[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Grand Jury Proceeding of John Doe, Slip Opinion No. 2016-Ohio-8001.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-8001
                  IN RE GRAND JURY PROCEEDING OF JOHN DOE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as In re Grand Jury Proceeding of John Doe, Slip Opinion No.
                                    2016-Ohio-8001.]
Final, appealable order—Grand jury subpoena ordering production of
        documents—Privilege—Order denying motion to quash grand jury
        subpoena and ordering party to testify or produce documents was final and
        appealable—Judgment reversed and cause remanded.
    (Nos. 2015-1181 and 2015-1182—Submitted February 24, 2016—Decided
                                   December 7, 2016.)
   APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga County,
                                       No. 102977.
                                  _________________
                                 SUPREME COURT OF OHIO




                                SYLLABUS OF THE COURT
1. An order denying a motion to quash a grand jury subpoena and ordering a party
        to testify or produce documents is an order granting or denying a provisional
        remedy within the meaning of R.C. 2505.02(A)(3).
2. An order enforcing a grand jury subpoena and ordering the production of
        allegedly privileged information is a final order pursuant to R.C.
        2505.02(B)(4).
                                    _________________
        LANZINGER, J.
        {¶ 1} In this case, we are asked to determine whether an order denying a
motion to quash a grand jury subpoena and ordering a party to testify or produce
documents is a final order that may be appealed. We hold that it is.
                                    I. Case Background
        {¶ 2} During the course of grand jury proceedings, the state of Ohio1 issued
eight grand jury subpoenas to individuals associated with appellants, an Ohio
limited partnership and the president of its general partner.2 Appellants moved to
quash the subpoenas, which sought documents and testimony, arguing that they
required appellants and their former attorneys to disclose information protected
variously by the attorney-client privilege, the attorney work-product doctrine, and
the common-interest doctrine. The trial court issued an entry denying the motions,
finding that the material sought was no longer or never had been privileged.
        {¶ 3} Appellants appealed to the Eighth District Court of Appeals, which
sua sponte ordered appellants to show cause why their appeal should not be
dismissed for lack of a final order. After the parties briefed the issue, the court of
appeals held that the trial court’s journal entry did not constitute a final order,


1. Though self-identified as “appellee,” the state supports appellants’ positions.
2. The documents in this case have been filed under seal. We accordingly refrain from identifying
appellants.




                                                2
                                January Term, 2016




reasoning that grand jury proceedings are not “actions” under R.C. 2505.02(A)(3)
and that an order requiring production of privileged information in response to a
grand jury subpoena is not a provisional remedy subject to appeal under R.C.
2505.02(B)(4). The Eighth District certified a conflict between its decision and
those of the Fourth District Court of Appeals in In re Grand Jury Subpoena Duces
Tecum Directed to the Keeper of Records of My Sister’s Place, 4th Dist. Athens
No. 01CA55, 2002-Ohio-5600, and the Tenth District Court of Appeals in State v.
Boschulte, 10th Dist. Franklin No. 02AP-1053, 2003-Ohio-1276.
       {¶ 4} We accepted the conflict certified to us by the Eighth District Court
of Appeals: “Whether an order denying a motion to quash a grand jury subpoena
and ordering a party to testify and/or produce documents is an order granting or
denying a provisional remedy within the meaning of R.C. 2505.02(A)(3)?” 143
Ohio St.3d 1477, 2015-Ohio-3958, 38 N.E.3d 900. We also accepted jurisdiction
over appellants’ two propositions of law:


       1. An order enforcing a grand jury subpoena to produce privileged
       information is a final, appealable order pursuant to R.C.
       2505.02(B)(4).
       2. An order enforcing a grand jury subpoena to produce privileged
       information is a final, appealable order pursuant to R.C.
       2505.02(B)(1).


Id. Upon accepting both the conflict and the jurisdictional appeal, we consolidated
the two cases. Id.
                                    II. Analysis
       {¶ 5} We note at the outset of our analysis that the issues present in this case
are related to, yet distinct from, the issues present in Burnham v. Cleveland Clinic,
___ Ohio St.3d ___, 2016-Ohio-8000, __ N.E.3d __. In Burnham, we were




                                          3
                             SUPREME COURT OF OHIO




presented the question of whether 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). Id. at ¶ 2. In this case, we also address the appealability
of orders compelling production of documents, but we do so in the unique context
of grand jury proceedings.
        {¶ 6} Appellants argue that the appellate court improperly used a definition
of the word “action” from R.C. 2307.01 to rule that an order denying a motion to
quash a grand jury subpoena and commanding a party to reveal privileged
information is not an order denying a provisional remedy under R.C.
2505.02(B)(4). The state agrees with appellants that a motion to quash a subpoena
is a final order.
Which Statutes Apply?
        {¶ 7} The statute that discusses final orders is R.C. 2505.02. It begins by
defining “substantial right,” “special proceeding,” and “provisional remedy.” R.C.
2505.02(A)(3) defines a “provisional remedy” as


        a proceeding ancillary to an action, including but not limited to, a
        proceeding for a preliminary injunction, attachment, discovery of
        privileged matter, suppression of evidence, a prima-facie showing
        pursuant to section 2307.85 or 2307.86 of the Revised Code, a
        prima-facie showing pursuant to section 2307.92 of the Revised
        Code, or a finding made pursuant to division (A)(3) of section
        2307.93 of the Revised Code.


(Emphasis added.)
        {¶ 8} Division (B) then sets forth seven situations in which an order is a
final order that may be appealed, one of which is




                                         4
                                January Term, 2016




               (4) An order that grants or denies a provisional remedy and
       to which 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.


R.C. 2505.02(B)(4).
How Have Appellate Courts Interpreted Motions to Quash Grand Jury Subpoenas?
       {¶ 9} In this case, the Eighth District Court of Appeals determined that
“action,” undefined in R.C. 2505.02, was critical to that statute’s meaning. The
court turned to the definition of “action” found in R.C. 2307.01, which provides,
“An action is an ordinary proceeding in a court of justice, involving process,
pleadings, and ending in a judgment or decree, by which a party prosecutes another
for the redress of a legal wrong, enforcement of a right, or the punishment of a
public offense.”
       {¶ 10} The court reasoned that because grand jury proceedings are
investigatory proceedings from which no judgment or decree results, grand jury
proceedings are not actions that can be prosecuted to a judgment. As a result, the
court of appeals held that a ruling on a motion to quash a grand jury subpoena does
not grant or deny a provisional remedy pursuant to R.C. 2505.02(B)(4). In so
concluding, the Eighth District remarked, “[W]e are troubled that a trial court ruling
concerning potentially privileged information is not subject to immediate appellate
review.” The court continued, however, “[T]here are other means by which the
question of privilege can be raised and determined, subject to appellate review,”
without specifying what those means might be.




                                          5
                              SUPREME COURT OF OHIO




       {¶ 11} The first of two cases certified as in conflict with the Eighth District
is In re Grand Jury Subpoena Duces Tecum Directed to the Keeper of Records of
My Sister’s Place, 4th Dist. Athens No. 01CA55, 2002-Ohio-5600. In that case,
the Fourth District Court of Appeals took a different approach in defining what a
ruling on a motion to quash a grand jury subpoena is, reasoning, “Grand juries are
a province strictly for criminal proceedings and a motion to quash a grand jury
subpoena is an ancillary action to the grand jury proceedings.” (Emphasis added.)
Id. at ¶ 9. In reaffirming a previous entry that characterized an order granting a
motion to quash a grand jury subpoena as a final order under R.C. 2505.02(B)(4),
the Fourth District noted that it had previously stated, “[A] motion to quash a grand
jury subpoena was a provisional remedy because it involved a proceeding that is
ancillary to, i.e., attendant upon or aids, the grand jury.” Id. at ¶ 12. Thus, implicit
in the Fourth District’s decision was a conclusion that a grand jury proceeding was
an action within the meaning of “provisional remedy” under R.C. 2505.02(A)(3).
       {¶ 12} The second conflicting decision is State v. Boschulte, 10th Dist.
Franklin No. 02AP-1053, 2003-Ohio-1276. The Tenth District Court of Appeals
relied upon the Fourth District’s analysis in deciding that “an order seeking to
compel the production of documents pursuant to a grand jury subpoena is a
provisional remedy because it involves a proceeding that is ancillary to, i.e.,
attendant upon or aids the grand jury.” Id. at ¶ 12. In so holding, the Tenth District
explained that an order compelling the production of documents pursuant to a grand
jury subpoena satisfies both R.C. 2505.02(B)(4)(a) and (b) because the order
“determine[s] the action with respect to the provisional remedy and prevent[s] a
judgment in favor of appellant with respect to the provisional remedy,” and the
appellant “would not have a meaningful or effective remedy by appealing the
decision following the final judgment in the action because appellant would have
already produced the disputed original documents.” Boschulte at ¶ 13. The Tenth
District accordingly held that a final order exists in such a situation. Id.




                                           6
                               January Term, 2016




Is the Grand Jury Proceeding an Action for Purposes of R.C. 2505.02?
       {¶ 13} The ultimate question before us is whether a ruling granting or
denying a motion to quash a grand jury subpoena is a final order.
       {¶ 14} But because R.C. 2505.02(A)(3) specifies that a provisional remedy
is “a proceeding ancillary to an action” and a motion to quash grand jury subpoenas
is ancillary to the grand jury proceedings, we must determine whether a grand jury
proceeding constitutes an action—a question we have not previously decided.
       {¶ 15} We have explained that an action is distinct from a special
proceeding:


       “[W]e suppose that any ordinary proceedings in a court of justice,
       by which a party prosecutes another for the enforcement or
       protection of a right, the redress or prevention of a wrong, or the
       punishment of a public offense, involving the process and pleadings,
       and ending in a judgment, is an action, while every proceeding other
       than an action, where a remedy is sought by an original application
       to a court for a judgment or an order, is a special proceeding.”


(Brackets sic.) Bernbaum v. Silverstein, 62 Ohio St.2d 445, 446-447, 406 N.E.2d
532 (1980), quoting Missionary Society v. Ely, 56 Ohio St. 405, 407, 47 N.E. 537
(1897). We noted the dichotomy between actions and special proceedings in
Polikoff v. Adam, 67 Ohio St.3d 100, 616 N.E.2d 213 (1993): “Orders that are
entered in actions that were recognized at common law or in equity and were not
specially created by statute are not orders entered in special proceedings pursuant
to R.C. 2505.02.” Id. at syllabus. Later, we applied the reasoning from Polikoff to
the context of grand jury proceedings in holding that “[g]rand jury proceedings,
having existed at common law, are not ‘special proceedings,’ notwithstanding the
fact that they have been codified.” In re Grand Jury, 76 Ohio St.3d 236, 238, 667




                                         7
                             SUPREME COURT OF OHIO




N.E.2d 363 (1996), citing State ex rel. Doerfler v. Price, 101 Ohio St. 50, 54, 128
N.E. 173 (1920).
       {¶ 16} Thus, we have clearly stated that grand jury proceedings are not
special proceedings. This fact forecloses any reliance by appellants on R.C.
2505.02 (B)(2), which states that “[a]n order that affects a substantial right made in
a special proceeding” is a final, appealable order. The implication of Bernbaum
and Polikoff is that because they are not special proceedings, grand jury proceedings
must be actions. While they do not fit under the definition of “action” set forth in
R.C. 2307.01 and used by the Eighth District, we agree with appellants that the
definition of “action” as set forth in our jurisprudence comports with a conclusion
that grand jury proceedings are actions for the purpose of determining whether a
final, appealable order exists under R.C. 2505.02.
       {¶ 17} R.C. Chapter 2307 specifically addresses civil actions, rather than
criminal or grand jury proceedings. We accordingly do not read R.C. 2307.01 as
setting forth the authoritative definition of “action” in the context of this case.
Instead, the definition supplied in Bernbaum is of more use. In that case, we
established that “any ordinary proceedings in a court of justice, by which a party
prosecutes another for the enforcement or protection of a right, the redress or
prevention of a wrong, or the punishment of a public offense, involving the process
and pleadings, and ending in a judgment, is an action * * *.” (Emphasis added.)
Bernbaum at 446. Grand jury proceedings are ordinary proceedings conducted in
courts of justice. During those proceedings, the state conducts a type of preliminary
prosecution seeking to redress a wrong against the public—a crime—and to punish
the offender.    The proceedings involve the regular process of our criminal
procedure and end in the grand jury’s production of either a no bill decision or true
bill decision, which will then result in a judgment for either the defendant or the
state. Under the broader definition of “action” supplied in Bernbaum, a grand jury
proceeding constitutes an action.




                                          8
                                January Term, 2016




Is an Order Enforcing a Grand Jury Subpoena and Ordering Production of
Allegedly Privileged Information a Final Order?
          {¶ 18} Because we conclude that a grand jury proceeding constitutes an
action, the next question before us is whether an order denying a motion to quash a
grand jury subpoena and ordering a party to testify or produce documents is an
order granting or denying a provisional remedy that is potentially subject to appeal
pursuant to R.C. 2505.02(B)(4). R.C. 2505.02(A)(3) defines a provisional remedy
as “a proceeding ancillary to an action.” As we have previously noted, the phrase
“ancillary to an action” is undefined in the Revised Code. State v. Muncie, 91 Ohio
St.3d 440, 448, 746 N.E.2d 1092 (2001). In Muncie, we held that for purposes of
R.C. 2505.02(A)(3), “ ‘[a]n ancillary proceeding is one that is attendant upon or
aids another proceeding.’ ” Id. at 449, quoting Bishop v. Dresser Industries, 134
Ohio App.3d 321, 324, 730 N.E.2d 1079 (1999). We further noted that “ancillary”
can be defined as “ ‘ “describing a proceeding attendant upon or which aids another
proceeding considered as principal.” ’ ”        Muncie at 449, quoting Sorg v.
Montgomery Ward & Co., Inc., 6th Dist. Erie No. E-98-057, 1998 WL 904945, *3
(Dec. 17, 1998), quoting Black’s Law Dictionary 78 (5th Ed.1979). Applying these
definitions, we held that a petition for forced medication under R.C. 2945.38 was a
provisional remedy ancillary to a criminal action undertaken by the state against an
incompetent defendant, because without the petition for forced medication, an
incompetent defendant would likely never be restored to legal competency. Muncie
at 450.
          {¶ 19} We similarly hold that an order denying a motion to quash a grand
jury subpoena and ordering a party to testify or produce documents is an order
granting or denying a provisional remedy as defined by R.C. 2505.02(A)(3). A
motion to quash a subpoena is a proceeding that aids the grand jury proceeding
because the decision on the motion will either allow or deny the grand jury access
to information that could be determinative in reaching a decision. The motion to




                                         9
                             SUPREME COURT OF OHIO




quash is accordingly “a proceeding ancillary to an action” and therefore a
provisional remedy pursuant to R.C. 2505.02(A)(3).
       {¶ 20} It thus remains for us to determine whether this provisional remedy
qualifies as a final order pursuant to R.C. 2505.02(B)(4). That statute specifies that
an order granting or denying a provisional remedy is a final order that may be
appealed when two criteria are met:


                (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.


       {¶ 21} “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).” Burnham, ___ Ohio St.3d __, 2016-Ohio-8000, __N.E.3d __, ¶
30 (Court opinion).     “Any order compelling the production of privileged or
protected materials certainly satisfies R.C. 2505.02(B)(4)(a) because it would be
impossible to later obtain a judgment denying the motion to compel disclosure if
the party has already disclosed the materials.” Id. at ¶ 21. Applying this reasoning,
we conclude that an order enforcing a grand jury subpoena and ordering production
of allegedly privileged information similarly determines the action and prevents a
judgment in favor of the appealing party with respect to the provisional remedy, for
once the information is produced, it would no longer be possible to obtain a
judgment preventing the disclosure of that information. The order in this case
accordingly meets the criteria set forth in R.C. 2505.02(B)(4)(a).




                                         10
                                     January Term, 2016




         {¶ 22} The second requirement in R.C. 2505.02(B)(4)—that the appealing
party would not be afforded a meaningful or effective remedy by an appeal
following final judgment—allows for appeals when the need for immediate review
outweighs the substantial interest in avoiding piecemeal litigation. See id. at ¶ 22.
When a party is compelled to produce material protected by the attorney-client
privilege, harm extends beyond the actual case being litigated and causes the loss
of a right that cannot be rectified by a later appeal, and R.C. 2505.02(B)(4)(b) is
accordingly satisfied. Id. at ¶ 2. Identical concerns are present in this case, so we
similarly conclude that the second requirement in R.C. 2505.02(B)(4) is met in this
case.3
         {¶ 23} Because both criteria set forth in R.C. 2505.02(B)(4) are met in this
case, we hold that an order enforcing a grand jury subpoena and ordering
production of allegedly privileged information is a final order pursuant to R.C.
2505.02(B)(4).
         {¶ 24} Our decision that a final order exists and that appeal is accordingly
possible is consistent with the axiom that a grand jury does not have power to
consider privileged information.           “[T]he grand jury’s subpoena power is not
unlimited. It may consider incompetent evidence, but it may not itself violate a
valid privilege, whether established by the Constitution, statutes, or the common
law.” United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 38 L.Ed.2d 561
(1974). Our conclusion that an order enforcing a grand jury subpoena and ordering
of allegedly privileged information is final and appealable thus fits within the

3
  In Burnham, we distinguished the protection provided by the attorney-work-product doctrine
from the protection provided by the attorney-client privilege. Id. at ¶ 16. While in this case,
appellants alleged protection arising from the attorney-client privilege, the attorney-work-product
doctrine, and the common-interest doctrine, the propositions of law in this case specifically
reference privileged materials. Our conclusion today that R.C. 2505.02(B)(4)(b) has been satisfied
accordingly applies only to information alleged to be protected by privilege. Given the procedural
posture of this case, we will not address whether the R.C. 2505.02(B)(4)(b) requirement is
satisfied with regard to any information alleged to be protected by the attorney- work-product
doctrine or the common-interest doctrine in this case.




                                                11
                             SUPREME COURT OF OHIO




framework of our criminal procedure, for the only way to prevent grand juries from
potentially violating a privilege and forcing parties to disclose privileged
information is to allow those parties the opportunity to appeal before divulging that
information.
                                  III. Conclusion
       {¶ 25} We accordingly hold that an order denying a motion to quash a grand
jury subpoena and ordering a party to testify or produce documents is an order
granting or denying a provisional remedy within the meaning of R.C.
2505.02(A)(3).    Furthermore, an order enforcing a grand jury subpoena and
ordering production of allegedly privileged information is a final order pursuant to
R.C. 2505.02(B)(4). We reverse the judgment of the Eighth District Court of
Appeals holding that the trial court’s order is not final, and we remand this cause
to the court of appeals so that it may proceed with the appeal.
                                                                   Judgment reversed
                                                                  and cause remanded.
       O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., concur.
       O’DONNELL, J., concurs in judgment and concurs in paragraph two of the
syllabus.
       KENNEDY, J., concurs in judgment only, with an opinion joined by FRENCH,
J.
                               _________________
       KENNEDY, J., concurring in judgment only.
       {¶ 26} I agree with the majority that a grand jury proceeding constitutes an
action for purposes of determining whether a final, appealable order exists pursuant
to R.C. 2505.02. However, the fact that an order was issued in a grand jury
proceeding, as opposed to a personal-injury action, is not relevant to a
determination as to whether R.C. 2505.02(B)(4) is satisfied. In other words,




                                         12
                               January Term, 2016




regardless of whether the type of action in which an order to compel is issued is
“unique,” the R.C. 2505.02(B)(4) analysis is unaffected.
       {¶ 27} R.C. 2505.02(B)(4) provides that an order that “grants or denies a
provisional remedy” is a final appealable order if the order “determines the action
with respect to the provisional remedy” and the “appealing party would not be
afforded a meaningful or effective remedy by an appeal * * *.” The majority’s
conclusion that the order at issue is a final, appeal order pursuant to R.C.
2505.02(B)(4) relies on this court’s holding in Burnham v. Cleveland Clinic, ____
Ohio St.3d ___, 2016-Ohio-8000, ____ N.E.3d ____, which distorts the history of
the work-product doctrine, ignores the constitutional underpinnings of Ohio’s
work-product doctrine, and misses the nuances of Civ.R. 26. Id. at ¶ 44 (Kennedy,
J., concurring in judgment only). Therefore, I concur in judgment only.
       {¶ 28} The appellants here moved to quash the subpoenas because the
information sought was protected by the “attorney-client privilege, the attorney-
work-product doctrine, and the common-interest doctrine.” Majority opinion at
¶ 2. Without determining whether appellants’ attorney-client privilege claim was
colorable, the majority, relying on Burnham, held the following: “[W]hen a party
is compelled to produce material protected by the attorney-client-privilege, harm
extends beyond the actual case being litigated and causes the loss of a right that
cannot be rectified by later appeal, and R.C. 2505.02(B)(4)(b) is accordingly
satisfied.” Majority opinion at ¶ 22.
       {¶ 29} This analysis raises questions. Is the majority declaring that all a
litigant need do to trigger a final, appealable order pursuant to R.C.
2505.02(B)(4)(b) is allege that the material sought is protected by the attorney-
client privilege? Or does a trial court, in addition to having to determine whether
the material is discoverable, also have to determine under which protected category
a document falls to know whether the order is a final, appealable order?




                                        13
                              SUPREME COURT OF OHIO




       {¶ 30} The majority answers appellants’ first proposition of law with the
following broad syllabus language. “[A]n order * * * ordering the production of
allegedly privileged information is a final order pursuant to R.C. 2505.02(B)(4).”
(Emphasis added.) Majority opinion at paragraph two of the syllabus.
        {¶ 31} This syllabus language causes confusion. Is the majority declaring
that all a litigant need do to qualify the order to release allegedly protected material
as a final, appealable order pursuant to R.C. 2505.02(B)(4)(b) is allege that the
material sought contains privileged information? Is the majority declaring that a
trial court need only determine whether the privilege was adequately “alleged”? By
“privileged,” does the majority mean in the “strict” or “loose” sense? See Burnham,
__ Ohio St. 3d __, 2016-Ohio-8000, ___ N.E.3d ___, ¶ 36. And does the trial court
have to concern itself with the “source of the privilege”? Id. at 44.
        {¶ 32} Regardless of how the majority attempts to avoid the problems this
court created in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d
633, the time has come to set the matter right. But once again we fail, instead
continuing the disservice we have done to the bar and bench that began in Chen.
This court now requires “privilege” to be applied in its “strict sense,” rather than its
“loose sense,” whatever these concepts mean, to determine whether an order
compelling discovery of a privileged document is a final, appealable order.
Burnham at ¶ 32 (Court opinion). As a result of this new legal architecture, trial
courts must now consider materials protected by attorney-client privilege in a
separate framework from those protected by work-product privilege, based on the
source to the privilege.     Id.   Apparently, gray areas do not exist, and such
distinctions are obvious.
        {¶ 33} Furthermore, Burnham wrongly declared that the work-product
privilege did not exist at common law, which is “[t]he body of law derived from
judicial decisions, rather than from statutes or constitutions.”         Black’s Law
Dictionary 334 (10th Ed.2014). This pronouncement ignores a wealth of English




                                          14
                                January Term, 2016




case law that “developed the concept of privilege to include all documents prepared
by or for counsel with a view to litigation.” Hickman v. Taylor, 329 U.S. 495, 510,
67 S.Ct. 385, 91 L.Ed. 451 (1947), fn. 9. Moreover, it also ignores that the work-
product privilege predated Hickman. Id. See also Ex parte Schoepf, 74 Ohio St. 1,
15, 77 N.E. 276 (1906), overruled in part on other grounds by ex parte Martin, 141
Ohio St. 87, 47 N.E.2d 388 (1943), paragraph four of the syllabus (reports made in
anticipation of possible litigation and that were in possession of counsel for use in
the suit were privileged). Clearly, the pronouncements of the English courts,
Hickman, and this court fall within the definition of common law.
       {¶ 34} The majority’s declaration also ignores the common-law component
of the work-product privilege in this state. See Burnham at ¶ 35 (Kennedy, J.,
concurring in judgment only). The majority ignores our recent acknowledgement
that Civ.R. 26 does not incorporate all the work-product doctrine. Squire, Sanders
& Dempsey, L.L.P v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-
4469, 937 N.E.2d 533, ¶ 58 (work-product doctrine extends to intangible work
product to which Civ.R. 26(B)(3) does not apply). Accordingly, common law
controls the resolution of some of this category of disputes.
       {¶ 35} Moreover, the majority’s treatment of the work-product privilege
diminishes the protection provided under the Civil Rules, notwithstanding that the
court’s authority to promulgate the rules is drawn from the Ohio Constitution. See
Burnham, ___ Ohio St.3d ___, 2016-Ohio-8000, ___ N.E.3d ___, ¶ 34 (Kennedy,
J., concurring in judgment only). Our procedural rules are controlling unless the
legislature enacts a conflicting law that affects a substantive right. See also Morris
v. Morris, __Ohio St.3d ___, 2016-Ohio-5002, ___ N.E.3d ___, ¶ 30.
       {¶ 36} The parsing of the term “privilege” in Burnham typifies the problem
we have brought upon ourselves by failing to recognize that Chen was wrongly
decided. In accord with my analysis in Burnham (Kennedy, J., concurring in
judgment only), Chen should be overruled pursuant to the tripartite test in Westfield




                                         15
                            SUPREME COURT OF OHIO




Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256,
paragraph one of the syllabus.
       {¶ 37} Accordingly, I concur in judgment only.
       FRENCH, J., concurs in the foregoing opinion.
                                 _________________
       Timothy McGinty, Cuyahoga County Prosecuting Attorney, and Matthew
E. Meyer and Christopher D. Schroeder, Assistant Prosecuting Attorneys; and
Daniel J. Kasaris, Senior Assistant Ohio Attorney General and Deputy Cuyahoga
County Prosecuting Attorney, for appellee.
       Walter Haverfield L.L.P., Ralph E. Cacarilla, and Darrell A. Clay; and
Tucker Ellis L.L.P. and John F. McCaffrey, for appellant partnership.
       Martin G. Weinberg, P.C., and Martin G. Weinberg; and Baker Hostetler,
L.L.P., George A. Stamboulidis, and Lisa M. Ghannoum, for appellant president.
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