TCE Tall Oaks, L.L.C. v. Fifth Third Bank, Natl. Assn.

2025 Ohio 4724
CourtOhio Court of Appeals
DecidedOctober 14, 2025
Docket2025-L-003
StatusPublished

This text of 2025 Ohio 4724 (TCE Tall Oaks, L.L.C. v. Fifth Third Bank, Natl. Assn.) 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
TCE Tall Oaks, L.L.C. v. Fifth Third Bank, Natl. Assn., 2025 Ohio 4724 (Ohio Ct. App. 2025).

Opinion

[Cite as TCE Tall Oaks, L.L.C. v. Fifth Third Bank, Natl. Assn., 2025-Ohio-4724.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

TCE TALL OAKS, L.L.C., CASE NO. 2025-L-003

Plaintiff-Appellee, Civil Appeal from the - vs - Court of Common Pleas

FIFTH THIRD BANK, NATIONAL ASSOCIATION, Trial Court No. 2023 CV 000802

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Decided: October 14, 2025 Judgment: Affirmed

Brianna M. Prislipsky, Brian P. Nally, Russell J. Meraglio, Jr., and Kaitlyn M. Posta, Reminger Co., L.P.A., 200 Public Square, Suite 1200, Cleveland, OH 44114 (For Plaintiff-Appellee).

Patrick T. Lewis, James A. Slater, Jr., Sean E. McIntyre, Peter M. Kahnert, and Kevin T. Lissemore, Baker & Hostetler, L.L.P., Key Tower, 127 Public Square, Suite 2000, Cleveland, OH 44114 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Fifth Third Bank, National Association (“Fifth Third”),

appeals from the Lake County Court of Common Pleas’ entries ordering an in camera

review of 243 purportedly privileged documents and ordering Fifth Third to disclose 203

of those documents to plaintiff-appellee, TCE Tall Oaks, L.L.C. (“Tall Oaks”). We affirm.

{¶2} Tall Oaks filed a complaint against Fifth Third on June 23, 2023, alleging

that Fifth Third allowed nearly one million dollars to be stolen from Tall Oaks’s bank

accounts between September 28 and September 30, 2022, through unauthorized and fraudulent transactions. Fifth Third filed an answer and counterclaim, alleging breach of

contract or indemnification.

{¶3} For several months, the parties engaged in a series of contentious

discovery requests, objections, responses, and requests to stay. Multiple witnesses were

deposed. Fifth Third produced hundreds of documents on four occasions between

December 2023 and June 2024. On August 22, 2024, Fifth Third provided a privilege log

of 243 documents it asserted were not discoverable under the attorney-client privilege,

the work-product doctrine, or both.

{¶4} On September 6, 2024, Tall Oaks filed a “Motion to Compel Discovery, or

in the Alternative, Motion for In-Camera Inspection,” in which it claimed Fifth Third was

improperly attempting to shield internal emails exchanged between various non-lawyer

employees of Fifth Third that appear to discuss Tall Oaks’s account, what happened to

Tall Oaks’s account, and summaries of pertinent account activity completed by Fifth Third

employees (e.g., from within the Wire, Fraud, and Financial Crimes Departments).

{¶5} Fifth Third opposed the motion, claiming the documents on its privilege log

principally reflect communications, notes, and related documents dated on or after

December 5, 2022, when it first received a threat of litigation from Tall Oaks. According

to Fifth Third, these communications were exchanged either (1) between attorneys in Fifth

Third’s Legal Department and other Fifth Third employees related to advice of counsel or

legal services, or (2) between Fifth Third employees, acting under the direction of counsel,

to collect information and analysis to provide the Legal Department attorneys.

{¶6} On December 11, 2024, the trial court ordered Fifth Third to produce under

seal the 243 withheld documents for the court to conduct an in camera review.

PAGE 2 OF 15

Case No. 2025-L-003 {¶7} On January 7, 2025, the trial court issued an “Entry Ordering Production of

Records After In-Camera Review.” The court held as follows:

Having reviewed all [243] records in the privilege log, the Court determines that the following [40] records (identified by their control number) are protected by attorney-client privilege or the work-product doctrine as indicated in the privilege log and shall not be produced.

[List of 40 control numbers]

All [203] records not listed above shall be produced by January 15, 2025.

Plaintiff’s request for costs and attorney fees is denied. The flash drive containing all records and the privilege log shall be retained as the Court’s exhibit.

{¶8} Fifth Third noticed an appeal from this order, and the trial court granted Fifth

Third’s motion to stay the order without bond pending the outcome of this appeal.

{¶9} Fifth Third asserts three assignments of error for this court’s review:

[1.] The trial court committed prejudicial error in entering its January 7, 2025 order compelling [Fifth Third] to produce documents protected from disclosure by the attorney-client privilege and/or the attorney work-product doctrine.

[2.] The trial court committed prejudicial error in entering its January 7, 2025 order compelling [Fifth Third] to produce documents protected from disclosure by the attorney work-product doctrine without a showing of good cause pursuant to Civil Rule 26(B)(4) from [Tall Oaks].

[3.] The trial court committed prejudicial error in entering its December 11, 2024 order compelling [Fifth Third] to produce its putatively privileged documents for in camera review where [Tall Oaks] failed to make an adequate factual showing that in camera review is necessary to establish the validity of Fifth Third’s privilege assertions.

{¶10} Fifth Third’s first two assignments of error pertain to the trial court’s entry

ordering the disclosure of the controverted documents, while its third assignment of error

relates to the trial court’s entry ordering an in camera review of those documents. We

begin with the third assignment of error.

PAGE 3 OF 15

Case No. 2025-L-003 {¶11} Initially, Tall Oaks asserts that the third assignment of error is not properly

before us because the entry ordering Fifth Third to produce documents under seal for in

camera review is not a final appealable order under R.C. 2505.02. Appellate courts are

limited to reviewing only “final orders” of inferior courts. See Ohio Const., art. IV,

§ 3(B)(2); State v. Glenn, 2021-Ohio-3369, ¶ 10.

{¶12} We would agree with Tall Oaks’s position had Fifth Third immediately

noticed an appeal from the entry ordering the in camera review. “An in camera inspection

is not an order that requires the disclosure of materials to another party. Therefore, orders

for an in camera inspection do not constitute final orders.” Blue Technologies Smart

Solutions, LLC v. Ohio Collaborative Learning Solutions, Inc., 2022-Ohio-1935, ¶ 15 (8th

Dist.), citing Daher v. Cuyahoga Community College Dist., 2018-Ohio-4462, ¶ 16. Here,

however, the trial court has ordered the disclosure of documents claimed to be privileged,

which is a final appealable order. Burnham v. Cleveland Clinic, 2016-Ohio-8000, ¶ 2. As

such, the trial court’s decision to conduct an in camera review of those documents is

immediately reviewable. See, e.g., Blue Technologies at ¶ 16 (where the Eighth District

held that it had jurisdiction to review the entry ordering an in camera inspection because

the trial court had ordered the disclosure of documents claimed to be confidential or

privileged, and that order was final and appealable); see also Stull v. Summa Health Sys.,

2024-Ohio-5718 (where, in an appeal from the final order granting a motion to compel the

production of presumptively privileged documents, the Supreme Court of Ohio also

reviewed the trial court’s decision not to conduct an in camera review).

{¶13} Accordingly, we proceed to the merits of the third assignment of error, in

which Fifth Third argues that the trial court erred in granting Tall Oaks’s motion for in

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