[Cite as State v. Cunningham, 2021-Ohio-4051.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0047
Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas
ERIK A. CUNNINGHAM, Trial Court No. 2019 CR 00022 Defendant-Appellant.
M E M O R A N DU M OPINION
Decided: November 15, 2021 Judgment: Appeal dismissed
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Donald J. Malarcik and John P. Stiles, 121 S. Main Street, Suite 520, Akron, OH 44308 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Erik A. Cunningham, appeals the trial court’s discovery order,
which concluded that a Special Master is not necessary to review the contents of seized
cell phones before releasing certain information to the state of Ohio. After requesting the
parties to brief the issue of appealability, we conclude dismissal of the appeal is
warranted.
{¶2} Appellant, accused of killing his wife, was indicted on charges of murder
and felonious assault. The state obtained a search warrant for his parents’ cell phones, which were then seized by the police department. Appellant moved the trial court to
appoint a Special Master to review the contents of his father’s phone, in particular, for
information protected under the attorney-client privilege and as attorney work product.
Appellant asserted that his father is paying for expert witnesses and that his phone
contains numerous text messages and emails with defense counsel that discuss experts,
potential experts, and other witnesses on appellant’s behalf.
{¶3} Appellant subsequently offered that a Special Master would not be
necessary if the court limited the extraction to emails and text messages between his
parents, the victim, and a third party between the dates of October 24, 2018, and January
3, 2019. The state did not object to appointment of a Special Master to review the
contents of the cell phones beginning on the date defense counsel first entered a notice
of appearance, January 4, 2019, and thereafter, but it did object to any further limitation
on the extraction of data.
{¶4} The trial court held multiple hearings on the matter. The court concluded
that the search warrant was proper and that the state and defense counsel are entitled to
all information gathered from the cell phones for the time period prior to January 4, 2019.
The court did not limit the extraction any further as had been requested by appellant. The
court concluded that information obtained any time after January 4, 2019, is inadmissible
and, therefore, a Special Master is not necessary to review the cell phone contents. The
court ordered Ohio Bureau of Criminal Investigation (“BCI”) to review, segregate, and
release to the parties only the admissible information extracted from the cell phones.
Case No. 2021-P-0047 {¶5} The issue currently before us is whether this is a final, appealable order
under R.C. 2505.02(B)(4), which provides that an order is final when it “grants or denies
a provisional remedy” and both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. (b) 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. A “provisional remedy” is defined as “a proceeding ancillary to an action, including, but
not limited to, a proceeding for a preliminary injunction, attachment, discovery of
privileged matter, [or] suppression of evidence * * *.” R.C. 2505.02(A)(3).
{¶6} “Whenever a party is required to provide information under a discovery
order, it will be impossible to ‘unring the proverbial bell.’ Despite this, the General
Assembly defines ‘provisional remedy’ extremely narrowly; i.e., a discovery order relating
to the release of information is only appealable when the information is either confidential
or privileged.” Colombo v. Mismas Law Firm, L.L.C., 11th Dist. Lake No. 2014-L-069,
2015-Ohio-812, ¶ 22; accord Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195,
928 N.E.2d 763, ¶ 33 (10th Dist.), citing Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-
4353, 852 N.E.2d 1176, ¶ 24. “An order compelling the production of materials alleged
to be protected by the attorney-client privilege is a final, appealable order under R.C.
2505.02(B)(4). Prejudice would be inherent in violating the confidentiality guaranteed by
the attorney-client privilege, and therefore, an appeal after final judgment would not
provide an adequate remedy.” Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-
Ohio-8000, 89 N.E.3d 536, ¶ 30.
Case No. 2021-P-0047 {¶7} “[A] party is not required to conclusively prove the existence of privileged
matter as a precondition to appellate review under R.C. 2505.02(B)(4).” Loukinas v. State
Farm Mut. Auto. Ins. Co., 1st Dist. Hamilton No. C-180462, 2019-Ohio-3300, ¶ 17, citing
Byrd v. U.S. Xpress, Inc., 2014-Ohio-5733, 26 N.E.3d 858, ¶ 12 (1st Dist.). “‘To impose
such a requirement would force an appellate court “to decide the merits of an appeal in
order to decide whether it has the power to hear and decide the merits of an appeal.”’
Instead, a party need only make a ‘colorable claim’ that materials subject to discovery are
privileged in order to qualify as a provisional remedy.” Loukinas at ¶ 17, quoting Byrd at
¶ 12, quoting Bennett at ¶ 35. Accord, e.g., Phillips v. Vesuvius USA Corp., 8th Dist.
Cuyahoga No. 108888, 2020-Ohio-3285, ¶ 12.
{¶8} “A ‘colorable claim’ means ‘[a] plausible claim that may reasonably be
asserted, given the facts presented[.]’” State v. E.I. Du Pont De Nemours & Co., 4th Dist.
Washington No. 20CA30, 2021-Ohio-2614, ¶ 16, quoting Black’s Law Dictionary (11th
Ed.2019); see also Burnham at ¶ 3, ¶ 29 (appellant satisfied its burden when it “plausibly
alleged” and made a “colorable claim” that the report subject to discovery was governed
by the attorney-client privilege). “Thus, to establish a ‘colorable claim’ that material is
protected by the attorney-client privilege, a party must present more than ‘[s]peculation
and unsubstantiated allegations’ that the documents are privileged.” E.I. Du Pont De
Nemours at ¶ 17, quoting State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d
616, ¶ 277. Accord DMS Constr. Ents., L.L.C. v. Homick, 8th Dist. Cuyahoga No. 109343,
2020-Ohio-4919, ¶ 44.
{¶9} Here, Cunningham’s claim solely relates to the attorney-client privilege and
protected attorney work product, and the parties agree that defense counsel first entered
Case No. 2021-P-0047 an appearance on Cunningham’s behalf on January 4, 2019. The trial court concluded
that any information extracted from the cell phones after that date is inadmissible and
ordered BCI to review and release to the parties only the extracted information prior to
that date. As pertains to the data the trial court ordered discoverable, however,
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[Cite as State v. Cunningham, 2021-Ohio-4051.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0047
Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas
ERIK A. CUNNINGHAM, Trial Court No. 2019 CR 00022 Defendant-Appellant.
M E M O R A N DU M OPINION
Decided: November 15, 2021 Judgment: Appeal dismissed
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Donald J. Malarcik and John P. Stiles, 121 S. Main Street, Suite 520, Akron, OH 44308 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Erik A. Cunningham, appeals the trial court’s discovery order,
which concluded that a Special Master is not necessary to review the contents of seized
cell phones before releasing certain information to the state of Ohio. After requesting the
parties to brief the issue of appealability, we conclude dismissal of the appeal is
warranted.
{¶2} Appellant, accused of killing his wife, was indicted on charges of murder
and felonious assault. The state obtained a search warrant for his parents’ cell phones, which were then seized by the police department. Appellant moved the trial court to
appoint a Special Master to review the contents of his father’s phone, in particular, for
information protected under the attorney-client privilege and as attorney work product.
Appellant asserted that his father is paying for expert witnesses and that his phone
contains numerous text messages and emails with defense counsel that discuss experts,
potential experts, and other witnesses on appellant’s behalf.
{¶3} Appellant subsequently offered that a Special Master would not be
necessary if the court limited the extraction to emails and text messages between his
parents, the victim, and a third party between the dates of October 24, 2018, and January
3, 2019. The state did not object to appointment of a Special Master to review the
contents of the cell phones beginning on the date defense counsel first entered a notice
of appearance, January 4, 2019, and thereafter, but it did object to any further limitation
on the extraction of data.
{¶4} The trial court held multiple hearings on the matter. The court concluded
that the search warrant was proper and that the state and defense counsel are entitled to
all information gathered from the cell phones for the time period prior to January 4, 2019.
The court did not limit the extraction any further as had been requested by appellant. The
court concluded that information obtained any time after January 4, 2019, is inadmissible
and, therefore, a Special Master is not necessary to review the cell phone contents. The
court ordered Ohio Bureau of Criminal Investigation (“BCI”) to review, segregate, and
release to the parties only the admissible information extracted from the cell phones.
Case No. 2021-P-0047 {¶5} The issue currently before us is whether this is a final, appealable order
under R.C. 2505.02(B)(4), which provides that an order is final when it “grants or denies
a provisional remedy” and both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. (b) 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. A “provisional remedy” is defined as “a proceeding ancillary to an action, including, but
not limited to, a proceeding for a preliminary injunction, attachment, discovery of
privileged matter, [or] suppression of evidence * * *.” R.C. 2505.02(A)(3).
{¶6} “Whenever a party is required to provide information under a discovery
order, it will be impossible to ‘unring the proverbial bell.’ Despite this, the General
Assembly defines ‘provisional remedy’ extremely narrowly; i.e., a discovery order relating
to the release of information is only appealable when the information is either confidential
or privileged.” Colombo v. Mismas Law Firm, L.L.C., 11th Dist. Lake No. 2014-L-069,
2015-Ohio-812, ¶ 22; accord Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195,
928 N.E.2d 763, ¶ 33 (10th Dist.), citing Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-
4353, 852 N.E.2d 1176, ¶ 24. “An order compelling the production of materials alleged
to be protected by the attorney-client privilege is a final, appealable order under R.C.
2505.02(B)(4). Prejudice would be inherent in violating the confidentiality guaranteed by
the attorney-client privilege, and therefore, an appeal after final judgment would not
provide an adequate remedy.” Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-
Ohio-8000, 89 N.E.3d 536, ¶ 30.
Case No. 2021-P-0047 {¶7} “[A] party is not required to conclusively prove the existence of privileged
matter as a precondition to appellate review under R.C. 2505.02(B)(4).” Loukinas v. State
Farm Mut. Auto. Ins. Co., 1st Dist. Hamilton No. C-180462, 2019-Ohio-3300, ¶ 17, citing
Byrd v. U.S. Xpress, Inc., 2014-Ohio-5733, 26 N.E.3d 858, ¶ 12 (1st Dist.). “‘To impose
such a requirement would force an appellate court “to decide the merits of an appeal in
order to decide whether it has the power to hear and decide the merits of an appeal.”’
Instead, a party need only make a ‘colorable claim’ that materials subject to discovery are
privileged in order to qualify as a provisional remedy.” Loukinas at ¶ 17, quoting Byrd at
¶ 12, quoting Bennett at ¶ 35. Accord, e.g., Phillips v. Vesuvius USA Corp., 8th Dist.
Cuyahoga No. 108888, 2020-Ohio-3285, ¶ 12.
{¶8} “A ‘colorable claim’ means ‘[a] plausible claim that may reasonably be
asserted, given the facts presented[.]’” State v. E.I. Du Pont De Nemours & Co., 4th Dist.
Washington No. 20CA30, 2021-Ohio-2614, ¶ 16, quoting Black’s Law Dictionary (11th
Ed.2019); see also Burnham at ¶ 3, ¶ 29 (appellant satisfied its burden when it “plausibly
alleged” and made a “colorable claim” that the report subject to discovery was governed
by the attorney-client privilege). “Thus, to establish a ‘colorable claim’ that material is
protected by the attorney-client privilege, a party must present more than ‘[s]peculation
and unsubstantiated allegations’ that the documents are privileged.” E.I. Du Pont De
Nemours at ¶ 17, quoting State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d
616, ¶ 277. Accord DMS Constr. Ents., L.L.C. v. Homick, 8th Dist. Cuyahoga No. 109343,
2020-Ohio-4919, ¶ 44.
{¶9} Here, Cunningham’s claim solely relates to the attorney-client privilege and
protected attorney work product, and the parties agree that defense counsel first entered
Case No. 2021-P-0047 an appearance on Cunningham’s behalf on January 4, 2019. The trial court concluded
that any information extracted from the cell phones after that date is inadmissible and
ordered BCI to review and release to the parties only the extracted information prior to
that date. As pertains to the data the trial court ordered discoverable, however,
Cunningham does not present a colorable claim that its discovery will result in access to
attorney-client privileged information or attorney work product. His brief in support of the
notice of appeal merely states, in conclusory fashion, that his assertion that access to the
data on the seized cell phones will result in access to confidential and privileged
information constitutes a “colorable claim.”
{¶10} Accordingly, the proceeding that resulted in the discovery order here does
not qualify as a provisional remedy, and the discovery order is not final and appealable
under R.C. 2505.02(B)(4). “An appellate court can review only final orders, and without
a final order, an appellate court has no jurisdiction.” Supportive Solutions, L.L.C. v.
Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490,
¶ 10; Ohio Constitution, Article IV, Section 3(B)(2). We therefore dismiss this interlocutory
appeal for lack of jurisdiction.
{¶11} Appeal dismissed.
MARY JANE TRAPP, P.J.,
MATT LYNCH, J.,
concur.
Case No. 2021-P-0047