[Cite as Harvey v. KP Properties, Inc., 2012-Ohio-276.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97097
JOSIAH HARVEY PLAINTIFF-APPELLANT
vs.
KP PROPERTIES, INC., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-748266
BEFORE: Sweeney, P.J., Jones, J., and Kilbane, J. RELEASED AND JOURNALIZED: January 26, 2012
ATTORNEY FOR APPELLANT
Brian D. Spitz, Esq. The Spitz Law Firm, LLC 4568 Mayfield Road, Suite 102 Cleveland, Ohio 44121
ATTORNEY FOR APPELLEES
John R. Christie, Esq. Stefanik & Christie 2450 One Cleveland Center 1375 East Ninth Street Cleveland, Ohio 44114
JAMES J. SWEENEY, P.J.:
{¶ 1} Plaintiff-appellant Josiah Harvey (“Harvey”) appeals the court’s granting
defendants-appellees KP Properties, Inc., et al.’s (“KP”) motion to compel discovery and
denying Harvey’s motion for a protective order. After reviewing the facts of the case
and pertinent law, we reverse and remand for an evidentiary hearing or an in camera
inspection to determine whether the motion to compel grants discovery of privileged
information.
{¶ 2} In March 2009, Harvey filed a workers’ compensation claim after he was
injured on the job during his employment as a maintenance worker with KP. In June
2009, KP fired Harvey. Harvey’s workers’ compensation claim was denied at the
administrative level, and he appealed to the common pleas court in October 2009. In November 2009, Harvey filed a complaint against KP alleging retaliation based on
wrongful termination; this complaint was voluntarily dismissed without prejudice in April
2010. On June 22, 2010, Harvey and KP settled the workers’ compensation case. As
part of this settlement, Harvey agreed to dismiss the workers’ compensation complaint
against KP, and both parties agreed that “all claims for work-related injury and/or
occupational disease(s) [which occurred on or before June 22, 2010] be forever
relinquished or discharged.”
{¶ 3} On February 9, 2011, Harvey refiled his retaliation claim against KP,
alleging that “[t]here was a causal connection between Harvey’s filing of the Workers’
Compensation claim and his termination.” KP opposed this refiled retaliation claim on
the basis that “a settlement was reached relative to a companion worker’s compensation
case, with the understanding that this [retaliation] matter would not be refiled.”
{¶ 4} On July 18, 2011, KP filed a motion to compel “complete responses” to
various discovery requests; however, a copy of the discovery requests propounded upon
Harvey was not made a part of the record. One day later, on July 19, 2011, KP issued a
subpoena for the deposition of Alan Harris, who was Harvey’s attorney in the workers’
compensation case. On July 25, 2011, Harvey filed a motion in opposition to KP’s
motion to compel and a motion for a protective order, alleging, among other things, that
the requested information violated the attorney-client and work-product privileges. Also
on July 25, 2011, the court granted KP’s motion to compel and denied Harvey’s motion
for a protective order. It is from this interlocutory order that Harvey appeals, raising three assignments of error for our review. Assignments of error one and three will be
addressed together.
{¶ 5} I. “The trial court committed reversible error when it ordered the
production of privileged materials and testimony.”
{¶ 6} III. “The trial court committed reversible error by not holding an
evidentiary hearing or in camera inspection before ordering the production of provileged
material and testimony.”
{¶ 7} Although discovery orders are generally not appeable, if the dispute
concerns disclosure of allegedly privileged material, the judgment is a final, appealable
order pursaunt to R.C. 2502.02(A)(3) and (B)(4). Furthermore, “whether the
information sought is confidential and privileged from disclosure is a question of law that
is reviewed de novo.” Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,
2009-Ohio-2496, 909 N.E.2d 1237, ¶13.
{¶ 8} In the instant case, Harvey argues that the discovery requests at issue
involve information protected by the attorney-client and/or work-product privileges.
{¶ 9} In Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d
487, ¶7, fn. 1, the Ohio Supreme Court explained the attorney-client privilege:
R.C. 2317.02(A) provides a testimonial privilege — i.e., it prevents an attorney from testifying concerning communications made to the attorney by a client or the attorney’s advice to a client. A testimonial privilege applies not only to prohibit testimony at trial, but also to protect the sought-after communications during the discovery process. {¶ 10} In Sutton v. Stevens Painton Corp., 193 Ohio App.3d 68, 2011-Ohio-841,
951 N.E.2d 91, ¶25-26 (8th Dist.), this court held that the
work-product doctrine, which is set forth under Civ.R. 26(B)(3), provides a qualified privilege that protects an attorney’s mental processes in the preparation of litigation. * * * [It] encompasses materials prepared in anticipation of litigation or for trial, and allows for the discovery of work product “only upon a showing of good cause therefor.” Civ.R. 26(B)(3).
{¶ 11} This court has held that it is reversible error when a trial court fails to hold an
evidentiary hearing or conduct an in camera review concerning discovery disputes alleging
work-product privilege, because “the record is insufficiently developed to determine whether the
documents requested in the subpoena violate the work-product doctrine.” Chiasson v. Doppco
Dev., L.L.C., 8th Dist. No. 93112, 2009-Ohio-5013, 2009 WL 3043386, ¶13. See also Grace v.
Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608 (1st Dist.), (applying this
standard to materials allegedly protected by the attorney-client privilege).
{¶ 12} It is undisputed that the court in the case at hand did not hold an evidentiary
hearing or conduct an in camera review of the requested material. Furthermore, neither KP’s
discovery requests nor Harvey’s answers are part of the record. Accordingly, this matter must
be remanded to the trial court for a determination of whether the motion to compel grants
discovery of privileged information.
{¶ 13} Harvey also argues on appeal that, notwithstanding the aforementioned
privileges, the discovery sought is inadmissible under the parol evidence rule.
Concerning non-privileged matters, we review discovery orders under an abuse of discretion standard. DeMeo v. Provident Bank, 8th Dist. No. 89442, 2008-Ohio-2936,
2008 WL 2426559.
The parol evidence rule is a rule of substantive law that prohibits a party who has entered into a written contract from contradicting the terms of the contract with evidence of alleged or actual agreements. “When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.” Ed Schory & Sons, Inc. v. Soc. Natl.
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[Cite as Harvey v. KP Properties, Inc., 2012-Ohio-276.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97097
JOSIAH HARVEY PLAINTIFF-APPELLANT
vs.
KP PROPERTIES, INC., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-748266
BEFORE: Sweeney, P.J., Jones, J., and Kilbane, J. RELEASED AND JOURNALIZED: January 26, 2012
ATTORNEY FOR APPELLANT
Brian D. Spitz, Esq. The Spitz Law Firm, LLC 4568 Mayfield Road, Suite 102 Cleveland, Ohio 44121
ATTORNEY FOR APPELLEES
John R. Christie, Esq. Stefanik & Christie 2450 One Cleveland Center 1375 East Ninth Street Cleveland, Ohio 44114
JAMES J. SWEENEY, P.J.:
{¶ 1} Plaintiff-appellant Josiah Harvey (“Harvey”) appeals the court’s granting
defendants-appellees KP Properties, Inc., et al.’s (“KP”) motion to compel discovery and
denying Harvey’s motion for a protective order. After reviewing the facts of the case
and pertinent law, we reverse and remand for an evidentiary hearing or an in camera
inspection to determine whether the motion to compel grants discovery of privileged
information.
{¶ 2} In March 2009, Harvey filed a workers’ compensation claim after he was
injured on the job during his employment as a maintenance worker with KP. In June
2009, KP fired Harvey. Harvey’s workers’ compensation claim was denied at the
administrative level, and he appealed to the common pleas court in October 2009. In November 2009, Harvey filed a complaint against KP alleging retaliation based on
wrongful termination; this complaint was voluntarily dismissed without prejudice in April
2010. On June 22, 2010, Harvey and KP settled the workers’ compensation case. As
part of this settlement, Harvey agreed to dismiss the workers’ compensation complaint
against KP, and both parties agreed that “all claims for work-related injury and/or
occupational disease(s) [which occurred on or before June 22, 2010] be forever
relinquished or discharged.”
{¶ 3} On February 9, 2011, Harvey refiled his retaliation claim against KP,
alleging that “[t]here was a causal connection between Harvey’s filing of the Workers’
Compensation claim and his termination.” KP opposed this refiled retaliation claim on
the basis that “a settlement was reached relative to a companion worker’s compensation
case, with the understanding that this [retaliation] matter would not be refiled.”
{¶ 4} On July 18, 2011, KP filed a motion to compel “complete responses” to
various discovery requests; however, a copy of the discovery requests propounded upon
Harvey was not made a part of the record. One day later, on July 19, 2011, KP issued a
subpoena for the deposition of Alan Harris, who was Harvey’s attorney in the workers’
compensation case. On July 25, 2011, Harvey filed a motion in opposition to KP’s
motion to compel and a motion for a protective order, alleging, among other things, that
the requested information violated the attorney-client and work-product privileges. Also
on July 25, 2011, the court granted KP’s motion to compel and denied Harvey’s motion
for a protective order. It is from this interlocutory order that Harvey appeals, raising three assignments of error for our review. Assignments of error one and three will be
addressed together.
{¶ 5} I. “The trial court committed reversible error when it ordered the
production of privileged materials and testimony.”
{¶ 6} III. “The trial court committed reversible error by not holding an
evidentiary hearing or in camera inspection before ordering the production of provileged
material and testimony.”
{¶ 7} Although discovery orders are generally not appeable, if the dispute
concerns disclosure of allegedly privileged material, the judgment is a final, appealable
order pursaunt to R.C. 2502.02(A)(3) and (B)(4). Furthermore, “whether the
information sought is confidential and privileged from disclosure is a question of law that
is reviewed de novo.” Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,
2009-Ohio-2496, 909 N.E.2d 1237, ¶13.
{¶ 8} In the instant case, Harvey argues that the discovery requests at issue
involve information protected by the attorney-client and/or work-product privileges.
{¶ 9} In Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d
487, ¶7, fn. 1, the Ohio Supreme Court explained the attorney-client privilege:
R.C. 2317.02(A) provides a testimonial privilege — i.e., it prevents an attorney from testifying concerning communications made to the attorney by a client or the attorney’s advice to a client. A testimonial privilege applies not only to prohibit testimony at trial, but also to protect the sought-after communications during the discovery process. {¶ 10} In Sutton v. Stevens Painton Corp., 193 Ohio App.3d 68, 2011-Ohio-841,
951 N.E.2d 91, ¶25-26 (8th Dist.), this court held that the
work-product doctrine, which is set forth under Civ.R. 26(B)(3), provides a qualified privilege that protects an attorney’s mental processes in the preparation of litigation. * * * [It] encompasses materials prepared in anticipation of litigation or for trial, and allows for the discovery of work product “only upon a showing of good cause therefor.” Civ.R. 26(B)(3).
{¶ 11} This court has held that it is reversible error when a trial court fails to hold an
evidentiary hearing or conduct an in camera review concerning discovery disputes alleging
work-product privilege, because “the record is insufficiently developed to determine whether the
documents requested in the subpoena violate the work-product doctrine.” Chiasson v. Doppco
Dev., L.L.C., 8th Dist. No. 93112, 2009-Ohio-5013, 2009 WL 3043386, ¶13. See also Grace v.
Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608 (1st Dist.), (applying this
standard to materials allegedly protected by the attorney-client privilege).
{¶ 12} It is undisputed that the court in the case at hand did not hold an evidentiary
hearing or conduct an in camera review of the requested material. Furthermore, neither KP’s
discovery requests nor Harvey’s answers are part of the record. Accordingly, this matter must
be remanded to the trial court for a determination of whether the motion to compel grants
discovery of privileged information.
{¶ 13} Harvey also argues on appeal that, notwithstanding the aforementioned
privileges, the discovery sought is inadmissible under the parol evidence rule.
Concerning non-privileged matters, we review discovery orders under an abuse of discretion standard. DeMeo v. Provident Bank, 8th Dist. No. 89442, 2008-Ohio-2936,
2008 WL 2426559.
The parol evidence rule is a rule of substantive law that prohibits a party who has entered into a written contract from contradicting the terms of the contract with evidence of alleged or actual agreements. “When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.” Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 440, 662 N.E.2d 1074 (1996), quoting 3 Corbin, Corbin on Contracts, Section 573, 357 (1960).
{¶ 14} The parol evidence rule applies to the admissibility of evidence, which is
not necessarily the same concept as the discoverability of evidence. 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, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party * * *. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
{¶ 15} Because this case is being remanded for an evidentiary hearing and the case
is still in the discovery phase, we find it premature to entertain the parol evidence rule in
this interlocutory appeal. Harvey’s third assignment of error is sustained and this case is
remanded to the trial court for an evidentiary hearing or an in camera inspection.
Harvey’s first assignment of error is moot pursuant to App.R.12(A)(1)(c).
{¶ 16} In Harvey’s second assignment of error, he argues as follows: {¶ 17} II. “The trial court committed reversible error when it failed to enforce
Civ.R. 37(E) and Loc.R. 11(F).”
{¶ 18} Specifically, Harvey argues that KP failed to attach a statement to its
motion to compel detailing the efforts it made to resolve the discovery disputes between
the parties.
{¶ 19} Civ.R. 37(E) states,
Before filing a motion authorized by this rule, the party shall make a reasonable effort to resolve the matter through discussion with the attorney, unrepresented party, or person from whom discovery is sought. The motion shall be accompanied by a statement reciting the efforts made to resolve the matter in accordance with this section.
{¶ 20} Similarly, Loc.R. 11(F) states that a motion to compel may not be
considered by the court
unless the party seeking discovery [advised] the Court in writing that after personal consultation and sincere attempts to resolve differences they are unable to reach an accord. The statement shall recite those matters which remain in dispute, and in addition, the date, time and place of such conference, and the names of all the participating parties.
{¶ 21} In the instant case, KP included the following in its motion to compel:
[T]here have been numerous telephone calls, face-to-face meetings, and letters indicating and requesting complete responses to the discovery. These conversations have taken place over approximately two months after Plaintiff responded to the discovery. The specific areas of inquiry where objections exist relate to the terms and conditions of the settlement agreement entered into, the Plaintiff’s understanding of the same, the fees relative to the same, and any discussions outside of this claim relevant to the same.
{¶ 22} This allegation of error does not concern whether the information sought to be
discovered is privileged. Furthermore, because we are remanding this case for further proceedings, this discovery dispute is ongoing. Therefore, while the trial court may consider
Civ.R. 37 and Loc.R. 11 on remand, we hold that appellate review of this issue is premature
under the circumstances. Harvey’s second assignment of error is overruled.
{¶ 23} Judgment reversed and case remanded for an evidentiary hearing or an in camera
inspection.
It is, therefore, considered that said appellant recover of said appellees its costs herein.
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.
JAMES J. SWEENEY, PRESIDING JUDGE
LARRY A. JONES, J., and MARY EILEEN KILBANE, J., CONCUR