[Cite as Wagner v. Dennis, 2012-Ohio-2485.]


                                      COURT OF APPEALS
                                   ASHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

JENNIFER WAGNER                                  JUDGES:
                                                 Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                      Hon. William B. Hoffman, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 11-COA-050
ADAM DENNIS

        Defendant-Appellee                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Ashland County Court of
                                              Common Pleas, Juvenile Division Case No.
                                              2010 4173


JUDGMENT:                                     Affirmed

DATE OF JUDGMENT ENTRY:                       June 4, 2012

APPEARANCES:

For Plaintiff-Appellant                       For Defendant-Appellee

DANIEL F. MAYNARD                             KIMREY D. ELZEER
Maynard & Associates                          Wickens, Herzer, Panza,
Attorneys at Law L.L.C.                       Cook & Batista Co.
246 West Liberty St.                          35765 Chester Road
Medina, Ohio 44256                            Avon, Ohio 44011-1262



Guardian Ad Litem

HOWARD GLICK
23 West Main Street
Ashland, Ohio 44805
Ashland County, Case No. 11-COA-050                                                   2

Hoffman, J.


      {¶1}    Plaintiff-appellant Jennifer Wagner (“Mother”) appeals the November 14,

2011 Judgment Entry entered by the Ashland County Court of Common Pleas, Juvenile

Division, which ordered her to answer certain questions posed to her during a discovery

deposition. Defendant-appellee is Adam Dennis (“Father”).

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Mother and Father are the biological parents of KMW (dob 7/23/09). In the

fall of 2009, Father filed a paternity action in the Medina County Court of Common

Pleas, Domestic Relations Division. The action was dismissed on September 29, 2010,

for lack of jurisdiction. On November 4, 2010, Mother filed a Complaint to Establish

Original Allocation of Paternal Rights and Responsibilities in the Ashland County Court

of Common Pleas, Juvenile Division.

      {¶3}    On April 1, 2011, Father filed a motion to obtain Mother’s medical and

psychological records. Mother filed a motion in opposition thereto. Via Magistrate’s

Order filed April 21, 2011, the magistrate ordered Mother to execute all necessary

releases to permit Father to access her medical and psychological records. Mother filed

a motion to set aside the magistrate’s order, which the trial court overruled. The trial

court scheduled the final hearing on Mother’s complaint for August 8, 2011.1

      {¶4}    Kimrey Elzeer, counsel for Father, deposed Mother on May 16, 2011.

Mother objected to a number of the questions posed to her at the deposition.     Father

propounded interrogatories and document requests upon Mother on June 13, 2011.



1
 The hearing was originally scheduled for May 23, 2011, was rescheduled for August 2,
2011, and rescheduled again for August 8, 2011.
Ashland County, Case No. 11-COA-050                                                       3


After Mother failed to answer the interrogatories and produce the requested documents,

Father filed a motion to compel discovery on July 29, 2011. On the same day, Father

also filed a motion to compel deposition testimony, asking the trial court to order Mother

to respond to seven questions she refused to answer during her deposition, to wit:

         {¶5}   1. Q. Have you ever used illegal drugs?

         {¶6}   2. Q. Why didn’t you see Dr. Korricky (Koricke)?

         {¶7}   3. Q. How is it that you selected Dr. Esson to conduct your assessment?

         {¶8}   4. Q. Did you make any attempts to go to the bank to get your records

from 2010?

         {¶9}   5. Q. What else do you plan to use as evidence at trial in support of your

claim?

         {¶10} 6. Q. And what else do you have?

         {¶11} 7. Q. And what do you have on the voice recorder?

         {¶12} The magistrate issued an order on August 2, 2011, instructing Mother to

answer all seven of the questions at issue. Mother filed a motion to stay and to set

aside the August 2, 2011 order, which the magistrate denied via order filed August 4,

2011. On August 8, 2011, the day of the final hearing, Mother filed a motion with the

trial court to set aside the magistrate’s August 4, 2011 order denying her motion to stay

and to set aside the magistrate’s August 2, 2011 order. The final hearing commenced

as scheduled. As a preliminary matter, Father stated the magistrate had not ruled on

his July 29, 2011 motion to compel discvoery. According to Father, the magistrate

indicated she would rule on the motion, if needed, as the trial progressed.        Mother
Ashland County, Case No. 11-COA-050                                                    4


proceeded with her case-in-chief. The magistrate continued the matter until November

21, and 22, 2011, for further hearing to complete the presentation of evidence.

         {¶13} The trial court conducted a hearing on Mother’s August 8, 2011 motion on

October 7, 2011. Via Judgment Entry filed November 14, 2011, the trial court set aside

the magistrate’s August 4, 2011 order.      The trial court ordered Mother to answer

questions #2, 3, 4, 5, and 7, but ruled Mother was not required to answer questions #1

and 6.

         {¶14} It is from this judgment entry Mother appeals, raising as her sole

assignment of error:

         {¶15} “I. THE TRIAL COURT ERRED ORDERING APPELLANT TO RESPOND

TO   DEPOSITION         QUESTIONS     BY   DISCLOSING       INFORMATION       THAT    IS

PROTECTED         BY    ATTORNEY-CLIENT       PRIVILEGE      AND    ATTORNEY-WORK

PRODUCT, AFTER THE FINAL HEARING HAD BEGUN AND APPELLANT HAD

ALREADY PRESENTED HER CASE AND RESTED WHERE APPELLANT WAS

PROVIDED        NO     EVIDENTIARY    HEARING      OR   OTHER      OPPORTUNITY       TO

RESPOND.”

                                               I

         {¶16} Mother’s assignment of error incorporates three separate issues. First,

Mother maintains the trial court erred in ordering her to respond to the deposition

questions at issue subsequent to the commencement of trial and her resting her case-

in-chief. Next, Mother argues the trial court erred by failing to conduct an evidentiary

hearing. Finally, Mother contends the trial court erred in ordering her to respond to the
Ashland County, Case No. 11-COA-050                                                      5


deposition questions as the information sought is protected by the attorney-client

privilege and/or constitutes attorney work product.

      {¶17} The Ohio Rules of Civil Procedure allow for liberal discovery. Pursuant to

Civ.R. 26(B)(1), the scope of discovery includes “ * * * any matter, not privileged, which

is relevant to the subject matter involved in the pending action, whether it relates to the

claim or defense of the party seeking discovery or to the claim or defense of any other

party * * *.” Trial courts are given broad discretion in the management of discovery.

State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 57, 295 N.E.2d 659. Thus,

an appellate court reviews discovery issues pursuant an abuse of discretion standard.

Geggie v. Cooper Tire & Rubber Co., Hancock App. No. 5-05-01, 2005-Ohio-4750, at ¶

25. Under this standard, reversal is warranted only where the trial court's attitude was

arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140.

      {¶18} Upon our review of the record, we find the trial court did not abuse its

discretion by ordering Mother to respond to the deposition questions after the hearing

had commenced before the magistrate. The magistrate was not able to complete the

hearing in one day.       Because additional time was necessary to complete the

presentation of evidence, we find Mother cannot establish any prejudice resulting

therefrom. Furthermore, contrary to Mother’s assertion, we find the trial court did, in

fact, conduct an evidentiary hearing on her motion to set aside the magistrate’s August

4, 2011 Order, denying her Motion to Stay and to set aside the magistrate’s August 2,

2011 Order.
Ashland County, Case No. 11-COA-050                                                    6


      {¶19} We now turn to Mother’s assertion the trial court erred in ordering her to

respond to the deposition questions as such sought information which is privileged. The

issue of whether the information sought is confidential and privileged from disclosure is

a question of law that should be reviewed de novo. Medical Mut. of Ohio v. Schlotterer,

122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, at ¶ 13; see also Roe v.

Planned Parenthood Southwest Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973,

912 N.E.2d 61, at ¶ 29. Privileges are to be strictly construed and “[t]he party claiming

the privilege has the burden of proving that the privilege applies to the requested

information.” Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d 53, 2008-Ohio-4333, 896

N.E.2d 769, at ¶ 17.

      {¶20} Mother has failed to provide this Court with a transcript of the October 7,

2011 hearing before the trial court.    Mother bears the burden of showing error by

reference to matters in the record. Knapp v. Edwards Lab. (1980), 61 Ohio St.2d 197;

State v. Prince (1991), 71 Ohio App.3d 694. An appellate court can reach its decision

only upon facts which are adduced in the trial court's proceeding and cannot base its

decision on allegations founded upon facts from outside of the record. Merillat v. Fulton

Cty. Bd. Of Commrs. (1991), 73 Ohio App.3d 459.

      {¶21} When portions of the transcript necessary for resolution of assigned errors

are omitted from the record, the reviewing court has nothing to pass upon and thus, as

to those assigned errors, the court has no choice but to presume the validity of the

lower court's proceedings, and affirm.” Knapp, supra.

      {¶22} Because Mother failed to provide this Court with a transcript of the

hearing, we may presume the validity of the lower court's proceedings and affirm.
Ashland County, Case No. 11-COA-050                                                       7


Notwithstanding the absence of a transcript, we find the trial court did not err in ordering

Mother to answer the questions. We find, as did the trial court, the questions at issue

do not require answers to which the privilege would apply.

       {¶23} Based upon the foregoing, we overrule Mother’s sole assignment of error.

       {¶24} The judgment of the Ashland County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Wise, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY


                                             s/ John W. Wise _____________________
                                             HON. JOHN W. WISE
Ashland County, Case No. 11-COA-050                                              8


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


JENNIFER WAGNER                           :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
ADAM DENNIS                               :
                                          :
       Defendant-Appellee                 :         Case No. 11-COA-050



       For the reasons stated in our accompanying Opinion, the judgment of the

Ashland County Court of Common Pleas is affirmed. Costs to Mother-Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE
