[Cite as Jergens v. Jergens, 2026-Ohio-2852.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
ANDREW JERGENS : : C.A. No. 30673 Appellee : : Trial Court Case Nos. 2023 CV 2052; v. : 2025 CV 716; 2025 CV 1887 : BRIAN JERGENS TRUSTEE AND REP : (Civil Appeal from Common Pleas OF ESTATE OF WILLIAM P ET AL. : Court) : Appellants : FINAL JUDGMENT ENTRY & OPINION ...........
Pursuant to the opinion of this court rendered on July 24, 2026, the judgment of the
trial court is reversed, and the matter is remanded for further proceedings consistent with
the opinion.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
send a copy of the court’s ruling to each party and note that action on the docket.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
For the court,
ROBERT G. HANSEMAN, JUDGE
LEWIS, P.J., and HUFFMAN, J., concur. OPINION MONTGOMERY C.A. No. 30673
AUGUST T. JANSZEN, Attorney for Appellants ANTHONY J. HORNBACH and BENJAMIN S. SANDLIN, Attorneys for Appellee
HANSEMAN, J.
{¶ 1} Defendant-appellants, John Stachler, Gregg Devilbiss, and Robert Dix, appeal
from the Montgomery County Common Pleas Court’s judgment granting plaintiff-appellee’s
motion to compel discovery and determining that appellants’ assertions of attorney-client
and work product privileged materials had been waived. For the reasons stated in this
opinion, the judgment is reversed.
I. Facts and Course of Proceedings
{¶ 2} William P. Jergens (“Bill”) established and owned the businesses of R.B.
Jergens Contractors, Inc. (“RBJ”), and 309 Holdings, LLC (“309”). His sons Andrew Jergens
(“Andrew”) and Brian Jergens (“Brian”) were five percent non-managing members of 309,
and Andrew held a minority interest in RBJ. For years, if not decades, Bill consulted with
John Stachler, his attorney, and Gregg Devilbiss, his financial advisor and accountant.
Robert Dix is the current president of RBJ.
{¶ 3} In April 2023, Andrew filed his complaint in Montgomery County C.P. No. 2023
CV 2052, alleging numerous claims for relief against Bill, RBJ and 309. The complaint
asserted that, for years, Bill had wrongfully misappropriated the corporate assets of RBJ and
309. Stachler entered a notice of appearance as counsel for Bill, RBJ, and 309 in the suit.
{¶ 4} Bill passed away in December 2023. Prior to his death, Bill created the William
P. Jergens Third Amended and Restated Revocable Trust (“the trust”). Bill’s son Brian was
2 named trustee. The trust designated Stachler, Devilbiss, and Dix, Bill’s professional
business trust advisors (“BTA”), to aid Brian as trustee.
{¶ 5} In February 2025, Andrew filed a second action in Warren County, which was
transferred to Montgomery County and designated Montgomery County C.P. No. 2025 CV
716. In his second action, Andrew alleged claims against Brian both as representative of
Bill’s estate and as trustee of the trust. On February 21, 2025, Andrew filed his first amended
complaint adding additional defendants: Stachler, Dix, and Devilbiss (collectively, “the
BTAs”). Setting forth numerous claims, Andrew alleged that the trust, Brian, and/or the BTAs
conspired to tortiously interfere with his business relations involving RBJ and 309. Andrew
also alleged that the trust, the BTAs, and/or Brian transferred interests and attempted a
sham merger transaction involving RBJ and 309.
{¶ 6} The BTAs retained counsel and filed a motion to dismiss and motion for
sanctions on April 4, 2025. According to numerous motions filed, Stachler remained lead
counsel for RBJ and 309 in Case No. 2023 CV 2052.
{¶ 7} On April 9, 2025, the BTAs filed a motion to stay discovery pending the outcome
of the motion to dismiss and motion for sanctions. In the motion to stay discovery, the BTAs
asserted, in part, that “[a] decision on the pending motion [to dismiss] will establish not only
the scope of discovery (if any) but the parameters of various discovery matters and disputes,
including the attorney-client privilege and work product doctrine.” Case No. 2025 CV 716,
Motion to Stay Discovery, p. 2. The trial court did not issue a decision regarding this motion.
{¶ 8} On April 17, 2025, Andrew served his first discovery requests on the BTAs,
which consisted of interrogatories, requests for admission, and a request for production of
documents. Each BTA responded to each request for admission as follows:
RESPONSE: Objection. This Request for Admission seeks information that is
3 protected by discovery by the Attorney-Client Privilege, the Work Product
Doctrine, and/or Civil Rule 26. This Request for Admission is also
objectionable because this discovery is subject to a pending Motion to Stay
Discovery, filed prior to the service of this discovery, which remains pending
for adjudication. Answering in part over the stated objections and without
waiving the same, Defendant will seasonably supplement his response to this
Request for Admission upon the adjudication of Defendants’ Motion to Stay
Discovery.
{¶ 9} The BTAs did not respond to the request for documents or interrogatories and
did not provide a privilege log. In email or telephone communications, the BTAs
communicated that responses were impossible due to attorney-client privilege and work
product.
{¶ 10} On July 16, 2025, Andrew moved to compel discovery against the BTAs,
requesting, in part, that the court determine that the BTAs had “waived all objections” to his
first set of interrogatories and requests for production of documents. On July 28, 2025, the
BTAs moved for a protective order, again seeking a stay of discovery until the pending
motions before the court were determined. In their motion for a protective order, the BTAs
stated, among other things:
[U]ntil such time as the Court rules on the pending motions, there are
numerous unresolved discovery, attorney-client privilege, and work product
issues, which will need to be addressed . . . . Presently, Plaintiffs are seeking
to compel admissions, information, and document production, from the lead
trial counsel for the Company (Mr. Stachler), in his individual capacity. . . .
[U]nless and until this Court decides the pending motions, every
4 correspondence between counsel is now evidence and an admission by a
party opponent. Plaintiff’s counsel continues to contact Mr. Stachler, in his
capacity as trial counsel for the Company, even though Mr. Stachler is now a
party represented by counsel. Presumably, the parties and their future, not-
yet-retained trial counsel of record will need to retake depositions and file
additional discovery motions, seeking to protect attorney-client privilege, work
product, and other documents and information protected by Civ.R. 26. These
issues are merely the proverbial “tip of the iceberg” in sorting through the
procedural, discovery, and evidentiary issues arising in a case where the trial
attorneys of record become parties to the case in which they represented
originally clients for more than two years.
Case No. 2023 CV 2052, Motion for Protective Order, p. 3.
{¶ 11} Two days later, on July 30, 2025, the BTAs filed a brief in opposition to
Andrew’s motion to compel and renewed their motion for a protective order. In their renewed
motion, the BTAs stated:
Plaintiff’s discovery requests improperly seek materials protected from
discovery by the Attorney-Client Privilege and the Work Product Doctrine, and
the discovery relates to legally unsupported and unprecedented theories of
third party liability. More specifically, Plaintiff has sued the legal, business, and
accounting professionals of another party in this litigation (the Trust), joining
the lead trial counsel of yet another party (R.B. Jergens) and the entire
professional advisory team for the Trust. Even ignoring the lack of good
grounds to support such claims against the Professional Advisors, the
documents and information are within the personal possession of the legal,
5 financial, and business advisors (as the attorney, agents, and advisors for the
Trust in corporate, contractual, and other legal matters) are not discoverable
directly from the Professional Advisors.
...
In terms of the discovery issues, literally all of Plaintiff’s discovery
requests raise issues of Attorney-Client Privilege and Work Product Doctrine.
As just a few examples, in Request for Admission Nos. 1 through 5, Plaintiff
seeks admissions from Attorney John Stachler, relative to the corporate
entities and transactions involved in the third lawsuit, R.B. Jergens, Inc. v.
Andrew Jergens, Montgomery County C.P. No. 2025 CV 011887. In Request
for Admission Nos. 5 and 6, Plaintiff requests that Attorney John Stachler, as
the legal advisor for the Trust, disclose his legal advice to the Trust (if any).
Request for Admission No. 7 directly requests that Attorney John Stachler
disclose the subject of his communications with his client. Likewise, the
Document Requests explicitly request that Attorney John Stachler, in his
individual capacity, produce his client’s files, documents, and information.
Interrogatories Nos. 7-9 seek the full disclosure of attorney-client information,
including a detailed description of meetings and the advice rendered. Indeed,
Plaintiff explicitly demands information relative to legal advice by Mr. Stachler
to R.B. Jergens. See Interrogatories Nos. 10, 12, 13, 16, and 17. Plaintiff
explicitly asks for “[a]ll documents relating to communications concerning or
relating to” RBJ and 309 Holdings, relative to their corporate transactions. See
Document Requests Nos. 4-16.
6 Case No. 2023 CV 2052, Opposition to Motion to Compel Discovery and Renewed Motion
for Protective Order, p. 5, 7-8.1
{¶ 12} The trial court scheduled Andrew’s motion to compel and the BTAs’ motion for
a protective order for an oral argument on September 9, 2025. Presumably because the
motions were scheduled for oral argument, the BTAs did not present evidence or witness
testimony to the court. At the conclusion of the argument, the BTAs did not request an
additional hearing to present evidence or request an in camera inspection. Likewise, the
court did not ask questions regarding specific documents or evidence that the BTAs claimed
were privileged and did not schedule an in camera inspection or further evidentiary hearing.
Therefore, the trial court did not determine whether any evidence withheld by the BTAs was,
in fact, privileged or work product.
{¶ 13} Instead, on October 13, 2025, the trial court filed its decision sustaining
Andrew’s motion to compel discovery and overruling the BTAs’ motion for a protective order.
The trial court determined the BTAs had waived their right to assert any privileges by failing
to timely assert the privileges in their discovery responses or provide a privilege log. The
trial court also determined that the BTAs had waived their right to a protective order by failing
to file it in a timely manner. This appeal followed on November 6, 2025.
1. The original judge assigned to Case No. 2023 CV 2052 retired in December 2024, and at the time of the motion to compel and opposition filings, a visiting judge was sitting by assignment. Case No. 2025 CV 716 had been assigned to another judge. In May 2025, the two cases were consolidated before the visiting judge. On July 30, 2025, the retired judge’s replacement was appointed by Governor Mike DeWine, and the newly appointed judge took over the consolidated cases.
7 {¶ 14} On December 15, 2025, we issued an order that limited the scope of this
appeal.2 The sole question before us is whether the trial court’s October 13, 2025 decision
sustaining the motion to compel discovery and overruling the motion for a protective order
requires disclosure of privileged material.
{¶ 15} The BTAs raise three assignments of error:
1. The trial court abused its discretion in failing to grant appellants’
motion to stay discovery/motion for protective order.
2. The trial court erred in granting appellee’s motion to compel and
holding that appellants waived attorney-client privilege and work product.
3. The trial court erred in making findings of fact and ordering the
production of attorney-client privilege and work product documents without
conducting an evidentiary hearing or an in camera inspection.
II. Attorney / Client Privilege and Work Product
{¶ 16} “‘The attorney-client privilege is one of the oldest recognized privileges for
confidential communications.’” State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2005-Ohio-
1508, ¶ 19, quoting Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). “In Ohio,
the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are
not addressed in R.C. 2317.02(A), by common law.” Id. at ¶ 18. “‘Its purpose is to encourage
full and frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of justice. The privilege
recognizes that sound legal advice or advocacy serves the public ends and that such advice
2. The BTAs also appealed the order of the trial court that overruled their motion to dismiss. However, that decision is not a final appealable order, so we do not have jurisdiction to consider the decision.
8 or advocacy depends upon the lawyer’s being fully informed by the client.’” Id. at ¶ 20,
quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
{¶ 17} The pertinent part of R.C. 2317.02 provides that an attorney shall not testify
“concerning a communication made to the attorney by a client in that relation or concerning
the attorney’s advice to a client.” R.C. 2317.02(A)(1). The statute contains only two
exceptions to the testimonial privilege. Id. Those are when the client gives express consent
or, if the client is deceased, by the express consent of the surviving spouse, or the executor
or administrator of the estate of the deceased client. Id.
{¶ 18} While the statutory privilege provides a testimonial privilege, the common law
attorney-client privilege “protects against any dissemination of information obtained in the
confidential relationship.” American Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 348
(1991). The attorney-client privilege also applies to discovery and protects against attempts
to obtain documents or other information. Eddy v. Farmers Property Cas. Ins. Co., 2026-
Ohio-626, ¶ 28.
{¶ 19} Only a client can waive the attorney-client privilege, and R.C. 2317.02(A)
provides the exclusive means by which privileged communications can be waived. Jackson
v. Greger, 2006-Ohio-4968, paragraph one of the syllabus. The attorney-client privilege may
not be the subject of a judicially created waiver. Id.; State v. McDermott, 72 Ohio St.3d 570
(1995); Anton v. Flauto, 2024-Ohio-4788, ¶ 19 (8th Dist.) (“‘An attorney cannot waive the
attorney-client privilege on his client’s behalf.’”), quoting Teodecki v. Litchfield Twp., 2015-
Ohio-2309, ¶ 48
{¶ 20} “The work-product doctrine 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.’” Sutton v. Stevens Painton Corp., 2011-Ohio-841, ¶ 26 (8th Dist.),
9 quoting former Civ.R. 26(B)(3) (effective July 1, 2008). “‘[A]ttorney work product, including
but not limited to mental impressions, theories, and legal conclusions, may be discovered
upon a showing of good cause if it is directly at issue in the case, the need for the information
is compelling, and the evidence cannot be obtained elsewhere.’” (Brackets added in Sutton.)
Id., quoting Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 2010-Ohio-
4469, ¶ 60.
{¶ 21} It is with these important principles of law in mind that we turn to the BTAs’
assignments of error and the trial court’s decision, which granted Andrew’s motion to compel
without any limitations while at the same time applying the Rules of Civil Procedure and
deeming all privileges waived.
III. Discussion
{¶ 22} Discovery orders are generally reviewed under an abuse of discretion
standard. Med. Mut. of Ohio v. Schlotterer, 2009-Ohio-2496, ¶ 13, citing State ex rel. Sawyer
v. Cuyahoga Cty. Dept. of Children & Family Servs., 2006-Ohio-4574, ¶ 9. This standard
also applies to the review of a ruling on a motion to compel. Cochran Ohio LLC v.
Washington, 2023-Ohio-2212, ¶ 13 (2d Dist.). However, whether the information sought is
confidential and privileged from disclosure is a question of law subject to de novo review. Id.
{¶ 23} We do not have any discovery materials before us to review to determine
whether the discovery ordered to be produced by the trial court consists of protected
attorney-client matter or work product material. Without the documents, we cannot evaluate
the BTAs’ privilege claims and therefore express an opinion about the ultimate protection
and production of the information and documents.
{¶ 24} However, for purposes of this appeal, we assume the BTAs’ assertions of
privilege are true and conclude that the trial court’s decision to grant Andrew’s motion to
10 compel would require the BTAs to turn over attorney-client privileged materials and work
product. The trial court’s decision to deem that the BTAs had waived their privileges
necessarily created a discovery order so broad in scope that it encompassed all attorney-
client privileged materials and work product. Because the trial court determined that the
BTAs had waived all privileges, we apply an abuse of discretion standard to review this
aspect of the trial court’s decision granting Andrew’s motion to compel. As we explain below,
we conclude that the trial court abused its discretion.
A. The Privilege Log
{¶ 25} The trial court’s decision determined that the BTAs had failed to timely and
effectively assert their privileges by failing, in part, to provide a privilege log. The trial court
correctly cited Civ.R. 26(B)(8)(a), which provides that “[w]hen information subject to
discovery is withheld on a claim that it is privileged or subject to protection as trial preparation
materials, the claim shall be made expressly and shall be supported by a description of the
nature of the documents, communications, or things not produced that is sufficient to enable
the demanding party to contest the claim.” Civ.R. 26(B)(8)(a). Although a privilege log is
common practice, the Supreme Court of Ohio has recently stated that “[a privilege] log is not
always necessary to establish privilege.” Stull v. Summa Health Sys., 2024-Ohio-5718, ¶ 25,
citing State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 383 (1998) (“respondents were not
required to submit a ‘privilege log’ in order to preserve their claimed [attorney-client privilege]
exemptions”), and 2023 Staff Note, Civ.R. 26 (asserting a privilege under Civ.R. 26(B)(8)
often “entails preparation of a privilege log, but that may prove burdensome and expensive”).
11 {¶ 26} The Supreme Court of Ohio has further noted that Civ.R. 26(B)(8)(a) is
substantially similar to Fed.R.Civ.P. 26, and a committee note to the federal rule indicates
that
the best way to sufficiently describe allegedly privileged materials will depend
on the context:
The rule does not attempt to define for each case what
information must be provided when a party asserts a claim of
privilege or work product protection. Details concerning time,
persons, general subject matter, etc., may be appropriate if only
a few items are withheld, but may be unduly burdensome when
voluminous documents are claimed to be privileged or protected,
particularly if the items can be described by categories.
Id. at ¶ 24, quoting Committee Note to Fed.R.Civ.P. 26, 146 F.R.D. 401, 639.
{¶ 27} We therefore conclude that the trial court’s reliance, in part, on the absence of
a privilege log to determine that the BTAs had waived all privileges was improper.
B. Strict Assert It or Lose It “Per Se” Rule
{¶ 28} In determining that the BTAs had waived all privileges, the trial court applied a
strict construction of Civ.R. 26(B)(8)(a), 33, and 34. The trial court’s application of the rules
effectively requires a party to assert repeatedly, in multiple forms, their privileges and to
request a protective order within 28 days, or else they will be deemed to have waived the
right to assert privileges or to file for a protective order. Considering the procedural posture
of this case, we reject such a strict approach.
{¶ 29} The Rules of Civil Procedure are to be “construed and applied to effect just
results.” Civ.R. 1(B). A just result is not achieved when a trial court deems a party to have
12 waived their right to assert all privileges if that party fails to assert a privilege in response to
one form of a discovery request while it raises it in a different form of a discovery request
after filing a motion to stay discovery to protect their privileges.
{¶ 30} The Supreme Court of Ohio recently rejected the application by a trial court
and appellate court of an assert-it-or-forfeit-it-forever approach regarding the waiver of a
privilege. The Court explained:
The trial court and the appellate court both cited Bansal [v. Mount
Carmel Health Systems, Inc.], 2009-Ohio-6845 (10th Dist.), to indicate that
Summa had one of two methods to establish that Dr. Elashi’s residency file
was protected by the peer-review privilege: (1) submit the residency file for the
trial court to review in camera or (2) provide adequate information in an
affidavit to establish that the privilege attaches. See 2022-Ohio-457,
185 N.E.3d 141 at ¶ 6 (9th Dist.); Summit C.P. No. CV-2019-06-2259,
2021 WL 1550519, at *4. Both courts assumed that if a party opts to submit an
affidavit, and if the affidavit is lacking in any way, the party forfeits the privilege
claim and must disclose the disputed material. See 2022-Ohio-457,
185 N.E.3d 141 at ¶ 6 (9th Dist.); Summit C.P. No. CV-2019-06-2259,
2021 WL 1550519, at *4. The appellate court further indicated that the
ambiguities in Dr. Laipply’s affidavit required the conclusion that the peer-
review privilege did not apply, because “privileges must be strictly construed.”
2022-Ohio-457, 185 N.E.3d 141 at ¶ 16 (9th Dist.). We hold that neither Bansal
nor the strict construction of the peer-review privilege supported the trial court’s
decision to order Summa to disclose Dr. Elashi’s residency file.
13 . . . [T]he appellate court focused on the fact that certain details in the
affidavit were “not explained” or were “unclear,” 2022-Ohio-457, 185 N.E.3d
141 at ¶ 14-15 (9th Dist.). A lack of clarity in this context relates to the standard
that a claim of privilege “shall be supported by a description of the nature of
the documents, communications, or things not produced that is sufficient to
enable the demanding party to contest the claim,” Civ.R. 26(B)(8)(a). The
clarity requirement does not heighten Summa’s evidentiary burden under the
Civil Rules or force Summa into an all-or-nothing gamble.
(Footnote omitted.) Stull, 2024-Ohio-5718, at ¶ 27, 28.
{¶ 31} The Eighth District Court of Appeals has also declined to adopt a strict per se
waiver rule. Huntington Natl. Bank v. Dixon, 2010-Ohio-4668, ¶ 24 (8th Dist.). In Dixon, the
court explained:
“‘Failure to assert the privilege objection correctly can mean that the privilege
is waived.’ Given that such a result ‘could impose substantial and unjustified
burdens on litigants,’ however, most decisions regarding waiver due to failure
to provide an adequate privilege log tend to be very case-specific. While some
courts have held the failure to provide a privilege log within the applicable time
to constitute a waiver of the asserted privilege, other courts have specifically
‘reject[ed] a per se waiver rule that deems a privilege waived if a privilege log
is not produced.’ Indeed, in light of ‘the harshness of a waiver sanction,’ many
courts ‘have reserved the sanction for those cases where the offending party
committed unjustified delay in responding to discovery.’ Additionally, ‘[m]inor
procedural violations, good faith attempts at compliance, and other such
mitigating circumstances militate against finding waiver.’”
14 (Internal citations omitted in Dixon.) Id. at ¶ 24, quoting Berryman v. Supervalu Holdings,
Inc., 2008 WL 4934007, *10 (S.D.Ohio Nov. 18, 2008).
{¶ 32} Our review of the BTAs’ actions leads us to conclude that the BTAs’ procedural
violations were minor, and the circumstances militate against finding waiver. Here, the BTAs
filed a motion to stay discovery eight days before Andrew sent his first request for
interrogatories, admissions, and production of documents. Though the motion to stay was
not technically captioned as a motion for a protective order, motions for protective orders
encompass, in part, relief from discovery compliance. Civ.R. 26(C) (“Upon motion by any
party or by the person from whom discovery is sought, and for good cause shown, the court
in which the action is pending may make any order that justice requires to protect a party
. . . , including one or more of the following: (1) that the discovery not be had; (2) that the
discovery may be had only on specified terms and conditions . . . (4) that certain matters not
be inquired into or that the scope of the discovery be limited to certain matters”). The BTAs
indicated in their motion to stay that the adversarial parties disagreed regarding the scope
of discovery and had disputes over the attorney-client privilege and work product doctrine.
{¶ 33} The trial court failed to consider that the April 9, 2025 motion to stay discovery
was tantamount to a motion for a protective order, given that the relief sought was to stay
discovery. Under Civ.R. 37(D)(2), the BTAs’ failure to fully respond to the interrogatories or
document requests was excused pending their motion. See Civ.R. 37(D)(2) (“A failure
described in Civ.R. 37(D)(1)(a) is not excused on the ground that the discovery sought was
objectionable, unless the party failing to act has a pending motion for a protective order
under Civ.R. 26(C).”).
{¶ 34} The BTAs filed a motion to stay discovery before being served with formal
requests, timely responded to Andrew’s admissions by asserting attorney-client privilege
15 and work product, and, in July 2025, filed two additional motions for protective orders
seeking to stay discovery. The BTAs’ efforts, in our view, are sufficient to assert the attorney-
client and work product privileges and do not warrant the trial court’s harsh ruling, which
deemed that they had waived all privileges under the circumstances.
{¶ 35} We stress that trial courts have a duty to protect a party’s confidential and
privileged information even if a party engages in some misconduct during the discovery
process. Bennett v. Martin, 2009-Ohio-6195, ¶ 47 (10th Dist.). While the BTAs simply
asserted privileges in response to one form of discovery (the admissions) and not to the
other two forms of discovery (interrogatories and production of documents), their failure to
state in writing “objection attorney-client privilege and work product” to the interrogatories
and production of documents did not warrant the strict per se privilege waiver ruling of the
court.
{¶ 36} We agree with the general rule that “application of a privilege is not automatic.”
Chuparkoff v. Farmers Ins. of Columbus, Inc., 2004-Ohio-7185, ¶ 9 (9th Dist.), citing
McPherson v. Goodyear Tire & Rubber Co., 146 Ohio App.3d 441, 444 (9th Dist. 2001).
However, to the extent that the trial court applied the rule to the facts of this matter and that
Andrew requests that we follow these cases and affirm the trial court’s decision to compel
documents that are asserted to be attorney-client privileged and work product material, we
decline to do so.
C. Waiver of Privileges May Not Be Imposed As Discovery Sanction
{¶ 37} While not expressly stated in its decision, the trial court’s determination of
waiver imposes a discovery sanction. However, ordering the production of privileged
documents as a discovery sanction is reversable error and an abuse of discretion. Bautista
v. Kettering Health, 2025-Ohio-674, ¶ 14 (2d Dist.) (“Although trial courts have considerable
16 latitude in crafting sanctions for discovery violations (see Civ.R. 37), that discretion is not
unlimited and would exclude measures such as ordering the production of privileged
documents.”), citing Beck v. First Fin. Ins. Co., 2006-Ohio-3463 (12th Dist.) (holding that the
trial court erred by ordering the waiver of attorney-client privilege as a sanction for discovery
violations), and Bennett v. Martin, 2009-Ohio-6195, ¶ 47 (10th Dist.) (even when misconduct
occurs in discovery, the court must protect the defendant’s privileged information). Deeming
privilege claims waived is not one of the enumerated sanctions available or listed in
Civ.R. 37(B)(1)(a) through (f). Civ.R. 37(D)(3) (“Sanctions may include any of the orders
listed in Civ.R. 37(B)(1)(a) through (f).”).
D. In Camera Review
{¶ 38} Another troubling aspect of the trial court’s decision is that it did not conduct
an in camera inspection regarding the BTAs’ assertions of attorney-client privilege or work
product. In this regard, the trial court limited its own discretionary powers. The Supreme
Court of Ohio has stated
that “[i]n managing the progression of a case, a trial court has inherent
authority to use in camera review as a tool to resolve discovery disputes.”
Daher v. Cuyahoga Community College Dist., 155 Ohio St.3d 271, 2018-Ohio-
4462, 120 N.E.3d 830, ¶ 12, citing State ex rel. Grandview Hosp. & Med. Ctr.
v. Gorman, 51 Ohio St.3d 94, 95, 554 N.E.2d 1297 (1990). When a privilege
issue is complicated or unclear, “[a]n in camera inspection is only a minimal
first step” in resolving the issue of privilege. Gorman at 96, 554 N.E.2d 1297.
A trial court can take the step of in camera review, and any other step allowed
by the Civil Rules, given its inherent power to control discovery in general. See
id. at 95, 554 N.E.2d 1297; State ex rel. Abner v. Elliott, 85 Ohio St.3d 11,
17 1999-Ohio-199, 706 N.E.2d 765, ¶ 16 (trial courts have “extensive jurisdiction
over discovery, including inherent authority to direct an in camera inspection
of alleged privileged materials”).
Stull, 2024-Ohio-5718, at ¶ 31.
{¶ 39} The trial court should have exercised its inherent authority and conducted an
in camera review regardless of whether the BTAs requested it by motion. Because the trial
court did not conduct an in camera review of materials asserted to be privileged, it did not
determine whether the discovery was in fact privileged and/or work product before it granted
Andrew’s motion to compel. We conclude that the trial court abused its discretion when it
granted the motion to compel privileged information without conducting an in camera review.
12312 Mayfield Road, LLC v. High & Low Little Italy, LLC, 2024-Ohio-2717 (8th Dist.) (trial
court abused its discretion when it granted High & Low’s motion to compel documents and
declined to conduct an evidentiary hearing or in camera review of the disputed documents);
See also Matter of Hasenfratz, 2025-Ohio-2372 (6th Dist.) (same); Bautista, 2025-Ohio-674
(2d Dist.) (trial court erred in ordering the production of confidential files without determining
if they are privileged); Cochran Ohio, 2023-Ohio-2212 (2d Dist.).
E. Conclusions Without Evidence or Hearing
{¶ 40} A final troubling aspect of the trial court’s decision is that it made conclusions
of law and fact; however, the court did not hold an evidentiary hearing. The only materials
before the trial court were the pleadings and motions of the parties.
{¶ 41} The trial court did not have evidence before it to determine the scope of
Stachler’s communications regarding any client, including which communications involving
the trust, its creation, and/or the BTAs were protected. Therefore, the court was without
evidence to conclude that, “[d]espite his dubious implications to the contrary, this Court finds
18 that Stachler was not acting in the capacity of an attorney representing the Trust at the time
the Trust engaged in machinations to exert control over RB Jergens and 309 Holdings.”
{¶ 42} Additionally, the trial court’s statements in its decision as to the exclusion of
the attorney-client privilege due to the possible commission of a crime or tort is premature.
Whether the crime-fraud exception to the attorney-client privilege applies is a factual inquiry
that must be determined on evidence and proven by the party seeking to invoke the
exception. “A party invoking the crime-fraud exception must demonstrate that there is a
factual basis for a showing of probable cause to believe that a crime or fraud has been
committed and that the communications were in furtherance of the crime or fraud. The mere
fact that communications may be related to a crime is insufficient to overcome the attorney-
client privilege.” (Citation omitted.) Nix, 83 Ohio St.3d at 383-384. Given the lack of evidence
before the trial court, its findings and conclusions were clearly erroneous, and as they related
to the trial court’s determination that the BTAs had waived their privileges, the court abused
its discretion.
{¶ 43} The BTAs’ assignments of error are well-taken and are sustained.
IV. Conclusion
{¶ 44} The judgment of the Montgomery County Common Pleas Court is reversed,
and this matter is remanded for proceedings consistent with this opinion.
.............
LEWIS, P.J., and HUFFMAN, J., concur.