Sutton v. Stevens Painton Corp.

951 N.E.2d 91, 193 Ohio App. 3d 68
CourtOhio Court of Appeals
DecidedFebruary 24, 2011
DocketNo. 95143
StatusPublished
Cited by12 cases

This text of 951 N.E.2d 91 (Sutton v. Stevens Painton Corp.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sutton v. Stevens Painton Corp., 951 N.E.2d 91, 193 Ohio App. 3d 68 (Ohio Ct. App. 2011).

Opinion

Sean C. Gallagher, Judge.

{¶ 1} Appellant Thompson Hine, L.L.P., appeals the decision of the Cuyahoga County Court of Common Pleas that ordered the production of various documents following an in camera inspection. For the reasons stated herein, we affirm in part, reverse in part, and remand.

{¶ 2} This action was filed in June 2005 by plaintiffs-appellees David and Stephanie Sutton (“plaintiffs”) following a workplace accident in which David Sutton (“Sutton”) fell from an aerial man-lift and was injured.1 The complaint, as amended, alleged product-liability and negligence claims against the manufacturer and distributer of the lift, Terex Aerials, Inc., and Terex Corporation (collectively, “Terex”), an intentional-tort claim against Sutton’s employer, Stevens Painton Corporation, and other claims.2 Sutton alleged that he sustained severe and permanent injuries and was unable to hold gainful employment as a result of the accident.

{¶ 3} Thompson Hine represented Terex in the action. In an effort to obtain evidence concerning the extent of Sutton’s alleged injuries, Thompson Hine engaged Shadow Investigations, Inc. (“Shadow”), a private investigative firm, to conduct surveillance of Sutton. The surveillance materials were disclosed to plaintiffs in the course of discovery. Thompson Hine asserts that “[u]pon receipt of the surveillance materials in June 2007, plaintiffs’ counsel immediately threatened to file invasion of privacy claims against Terex, Shadow, and/or Thompson Hine, and from at least that point forward, Thompson Hine was anticipating litigation against it and/or Terex.”

{¶ 4} Thereafter, plaintiffs amended their complaint to add Thompson Hine and Shadow as party defendants and asserted a claim of invasion of privacy against them. After plaintiffs settled their claims against the original defendants, they filed a sixth amended complaint against Thompson Hine and Shadow that [72]*72asserted claims for invasion of privacy and intentional infliction of emotional distress.3 The action continued on these claims.

{¶ 5} Plaintiffs alleged, among other allegations, that Thompson Hine and Shadow or their agents or employees “surreptitiously videotaped Plaintiffs at their private residence,” “physically entered upon Plaintiffs’ private residence under false pretenses,” “solicited] private and confidential information,” “record[ed] a conversation concerning Plaintiffs’ private affairs or concerns,” wrongfully invaded “Plaintiffs’ solitude, seclusion and private affairs,” and caused plaintiffs “severe and debilitating emotional distress.” The surveillance and investigation activities occurred from February through May 2007.

{¶ 6} During the course of discovery, plaintiffs sought documents surrounding the surveillance from Thompson Hine. Thompson Hine refused to produce certain e-mails contained in a “privilege log” and claimed that these documents were privileged or work product. Plaintiffs filed a motion to compel, along with a supplemental motion, seeking production of the e-mails. Plaintiffs argued that Thompson Hine had waived any privilege by previously disclosing certain e-mails that contained information relating to plaintiffs’ claims. Plaintiffs also claimed that they were entitled to discover “the underlying facts and circumstances surrounding the investigation by Shadow Investigation orchestrated by [Thompson Hine attorneys],” including the manner in which Shadow was retained, the manner in which the investigation was conducted, and the facts and circumstances relating to Thompson Hine’s authorization of and participation in the alleged tortious conduct.

{¶ 7} The trial court ordered Thompson Hine to “produce all emails on the privilege log for in camera inspection.” After conducting a thorough review of the documents, the trial court issued an order requiring some of the documents produced with redaction, some produced without redaction, and some not subject to disclosure.

{¶ 8} Thompson Hine has appealed the decision of the trial court.4 The sole assignment of error provides as follows: “The trial court erred in ordering the production of privileged materials without providing any basis for doing so.”

{¶ 9} Initially, we address the sufficiency of the trial court’s order. Thompson Hine claims that the order should be reversed because it fails to provide any basis for ordering the disclosure of the documents in question. It is clear from [73]*73the record that the parties were engaged in a discovery dispute over whether documents contained in Thompson Hine’s “privilege log” were protected by the attorney-client privilege or work-product doctrine. The trial court conducted an in camera inspection and reviewed each individual document, as evinced by its detailing of the Bates-stamped documents in separate categories within its decision. After reviewing these documents to determine whether the asserted privileges applied, the trial court determined that some of the documents were subject to disclosure, made redactions to some of these documents, and determined that other documents were not subject to disclosure.

{¶ 10} While Thompson Hine argues that “specific determinations” should have been made by the trial court, it never requested further clarification from the trial court. Further, the court was not required by Civ.R. 52 to make findings of fact and conclusions of law concerning a decision on a discovery motion. See Carstons v. Klatt, Franklin App. No. 01AP-538, 2002-Ohio-2236, 2002 WL 926356, ¶ 19-20; Sublett v. Sublett (June 5, 1987), Wyandot App. No. 16-85-20, 1987 WL 12100. “Absent evidence to the contrary, we presume that the lower court conducted the in-camera review and determined that the material contained in the records was relevant or necessary.” Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28, 2003-Ohio-2750, 790 N.E.2d 817, ¶14.

{¶ 11} In this particular case, we find that the record, which includes the documents filed under seal, provides this court with an adequate basis to conduct a meaningful review. Therefore, we proceed to address the merits of the appeal.

{¶ 12} Civ.R. 26(B)(1) permits parties' to obtain discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” The Ohio Supreme Court has stated that a discovery issue that involves the assertion of an alleged privilege is reviewed de novo. See Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943 N.E.2d 514, ¶ 13; Roe v. Planned Parenthood S.W. Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, ¶ 29. However, the Ohio Supreme Court also has expressed that the determination of whether materials are protected by the work-product doctrine and the determination of “good cause” under Civ.R. 26(B)(3), are “discretionary determinations to be made by the trial court.” State ex rel. Greater Cleveland Regional Transit Auth. v. Guzzo (1983), 6 Ohio St.3d 270, 271, 6 OBR 335, 452 N.E.2d 1314. It is an abuse of discretion if the court’s ruling is “unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.

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Bluebook (online)
951 N.E.2d 91, 193 Ohio App. 3d 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sutton-v-stevens-painton-corp-ohioctapp-2011.