentiality policy” and, in some instances, as being “unfairly prejudicial.” The

nursing home further identified certain federal acts, i.e., the Health Insurance Portability

and Accountability Act (“HIPAA”) and the Graham-Leach-Bliley Act, which contain

certain safeguards regarding the disclosure of the private medical and financial

information involved, in support of its objection.

{¶16} Because no statutory privilege is asserted with respect to these documents,

we review the trial court’s decision under an abuse of discretion. See State ex rel. The

V. Cos. v Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998). Indeed, the

management of discovery orders rests within the discretion of the trial court and will not

be disturbed absent an abuse of discretion. Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d

578, 592, 664 N.E.2d 1272 (1996). Likewise, the decision whether to grant or deny a

protective order is within the trial court’s discretion and therefore reviewed under an

abuse of discretion standard. Ruwe v. Bd. of Springfield Twp. Trustees, 29 Ohio St.3d

59, 61, 505 N.E.2d 957 (1987). An abuse of discretion implies that the court’s attitude

is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

{¶17} In resolving this assignment of error, we find that the answer lies within the

scope of discovery. Pursuant to Civ.R. 26(B)(1), parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending

action. It is not ground for objection that the information sought will be inadmissible at

the trial as long as the information appears reasonably calculated to lead to the discovery

of admissible evidence. Roe v. Planned Parenthood S.W. Ohio Region, 122 Ohio St.3d

399, 2009-Ohio-2973, 912 N.E.2d 61, ¶ 27. But overly broad requests that amount to

nothing more than a “fishing expedition” fall outside the scope of Civ.R. 26. See, e.g.,

Mason v. Booker, 185 Ohio App.3d 19, 2009-Ohio-6198, 922 N.E.2d 1036 (10th Dist.).

{¶18} Our review of the privilege log reveals that the trial court ordered the release

of all documents contained in the employees’ personnel files, including all medical

records, such as vaccination records, blood test results, TB test screening results, and

pregnancy records, as well as financial documents containing either bank account

information or social security numbers. We find that the trial court’s blanket release of

all the medical and financial records contained in the personnel files was unreasonable.

{¶19} We fail to find any argument asserted in the trial court proceedings below

demonstrating a need or even a request for the medical records of these employees — all

whom were nonparties to the underlying action. In fact, in responding to the nursing

home’s argument that turning over the personnel files would violate HIPAA, Dubson

repeatedly countered that “HIPAA does not prevent the disclosure of non-medical,

personnel information.” (Emphasis added.) Her responses indicated that she was not

seeking the medical records. Instead, Dubson repeatedly represented to the court that

she was seeking the personnel files to obtain information related to matters that were relevant to her claim for “negligent investigation, interviewing, hiring, training,

supervision, and retention” — matters such as the employees’ qualifications, work

history, evaluations, work performance, and disciplinary action. While we agree that

documents pertaining to the employees’ work history and performance would be relevant

to Dubson’s claim, we find that the trial court abused its discretion in ordering the release

of the employees’ medical records as part of Dubson’s broad request for the personnel

files.

{¶20} Indeed, medical records are generally privileged documents that are not

subject to discovery absent an exception or a showing that they are necessary to protect or

further a countervailing interest that outweighs the privilege. See Whitt v. ERB Lumber,

156 Ohio App.3d 518, 2004-Ohio-1302, 806 N.E.2d 1034 (2d Dist.); R.C. 2317.02(B).

In nearly identical circumstances, the Second District held that the plaintiff was not

entitled to files held by the defendant-employer, which contained medical records of

employees not parties to the action, because such medical records were privileged.

Whitt at ¶ 29. Although the trial court in this case held an in camera inspection of all the

personnel files, we find no support in the record to justify the release of the medical

records contained in the personnel files.

{¶21} Similarly, we find that the trial court abused its discretion in ordering the

release of bank routing numbers, pay scale information, and social security numbers

contained in the personnel files. There is absolutely no reason that Dubson needs this

sensitive information. While we recognize that a plaintiff may be entitled to obtain the

social security number of a nonparty when the plaintiff’s interest in disclosure outweighs the nonparty’s interest in confidentiality, this is not the case. See Hart v. Alamo Rent A

Car, 195 Ohio App.3d 167, 2011-Ohio-4099, 959 N.E.2d 15 (8th Dist.). Indeed,

throughout the briefing done below, and even on appeal, Dubson has indicated that she

did not need the social security numbers, agreeing that such information should be

redacted from the documents. Dubson further states in her appellee brief that she has no

objection to the redaction of bank accounts and pay scale information. We therefore

order that the social security numbers, bank account, and pay scale information be

redacted in those documents contained in the personnel files.

{¶22} The second assignment of error is sustained.

Nursing Home Residents’ Information

{¶23} In its final assignment of error, the nursing home argues that the trial court

abused its discretion by ordering the production of nursing home resident information

contained in the personnel files. The nursing home urges this court to at least require the

exclusion of any reference to residents. The record reveals, however, that Dubson

agreed to do as much as stated in her brief in support of her motion to compel and brief in

opposition to the protective order filed on June 29, 2011. Specifically, Dubson stated

that “[p]laintiff has no objection to personal information about the identities of residents

other than Sara Kimiagarova being redacted from their files.”

{¶24} Given that Dubson was not even seeking this information and the privacy

interests of these other residents that are at stake, we find that the trial court abused its

discretion by not specifically ordering the redaction of any reference to other nursing

home residents in the documents. The third assignment of error is sustained. {¶25} Judgment affirmed in part and reversed in part. The trial court is instructed

to specifically order the redaction of employees’ social security numbers and bank

account information, as well as references to any other nursing home residents contained

in any documents in the personnel files. Employees’ medical records and pay scale

information are ordered to be withheld. All other documents, including the three letters

identified in the first assignment of error, are ordered to be released as indicated in the

trial court’s judgment entry.

It is ordered that the parties share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR