[Cite as Ohio Dept. of Transp. v. Bluescope Bldgs N. Am., Inc., 2016-Ohio-576.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO, DEPARTMENT OF : Hon. Sheila G. Farmer, P.J. TRANSPORTATION : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. Plaintiff-Appellant : : -vs- : Case No. 2015 AP 06 0027 : BLUESCOPE BUILDINGS NORTH : AMERICA, INC. FDBA BUTLER : OPINION MANUFACTURING CO.
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2014 CT 05 0320
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: February 17, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MICHAEL DEWINE JOHN J. KULEWICZ Ohio Attorney General Vorys, Sater, Seymour & Pease, LLP WILLIAM C. BECKER 52 East Gay Street CRAIG BARCLAY Box 1008 RICHARD J. SILK, JR. Columbus, OH 43216 Assistant Attorneys General 150 East Gay Street DAVID K. SCHAFFNER Columbus, OH 43215 Schaffner Law Offices 132 Fair Avenue N.W. New Philadelphia, OH 44663 [Cite as Ohio Dept. of Transp. v. Bluescope Bldgs N. Am., Inc., 2016-Ohio-576.]
Gwin, J.
{¶1} Appellant appeals the May 15, 2015 judgment entry of the Tuscarawas
County Court of Common Pleas granting appellee’s motion to compel and ordering
appellant to: supplement its answers and responses to the first set of interrogatories and
request for production of documents; and submit a privilege log as to any materials
appellant claims are privileged and not relevant to appellant’s claims.
Facts & Procedural History
{¶2} In a previous action, appellant, the State of Ohio, Department of
Transportation (“ODOT”) filed a complaint against appellee Bluescope Buildings North
America, Inc. f/d/b/a Butler Manufacturing Company (“Butler”) for breach of express and
implied product liability warranties and negligence. Prior to trial, ODOT dismissed,
without prejudice, its express warranty and negligence claims. The jury found in favor of
ODOT on its remaining implied warranty claim and awarded ODOT damages of $2.14
million dollars.
{¶3} Subsequently, ODOT filed the instant case on May 23, 2014, a complaint
against Butler for spoliation of evidence, fraudulent inducement, and negligent
misrepresentation with a request for punitive damages. ODOT alleges Butler altered the
express warranty issued to ODOT in the previous litigation. Specifically, that Butler
removed language in the warranty by whiting out the phrase “no limits of liability” and that
Butler directed its expert witness to materially change his opinion.
{¶4} On March 2, 2015, Butler filed a motion to compel discovery, seeking an
order from the trial court compelling ODOT to provide full responses to Butler’s first set of
interrogatories and request for production of documents. ODOT filed a memorandum in Tuscarawas County, Case No. 2015 AP 0027 3
opposition to the motion to compel, arguing the motion should be denied based upon the
attorney-client privilege and the work-product privilege.
{¶5} On May 15, 2015, the trial court issued a judgment entry finding ODOT’s
answers and responses to Butler’s first set of interrogatories legally deficient and not
protected by attorney-client or work-product privilege. The trial court granted the motion
to compel and ordered ODOT to: supplement its answers and responses to Butler’s first
set of interrogatories and request for production of documents in accordance with the trial
court’s findings, accompanied by a privilege log as to any materials that are privileged
and not relevant to the claims in this action.
{¶6} In August of 2015, ODOT filed a motion to amend the complaint to delete
the allegation in the complaint that ODOT dismissed its express warranty claim in the
previous case based upon the altered language in the warranty. ODOT also filed a motion
to vacate the trial court’s May 15th judgment entry based upon the amendment of the
complaint. The trial court granted ODOT’s motion to amend complaint, but denied
ODOT’s motion to vacate the May 15th judgment entry.
{¶7} ODOT appeals the trial court’s May 15, 2015 judgment entry and assigns
the following as error:
{¶8} “I. THE TRIAL COURT INCORRECTLY DETERMINED THAT APPELLANT
WAIVED THE ATTORNEY-CLIENT PRIVILEGE.
{¶9} “II. THE TRIAL COURT INCORRECTLY DETERMINED THAT
APPELLANT WAIVED THE WORK-PRODUCT PRIVILEGE. Tuscarawas County, Case No. 2015 AP 0027 4
{¶10} “III. THE TRIAL COURT ERRED IN FINDING THAT THE STATE WAIVED
THE ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT PRIVILEGES BY
FAILING TO PROVIDE A PRIVILEGE LOG.”
Final Appealable Order
{¶11} Prior to addressing the merits of ODOT’s assignments of error, we must first
determine whether the order under review is final and appealable.
{¶12} The Ohio Constitution grants courts of appeals jurisdiction “to review and
affirm, modify, or reverse judgments or final orders.” Article IV, Section 3(B)(2).
{¶13} A proceeding for “discovery of privileged matter” is a “provisional remedy”
within the meaning of R.C. 2505.02(A)(3). Smith v. Chen, 142 Ohio St.3d 411, 2015-
Ohio-1480, 31 N.E.3d 633. An order granting or denying a provisional remedy is final
and appealable only if it has the effect of “determining the action with respect to the
provisional remedy and preventing a judgment in the action in favor of the appealing party
with respect to the provisional remedy” and “the appealing party would not be afforded a
meaningful or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.” Id.; R.C. 2505.02(B)(4). The
burden “falls on the party who knocks on the courthouse doors asking for interlocutory
relief.” Id.
{¶14} As specifically noted by the Ohio Supreme Court, “an order must meet the
requirements in both subsections of the provisional-remedy section of the definition of
final, appealable order in order to maintain an appeal.” Id. If the party seeking to appeal
fails to establish why an immediate appeal is necessary, the court must presume an
appeal in the ordinary course would be meaningful and effective. Id. However, “an order Tuscarawas County, Case No. 2015 AP 0027 5
compelling disclosure of privileged material that would truly render a post judgment
appeal meaningless or ineffective may still be considered on an immediate appeal.” Id.
{¶15} In this case, appellant argues there is a final appealable order under R.C.
2505.02(A)(3) and (B)(4)(b) because it requires the discovery of privileged matter, and
thereby grants a provisional remedy for which there would be no meaningful effective
remedy on subsequent appeal. Appellant contends an immediate appeal is necessary
because the trial court’s judgment entry goes well-beyond the production of documents
and response to interrogatories and argues the discovery efforts are all about taking the
depositions of the trial team in the previous litigation. Appellant further argues an
immediate appeal is necessary because the trial court’s entry determines waiver of
privilege as to the entire case, so appellant is forced to provide all attorney-client
communications and work-product in writing and orally, with no meaningful remedy after
final judgment. We disagree with appellant.
{¶16} Despite appellant’s contention, the trial court’s judgment entry does not go
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[Cite as Ohio Dept. of Transp. v. Bluescope Bldgs N. Am., Inc., 2016-Ohio-576.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO, DEPARTMENT OF : Hon. Sheila G. Farmer, P.J. TRANSPORTATION : Hon. W. Scott Gwin, J. : Hon. John W. Wise, J. Plaintiff-Appellant : : -vs- : Case No. 2015 AP 06 0027 : BLUESCOPE BUILDINGS NORTH : AMERICA, INC. FDBA BUTLER : OPINION MANUFACTURING CO.
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 2014 CT 05 0320
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: February 17, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MICHAEL DEWINE JOHN J. KULEWICZ Ohio Attorney General Vorys, Sater, Seymour & Pease, LLP WILLIAM C. BECKER 52 East Gay Street CRAIG BARCLAY Box 1008 RICHARD J. SILK, JR. Columbus, OH 43216 Assistant Attorneys General 150 East Gay Street DAVID K. SCHAFFNER Columbus, OH 43215 Schaffner Law Offices 132 Fair Avenue N.W. New Philadelphia, OH 44663 [Cite as Ohio Dept. of Transp. v. Bluescope Bldgs N. Am., Inc., 2016-Ohio-576.]
Gwin, J.
{¶1} Appellant appeals the May 15, 2015 judgment entry of the Tuscarawas
County Court of Common Pleas granting appellee’s motion to compel and ordering
appellant to: supplement its answers and responses to the first set of interrogatories and
request for production of documents; and submit a privilege log as to any materials
appellant claims are privileged and not relevant to appellant’s claims.
Facts & Procedural History
{¶2} In a previous action, appellant, the State of Ohio, Department of
Transportation (“ODOT”) filed a complaint against appellee Bluescope Buildings North
America, Inc. f/d/b/a Butler Manufacturing Company (“Butler”) for breach of express and
implied product liability warranties and negligence. Prior to trial, ODOT dismissed,
without prejudice, its express warranty and negligence claims. The jury found in favor of
ODOT on its remaining implied warranty claim and awarded ODOT damages of $2.14
million dollars.
{¶3} Subsequently, ODOT filed the instant case on May 23, 2014, a complaint
against Butler for spoliation of evidence, fraudulent inducement, and negligent
misrepresentation with a request for punitive damages. ODOT alleges Butler altered the
express warranty issued to ODOT in the previous litigation. Specifically, that Butler
removed language in the warranty by whiting out the phrase “no limits of liability” and that
Butler directed its expert witness to materially change his opinion.
{¶4} On March 2, 2015, Butler filed a motion to compel discovery, seeking an
order from the trial court compelling ODOT to provide full responses to Butler’s first set of
interrogatories and request for production of documents. ODOT filed a memorandum in Tuscarawas County, Case No. 2015 AP 0027 3
opposition to the motion to compel, arguing the motion should be denied based upon the
attorney-client privilege and the work-product privilege.
{¶5} On May 15, 2015, the trial court issued a judgment entry finding ODOT’s
answers and responses to Butler’s first set of interrogatories legally deficient and not
protected by attorney-client or work-product privilege. The trial court granted the motion
to compel and ordered ODOT to: supplement its answers and responses to Butler’s first
set of interrogatories and request for production of documents in accordance with the trial
court’s findings, accompanied by a privilege log as to any materials that are privileged
and not relevant to the claims in this action.
{¶6} In August of 2015, ODOT filed a motion to amend the complaint to delete
the allegation in the complaint that ODOT dismissed its express warranty claim in the
previous case based upon the altered language in the warranty. ODOT also filed a motion
to vacate the trial court’s May 15th judgment entry based upon the amendment of the
complaint. The trial court granted ODOT’s motion to amend complaint, but denied
ODOT’s motion to vacate the May 15th judgment entry.
{¶7} ODOT appeals the trial court’s May 15, 2015 judgment entry and assigns
the following as error:
{¶8} “I. THE TRIAL COURT INCORRECTLY DETERMINED THAT APPELLANT
WAIVED THE ATTORNEY-CLIENT PRIVILEGE.
{¶9} “II. THE TRIAL COURT INCORRECTLY DETERMINED THAT
APPELLANT WAIVED THE WORK-PRODUCT PRIVILEGE. Tuscarawas County, Case No. 2015 AP 0027 4
{¶10} “III. THE TRIAL COURT ERRED IN FINDING THAT THE STATE WAIVED
THE ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT PRIVILEGES BY
FAILING TO PROVIDE A PRIVILEGE LOG.”
Final Appealable Order
{¶11} Prior to addressing the merits of ODOT’s assignments of error, we must first
determine whether the order under review is final and appealable.
{¶12} The Ohio Constitution grants courts of appeals jurisdiction “to review and
affirm, modify, or reverse judgments or final orders.” Article IV, Section 3(B)(2).
{¶13} A proceeding for “discovery of privileged matter” is a “provisional remedy”
within the meaning of R.C. 2505.02(A)(3). Smith v. Chen, 142 Ohio St.3d 411, 2015-
Ohio-1480, 31 N.E.3d 633. An order granting or denying a provisional remedy is final
and appealable only if it has the effect of “determining the action with respect to the
provisional remedy and preventing a judgment in the action in favor of the appealing party
with respect to the provisional remedy” and “the appealing party would not be afforded a
meaningful or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.” Id.; R.C. 2505.02(B)(4). The
burden “falls on the party who knocks on the courthouse doors asking for interlocutory
relief.” Id.
{¶14} As specifically noted by the Ohio Supreme Court, “an order must meet the
requirements in both subsections of the provisional-remedy section of the definition of
final, appealable order in order to maintain an appeal.” Id. If the party seeking to appeal
fails to establish why an immediate appeal is necessary, the court must presume an
appeal in the ordinary course would be meaningful and effective. Id. However, “an order Tuscarawas County, Case No. 2015 AP 0027 5
compelling disclosure of privileged material that would truly render a post judgment
appeal meaningless or ineffective may still be considered on an immediate appeal.” Id.
{¶15} In this case, appellant argues there is a final appealable order under R.C.
2505.02(A)(3) and (B)(4)(b) because it requires the discovery of privileged matter, and
thereby grants a provisional remedy for which there would be no meaningful effective
remedy on subsequent appeal. Appellant contends an immediate appeal is necessary
because the trial court’s judgment entry goes well-beyond the production of documents
and response to interrogatories and argues the discovery efforts are all about taking the
depositions of the trial team in the previous litigation. Appellant further argues an
immediate appeal is necessary because the trial court’s entry determines waiver of
privilege as to the entire case, so appellant is forced to provide all attorney-client
communications and work-product in writing and orally, with no meaningful remedy after
final judgment. We disagree with appellant.
{¶16} Despite appellant’s contention, the trial court’s judgment entry does not go
beyond the production of documents and responses to interrogatories. The trial court
ruled only on a motion to compel regarding appellee’s first set of interrogatories and
request for production of documents. There is no determination of waiver of privilege as
to the entire case and there is nothing in the judgment entry requiring appellant to provide
all attorney-client communications and work-product in writing and orally. Rather, the trial
court ordered appellant to supplement its responses to the interrogatories and submit a
privilege log of documents, communications, or information it claims are privileged.
Further, the trial court did not actually order the release of the documents. Rather, the
trial court ordered appellant to submit a privilege log with a description of the nature of Tuscarawas County, Case No. 2015 AP 0027 6
the documents, communications, or things not produced to the trial court for review. The
trial court can then hold an in-camera inspection with regards to the documents or
communications at issue.
{¶17} With regards to appellant’s argument as to depositions, they are not at issue
in this motion to compel, as the motion deals only with responses to interrogatories and
production of documents. The trial court has not been presented with or ruled on the
testimonial issue. Further, the record is not sufficiently developed to determine whether
any deposition would result in the disclosure of privileged materials. See Autumn Health
Care of Zanesville, LLC v. DeWine, 10th Dist. Franklin No. 14AP-593, 2015-Ohio-2655.
{¶18} Based on the foregoing, we find appellant failed to satisfy the requirement
in R.C. 2505.02(B)(4)(b) as to why an immediate appeal is necessary in this case and we
must presume an appeal in the ordinary course would be meaningful and effective.
Accordingly, we are without jurisdiction to address the assignments of error and,
consequently, the above-captioned appeal is dismissed.
By Gwin, J.,
Farmer, P.J., and
Wise, J., concur