[Cite as Owens v. ACS Hotels, L.L.C., 2016-Ohio-5506.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
DARLENE OWENS C.A. No. 27787
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE ACS, HOTELS, LLC, COURT OF COMMON PLEAS dba Country Inn & Suites COUNTY OF SUMMIT, OHIO CASE No. CV 2014 08 4024 Appellant
DECISION AND JOURNAL ENTRY
Dated: August 24, 2016
HENSAL, Presiding Judge.
{¶1} ACS Hotels, LLC appeals a judgment of the Summit County Court of Common
Pleas that granted in part and denied in part its motion for protective order and Darlene Owens’s
motion to compel. For the following reasons, this Court affirms.
I.
{¶2} ACS operates a hotel in Macedonia. Ms. Owens was a guest at the hotel in
March 2014. Following her stay, Ms. Owens filed a complaint against ACS, alleging that she
contracted Legionella from the hotel’s pool and spa. In its answer, ACS listed over twenty
affirmative defenses. During discovery, Ms. Owens served interrogatories and requests for
production on ACS regarding each of those defenses. In each interrogatory, Ms. Owens
requested that ACS:
Set forth each and every fact upon which you rely, state the name, address, and telephone number of each and every witness supporting each such fact and identify and attach to the answers to these interrogatories copies of each and every 2
document in any way supporting your assertion [that the particular affirmative defense applies] * * *.
In each request for production, Ms. Owens requested that ACS “[p]roduce true and authentic
copies of any and all documents in support of your answer to [each interrogatory].” ACS
objected to the interrogatories and requests for production relating to its affirmative defenses,
claiming that they sought attorney work product and were protected by attorney-client privilege.
{¶3} When the parties were unable to resolve their dispute over the discovery requests,
ACS moved for a protective order, arguing that the information Ms. Owens sought was attorney
work product. Ms. Owens opposed the motion and filed a motion to compel, arguing that the
information was discoverable. Following additional memoranda by both parties, the trial court
ruled that a number of ACS’s affirmative defenses “require fact discovery to avoid trial by
ambush and can be answered without divulging attorney-work product.” It determined that the
remainder, however, “are procedural or technical defenses” that did not require further factual
discovery. It, therefore, granted ACS’s motion for protective order and Ms. Owens’s motion to
compel in part and denied them in part. ACS has appealed, assigning as error that the trial court
erred when it denied its motion in part and granted Ms. Owens’s motion in part.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING ACS HOTELS, LLC D/B/A COUNTRY INN & SUITES’ MOTION FOR PROTECTIVE ORDER, AND GRANTING PLAINTIFF’S MOTION TO COMPEL.
{¶4} ACS argues that the trial court should have granted its motion for protective order
in full and denied Ms. Owens’s motion to compel in full. Civil Rule 26(B)(1) provides that,
unless otherwise ordered by the court, “[p]arties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action, whether it 3
relates to the claim or defense of the party seeking discovery or to the claim or defense of any
other party * * *.” ACS admits that this Court’s standard of review is abuse of discretion. See
Anderson v. A.C. & S., Inc., 83 Ohio App.3d 581, 584 (9th Dist.1992); State ex rel. Greater
Cleveland Regional Transit Auth. v. Guzzzo, 6 Ohio St.3d 270, 271 (1983) (explaining that
whether a “privilege” exists under Civil Rule 26(B)(1) is a discretionary decision “to be made by
the trial court.”). An abuse of discretion implies that a trial court was unreasonable, arbitrary, or
unconscionable in its judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶5} ACS argues that Ms. Owens’s interrogatories improperly seek its attorney’s
mental impressions, which are protected under the work product doctrine. The work product
doctrine “provides a qualified privilege protecting the attorney’s mental processes in preparation
of litigation, establishing ‘a zone of privacy in which lawyers can analyze and prepare their
client’s case free from scrutiny or interference by an adversary.’” (Emphasis original.) Squire,
Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, ¶
55, quoting Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.2006).
{¶6} Regarding Ms. Owens’s interrogatories, ACS argues that the trial court
incorrectly determined that they do not impinge on its attorney’s work product. According to
ACS, by asking for the facts “upon which [it] rel[ies],” Ms. Owens seeks its counsel’s subjective
evaluation of the state of the evidence, essentially asking ACS to divulge what evidence it
believes is material as to each defense. It contends that Ms. Owens’s interrogatories are similar
to ones that were found to be improper in DeCuzzi v. Westlake, 191 Ohio App.3d 816, 2010-
Ohio-6169 (8th Dist.). In DeCuzzi, the Eighth District Court of Appeals concluded that a city
employee’s interrogatories that asked the City to “identify the immunity defense by its type (i.e.,
absolute, qualified, etc.) and identify what facts establish the defense” sought opinion work- 4
product because they asked the city “to divulge how it intends to defend its case[.]” (Emphasis
omitted.) Id. at ¶ 18. It also determined that an interrogatory that asked the city to “state the
exact factual defense * * * by specific reference to facts, exhibits, dates, witnesses, and
transactions between the parties * * *” that it would attempt to prove at trial as well as to “state
the factual basis for any affirmative defense” was vague and overbroad and could be construed
as seeking work-product information. Id. at ¶ 3, 17.
{¶7} Civil Rule 26(B)(3) “describes the work-product doctrine as it applies in civil
cases in Ohio[.]” Squire, Sanders & Dempsey, L.L.P., at ¶ 56. It provides, in relevant part, that
“a party may obtain discovery of documents, electronically stored information and tangible
things prepared in anticipation of litigation or for trial by or for another party or by or for that
other party's representative (including his attorney * * *) only upon a showing of good cause
therefor.” Civ.R. 26(B)(3). The Ohio Supreme Court has explained that, although the rule only
expressly applies to tangible items, the “protection also extends to intangible work product.”
Squire, Sanders & Dempsey, L.L.P., at ¶ 58. The reason for the extension is so that attorneys
themselves can have a work-product objection at depositions. Id.
{¶8} We agree with ACS that Ms. Owens’s interrogatories could be construed as
asking for its attorney’s intangible work product similar to the ones in DeCuzzi. The trial court,
however, found that they can be answered in a way that not only prevents Ms. Owens from
facing an ambush at trial, but without divulging ACS’s attorney’s work product. In its brief,
ACS has not established why any answers that it provides to the interrogatories would
necessarily include its attorney’s work product.
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[Cite as Owens v. ACS Hotels, L.L.C., 2016-Ohio-5506.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
DARLENE OWENS C.A. No. 27787
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE ACS, HOTELS, LLC, COURT OF COMMON PLEAS dba Country Inn & Suites COUNTY OF SUMMIT, OHIO CASE No. CV 2014 08 4024 Appellant
DECISION AND JOURNAL ENTRY
Dated: August 24, 2016
HENSAL, Presiding Judge.
{¶1} ACS Hotels, LLC appeals a judgment of the Summit County Court of Common
Pleas that granted in part and denied in part its motion for protective order and Darlene Owens’s
motion to compel. For the following reasons, this Court affirms.
I.
{¶2} ACS operates a hotel in Macedonia. Ms. Owens was a guest at the hotel in
March 2014. Following her stay, Ms. Owens filed a complaint against ACS, alleging that she
contracted Legionella from the hotel’s pool and spa. In its answer, ACS listed over twenty
affirmative defenses. During discovery, Ms. Owens served interrogatories and requests for
production on ACS regarding each of those defenses. In each interrogatory, Ms. Owens
requested that ACS:
Set forth each and every fact upon which you rely, state the name, address, and telephone number of each and every witness supporting each such fact and identify and attach to the answers to these interrogatories copies of each and every 2
document in any way supporting your assertion [that the particular affirmative defense applies] * * *.
In each request for production, Ms. Owens requested that ACS “[p]roduce true and authentic
copies of any and all documents in support of your answer to [each interrogatory].” ACS
objected to the interrogatories and requests for production relating to its affirmative defenses,
claiming that they sought attorney work product and were protected by attorney-client privilege.
{¶3} When the parties were unable to resolve their dispute over the discovery requests,
ACS moved for a protective order, arguing that the information Ms. Owens sought was attorney
work product. Ms. Owens opposed the motion and filed a motion to compel, arguing that the
information was discoverable. Following additional memoranda by both parties, the trial court
ruled that a number of ACS’s affirmative defenses “require fact discovery to avoid trial by
ambush and can be answered without divulging attorney-work product.” It determined that the
remainder, however, “are procedural or technical defenses” that did not require further factual
discovery. It, therefore, granted ACS’s motion for protective order and Ms. Owens’s motion to
compel in part and denied them in part. ACS has appealed, assigning as error that the trial court
erred when it denied its motion in part and granted Ms. Owens’s motion in part.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN DENYING ACS HOTELS, LLC D/B/A COUNTRY INN & SUITES’ MOTION FOR PROTECTIVE ORDER, AND GRANTING PLAINTIFF’S MOTION TO COMPEL.
{¶4} ACS argues that the trial court should have granted its motion for protective order
in full and denied Ms. Owens’s motion to compel in full. Civil Rule 26(B)(1) provides that,
unless otherwise ordered by the court, “[p]arties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved in the pending action, whether it 3
relates to the claim or defense of the party seeking discovery or to the claim or defense of any
other party * * *.” ACS admits that this Court’s standard of review is abuse of discretion. See
Anderson v. A.C. & S., Inc., 83 Ohio App.3d 581, 584 (9th Dist.1992); State ex rel. Greater
Cleveland Regional Transit Auth. v. Guzzzo, 6 Ohio St.3d 270, 271 (1983) (explaining that
whether a “privilege” exists under Civil Rule 26(B)(1) is a discretionary decision “to be made by
the trial court.”). An abuse of discretion implies that a trial court was unreasonable, arbitrary, or
unconscionable in its judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶5} ACS argues that Ms. Owens’s interrogatories improperly seek its attorney’s
mental impressions, which are protected under the work product doctrine. The work product
doctrine “provides a qualified privilege protecting the attorney’s mental processes in preparation
of litigation, establishing ‘a zone of privacy in which lawyers can analyze and prepare their
client’s case free from scrutiny or interference by an adversary.’” (Emphasis original.) Squire,
Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, ¶
55, quoting Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.2006).
{¶6} Regarding Ms. Owens’s interrogatories, ACS argues that the trial court
incorrectly determined that they do not impinge on its attorney’s work product. According to
ACS, by asking for the facts “upon which [it] rel[ies],” Ms. Owens seeks its counsel’s subjective
evaluation of the state of the evidence, essentially asking ACS to divulge what evidence it
believes is material as to each defense. It contends that Ms. Owens’s interrogatories are similar
to ones that were found to be improper in DeCuzzi v. Westlake, 191 Ohio App.3d 816, 2010-
Ohio-6169 (8th Dist.). In DeCuzzi, the Eighth District Court of Appeals concluded that a city
employee’s interrogatories that asked the City to “identify the immunity defense by its type (i.e.,
absolute, qualified, etc.) and identify what facts establish the defense” sought opinion work- 4
product because they asked the city “to divulge how it intends to defend its case[.]” (Emphasis
omitted.) Id. at ¶ 18. It also determined that an interrogatory that asked the city to “state the
exact factual defense * * * by specific reference to facts, exhibits, dates, witnesses, and
transactions between the parties * * *” that it would attempt to prove at trial as well as to “state
the factual basis for any affirmative defense” was vague and overbroad and could be construed
as seeking work-product information. Id. at ¶ 3, 17.
{¶7} Civil Rule 26(B)(3) “describes the work-product doctrine as it applies in civil
cases in Ohio[.]” Squire, Sanders & Dempsey, L.L.P., at ¶ 56. It provides, in relevant part, that
“a party may obtain discovery of documents, electronically stored information and tangible
things prepared in anticipation of litigation or for trial by or for another party or by or for that
other party's representative (including his attorney * * *) only upon a showing of good cause
therefor.” Civ.R. 26(B)(3). The Ohio Supreme Court has explained that, although the rule only
expressly applies to tangible items, the “protection also extends to intangible work product.”
Squire, Sanders & Dempsey, L.L.P., at ¶ 58. The reason for the extension is so that attorneys
themselves can have a work-product objection at depositions. Id.
{¶8} We agree with ACS that Ms. Owens’s interrogatories could be construed as
asking for its attorney’s intangible work product similar to the ones in DeCuzzi. The trial court,
however, found that they can be answered in a way that not only prevents Ms. Owens from
facing an ambush at trial, but without divulging ACS’s attorney’s work product. In its brief,
ACS has not established why any answers that it provides to the interrogatories would
necessarily include its attorney’s work product. ACS has not demonstrated that it cannot provide
its understanding of the factual background underlying its affirmative defenses without also
disclosing its “mental impressions, theories, and legal conclusions[.]” Squire, Sanders & 5
Dempsey, L.L.P., at ¶ 60. We, therefore, conclude that ACS has failed to establish that the trial
court abused its discretion when it concluded that ACS can answer several of Ms. Owens’s
interrogatories without divulging attorney work product. See Nationwide Agribusiness Ins. Co.
v. Heidler, 12th Dist. Clinton No. CA2015-07-013, 2016-Ohio-455, ¶ 24.
{¶9} Regarding Ms. Owens’s request for production of documents, the Ohio Supreme
Court has recognized that Civil Rule 26(B)(3) applies to documents and other tangible things that
are prepared in anticipation of litigation. Squire, Sanders & Dempsey, L.L.P., at ¶ 58.
Application of a privilege, however, is not automatic. Harpster v. Advanced Elastomer Sys.,
L.P., 9th Dist. Summit No. 22684, 2005-Ohio-6919, ¶ 20. “[T]he party seeking protection under
a privilege carries the burden of demonstrating that a privilege exists.” Novak v. Studebaker, 9th
Dist. Summit No. 24615, 2009-Ohio-5337, ¶ 19. In particular, it is required to identify and list
all of the documents that it seeks to withhold. Harpster at ¶ 20, citing Amcast Indus. Corp. v.
Detrex Corp., 138 F.R.D. 115, 121 (N.D.Ind.1991), Willemijn Houdstermaatschaapij BV v.
Apollo Computer, Inc., 707 F.Supp. 1429, 1439 (D.Del.1989); Petz v. Ethan Allen, Inc., 113
F.R.D. 494, 497 (D.Conn.1985) (“[A] party asserting protection under the work product doctrine
must identify the withheld documents with sufficient particularity that the opposing counsel can
intelligently argue that the doctrine ought not to apply.”). Without identification of the
documents by the party seeking protection, the party seeking the information is unable to
challenge the soundness of its claim. AM Internatl., Inc. v. Eastman Kodak Co., 100 F.R.D. 255,
256 (N.D.Ill.1981). This Court has held that, if a party seeking to withhold information under
the work product doctrine does not list the documents or material that it deems privileged or
provide any corroborative evidence to support its assertion, it forfeits the protection of the 6
doctrine. McPherson v. Goodyear Tire & Rubber Co., 146 Ohio App.3d 441, 444 (9th
Dist.2001).
{¶10} In its motion for protective order and in its opposition to Ms. Owens’s motion to
compel, ACS did not identify or list any documents that it claimed were work product. Instead,
it merely made a blanket assertion that Ms. Owens’s requests for production sought information
that was protected under the work product doctrine. We, therefore, conclude that ACS forfeited
its right to protection under Civil Rule 26(B)(3) with respect to Ms. Owens’s requests for
production of documents. McPherson at 444 (“Appellant did not list the documents or material
that it deemed privileged or provide any corroborative evidence to support its blanket assertion
that the documents and material were privileged under * * * the work product doctrine.”).
ACS’s assignment of error is overruled.
III.
{¶11} The trial court did not abuse its discretion when it granted Ms. Owens’s motion to
compel in part and denied ACS’s motion for protective order in part. The judgment of the
Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 7
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL FOR THE COURT
CARR, J. SCHAFER, J. CONCUR.
APPEARANCES:
JEFFREY S. MOELLER, HUNTER S. HAVENS, and TERESE M. FENNELL, Attorneys at Law, for Appellant.
TIMOTHY HANNA and SCOTT KOLLIGIAN, Attorneys at Law, for Appellee.