[Cite as Carter v. Gestalt Inst. of Cleveland, Inc., 2013-Ohio-5748.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 99738




                                      JOHN D. CARTER
                                                              PLAINTIFF-APPELLANT

                                                       vs.


          GESTALT INSTITUTE OF CLEVELAND, INC.

                                                              DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                      Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                      Case No. CV-729382

        BEFORE:             Boyle, P.J., Jones, J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                               December 26, 2013
ATTORNEYS FOR APPELLANT

Stephen S. Ellsesser
Timothy N. Toma
Toma & Associates, L.P.A., Inc.
33977 Chardon Road
Suite 100
Willoughby Hills, Ohio 44094


ATTORNEYS FOR APPELLEE

Andrew J. Dorman
Adam J. Davis
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115
MARY J. BOYLE, P.J.:

       {¶1} Plaintiff-appellant, John Carter, appeals the trial court’s decision granting

the motion to compel filed by defendant-appellee, Gestalt Institute of Cleveland, Inc.

(“Gestalt”).   He raises the following three assignments of error:

       I. The trial court erred in ordering plaintiff to produce a transcript from
       criminal proceedings that were sealed pursuant to Ohio Rev. Code
       2953.52, et seq., because there is no authority to unseal appellant’s records.

       II. The trial court erred in creating a new waiver that would allow access
       to sealed records of criminal proceedings where there is no authority to
       support access.

       III. The trial court erred in ignoring appellant’s right to deny that the trial
       transcript at issue exists.

       {¶2} Finding no merit to the appeal, we affirm.

                               Procedural History and Facts

       {¶3} In June 2010, Carter filed the underlying action against Gestalt, asserting a

single claim for indemnification.    According to the complaint, “Carter was indicted for

charges of theft against Gestalt” pursuant to R.C. 2913.02(A)(2) in “State of Ohio v.

John Carter (CR-07-503406).”          The complaint further alleges that “Carter was

acquitted of said charges pursuant to Ohio [Crim.] Rule 29 on September 4, 2008 and his

record was subsequently expunged on March 3, 2009.”

       {¶4} Relying on R.C. 1702.12(E), Ohio’s statutory authority recognizing a

corporation’s indemnification powers, and Gestalt’s Code of Regulations, Carter seeks

indemnification of the costs for defending the criminal action. Specifically, Carter

alleges that he is entitled to indemnification because he “was involved in the above
 mentioned criminal action by reason of the fact that he was a director of Gestalt.”

 According to the complaint, “Gestalt provides for indemnification of any director or

 officers of the corporation as it is permitted to indemnify by and under Ohio Rev. Code

 1702.12(E).”       He seeks to recover $50,093.50 — the amount of attorney fees and

 expenses incurred in defending the criminal action.

            {¶5} Shortly after Carter’s filing of the lawsuit, the parties mutually agreed to a

 stipulated entry for a protective order and to seal the record in this case.             The parties

 specifically stipulated that any document pertaining to the previous criminal proceedings

 of Carter as set forth in Case No. CR-07-503406, or matters specifically related thereto,

 shall be filed with the clerk of courts under seal subject to further order of the trial court.

  The stipulated entry, which the trial court adopted and issued as an order, also

 contained other safeguards to limit the dissemination of the confidential and sensitive

 information covered under the protective order.1 For example, the order prohibited

 “any information obtained during the discovery process relating to the criminal matter




            Although Civ.R. 26(C) grants to the court the discretionary power to seal deposition
        1


transcripts or other documents contained in discovery when “good cause” is shown, “requests for
protective and confidentiality orders should be viewed by trial courts with abundant skepticism and
granted only begrudgingly.” Adams v. Metallica, Inc., 143 Ohio App.3d 482, 490-491, 758 N.E.2d
286 (1st Dist.2001), citing Fitzgerald, Note, Sealed v. Sealed: A Public Court System Going Secretly
Private (1990), 6 J.L. & Pol. 381, 382. In this case, the trial court did not limit its protective order
simply to discovery. Given the “open courts” provision of the Ohio Constitution and Ohio’s Public
Records Act, we question the basis for the trial court ordering such a broad protective order, allowing
the parties’ counsel to “designate any pleading, or discovery material as being subject to this
protective order, and * * * placed under seal” by the trial court.
(CR-07-503406)” from being “turned over to any third party without the authorization of

this court, or the authorization of both parties and counsel.”

       {¶6} While the parties’ cross-motions for summary judgment were pending with

the trial court, Gestalt filed a motion to compel discovery and/or motion for an in camera

inspection of any and all documents related to Carter’s criminal case, arguing that the

evidence was relevant and necessary to Gestalt’s defense of the case.        Gestalt argued

that Carter had waived any privilege covering the documents by electing to use a

document from his criminal case to aid in the prosecution of his civil claim. Gestalt

further contended that Carter cannot hide behind his expungement when it suits his

purposes to avoid the discovery of information that may hinder his claim. Gestalt

alternatively sought an in camera inspection by the court to determine what documents

should be produced.

       {¶7} Carter opposed Gestalt’s motion, pointing out that the issue of the

discovery of the criminal case had already been determined to be off limits.

       {¶8} On December 28, 2012, the trial court issued an order denying both

parties’ cross-motions for summary judgment. With respect to Gestalt’s motion to

compel, the trial court granted the motion in part, stating the following:

              Plaintiff shall produce all formerly public records, including the
       docket and related filings, related to the underlying criminal case (Case
       No. CR-07-503406). As all previous filings have been made under seal,
       the parties shall continue filings in this case under seal.

       {¶9} Following a pretrial, the new trial judge who took over the case, set a

deadline for the parties to brief issues related to the interpretation of the court’s
December 28, 2012 order in response to Carter’s claim that the trial transcript of the

criminal proceeding was not a “public record,” and therefore did not need to be

produced. Carter filed a brief outlining his position that he is not required to produce a

transcript from his criminal proceedings because the records have been expunged.

Gestalt, on the other hand, argued that Carter has waived any privilege.         After the

matter was briefed, the trial court issued the following order:

              The court’s order of 12/28/2012 is reiterated. Defendant’s motion
       to compel is granted.          Plaintiff has brought this litigation for
       indemnification and therefore cannot stand on the fact that the record is
       sealed to keep relevant information from defendant during the discovery
       process. Pursuant to this court’s 12/28/12 order, plaintiff is hereby
       ordered to produce the referenced transcript to the defendant within seven
       days of journalization of this entry.


       {¶10} From this order, Carter now appeals.

                                 Sealed Official Records

       {¶11} In his three assignments of error, Carter argues that the trial court erred in

ordering him to produce a transcript from criminal proceedings that were sealed pursuant

to R.C. 2953.52. He argues that the trial court had no authority to order his record

unsealed and that the information is not subject to disclosure.

       {¶12} R.C. 2953.52 governs the sealing of official records after a not guilty

finding, dismissal of proceedings, or no bill. The statute allows any person, “who is

found not guilty of an offense by a jury or a court or who is the defendant named in a

dismissed complaint, indictment, or information,” or “who a no bill is entered by a grand

jury” to apply to the court for an order to seal the person’s official records in the case.
R.C. 2953.52(A)(1) and (2).      The statute sets forth certain criteria that the court must

examine, and if all the criteria weighs in favor of the movant, then the court “shall issue

an order directing that all official records pertaining to the case be sealed and that, except

as provided in section 2953.53 of the Revised Code, the proceedings in the case be

deemed not to have occurred.”     R.C. 2953.52(B)(2)(a)-(d) and (B)(4).

       {¶13} R.C. 2953.53 governs the order to seal records and public office or

agency’s index of sealed records. Relevant to this appeal, R.C. 2953.53(D) provides in

pertinent part:

               A public office or agency also may maintain an index of sealed
       official records, in a form similar to that for sealed records of conviction as
       set forth in division (F) of section 2953.32 [ — statute that deals with
       sealing of record of conviction —] of the Revised Code, access to which
       may not be afforded to any person other than the person who has custody
       of the sealed official records. The sealed official records to which such
       an index pertains shall not be available to any person, except that the
       official records of a case that have been sealed may be made available to
       the following persons for the following purposes:

              (1) To the person who is the subject of the records upon written
       application, and to any other person named in the application, for any
       purpose;

              (2) To a law enforcement officer who was involved in the case, for
       use in the officer’s defense of a civil action arising out of the officer’s
       involvement in that case;

              (3) To a prosecuting attorney or the prosecuting attorney’s assistants
       to determine a defendant’s eligibility to enter a pre-trial diversion program
       established pursuant to section 2935.36 of the Revised Code;
                (4) To a prosecuting attorney or the prosecuting attorney’s assistants

         to determine a defendant’s eligibility to enter a pre-trial diversion program

         under division (E)(2)(b) of section 4301.69 of the Revised Code.

         {¶14} Pointing to the exceptions enumerated in R.C. 2953.53(D)(1)-(4), Carter

argues that the trial court had no authority to order his record unsealed because none of

the exceptions apply. In support of his argument, he relies on several Ohio cases that

recognize that courts have no discretion in unsealing criminal records and that records

may be unsealed only for the exceptions enumerated under the statute. See, e.g., Akron

v. Frazier, 142 Ohio App.3d 718, 723, 756 N.E.2d 1258 (9th Dist.2001); State v.

Wenninger, 12th Dist. Brown No. CA2009-07-026, 2010-Ohio-1009. To the extent that

one Ohio court has decided the issue differently, Carter maintains that case is an

“outlier” and stands for a narrow exception not applicable in this case. See State v.

Vanzandt, 1st Dist. Hamilton No. C-130079, 2013-Ohio-2290, discretionary appeal

allowed, 136 Ohio St.3d 1491, 2013-Ohio-4140, 994 N.E.2d 462.

         {¶15} We find Carter’s arguments, however, unpersuasive.           Here, the parties

wrongfully characterize the trial court’s ruling as “unsealing” Carter’s criminal record

under R.C. 2953.53(D).       There was never a motion to unseal the record before the

court.    Nor did the court order that the record be “unsealed.”      The cases referenced

above all deal with the precise issue of unsealing a record. This is not the issue in this

case, and therefore we need not resolve whether a trial court has “judicial power” apart
 from the enumerated grounds set forth in R.C. 2953.53(D) to grant access to sealed

 records and order a record unsealed.2

                                           Discovery Issue

            {¶16} The record reveals that the court granted Gestalt’s motion to compel,

 ordering Carter to produce a copy of his trial transcript, which Carter already has in his

 possession.3 The trial court also ordered Carter to produce “all formerly public records,

 including the docket and related filings, related to the underlying criminal case.”                The

 issue in this case, therefore, is whether the trial court properly granted Gestalt’s motion

 to compel in accordance with the rules of civil discovery.

            {¶17} Civ.R. 26(B) provides that parties may obtain discovery on any

 unprivileged matter that is relevant to the subject matter involved in the pending action.

 Although the information sought need not itself be admissible at trial, it should appear

 “reasonably calculated to lead to the discovery of admissible evidence.” Id.

            {¶18} Generally, a discovery dispute is reviewed under an abuse-of-discretion

 standard. Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, 943

 N.E.2d 514, ¶ 13.      “However, if the discovery issue involves an alleged privilege, it is a

 question of law that must be reviewed de novo.”            Id.; see also J&C Marketing, L.L.C. v.



           We note that the Ohio Supreme Court has accepted this issue for review and the matter is
        2


currently being briefed before the court in State v. Vanzandt, 136 Ohio St.3d 1491, 2013-Ohio-4140,
994 N.E.2d 462.

           As part of the total fees that Carter seeks indemnification, the cost of the transcript of the
        3


criminal proceedings is included.
McGinty, 8th Dist. Cuyahoga No. 99676, 2013-Ohio-4805, ¶ 9 (applying de novo

standard of review to prosecutor’s claim that law enforcement investigatory privilege

applied).

       {¶19} Carter maintains that his right to privacy in his sealed records, as

recognized by R.C. 2953.52, et seq., is absolute and not discoverable because no

enumerated exception to R.C. 2953.53(D) applies in this case.      In essence, he contends

that his sealed records are afforded a cloak of confidentiality, rendering them privileged

and undiscoverable in civil litigation. He further points to R.C. 2953.55, arguing that

he has an absolute right to deny the existence of the sealed records, and in particular, his

criminal trial transcript.

       {¶20} Contrary to Carter’s assertion, however, we do not find that the statutory

scheme contained in R.C. 2953.51 – 2953.56 provides an absolute bar to the discovery of

his sealed records in the course of civil litigation. The statutory scheme does not

address the issue of the discovery of sealed records in civil litigation.        While the

statutory scheme clearly prohibits a “public office or agency” from granting access to

sealed records absent the enumerated exceptions and even criminally punishes “an

officer or employee of the state or any of its political subdivisions” from releasing or

disseminating sealed records, the statute does not prevent Carter from obtaining and

disclosing his sealed records.   See R.C. 2953.53 and 2953.55. Indeed, Carter has an

absolute right to access this information under R.C. 2953.53(D)(1). See Frazier, 142

Ohio App.3d 718 at 723, 756 N.E.2d 1258.            “The statute does not even require
intervention by the court for individuals given access under R.C. 2953.53(D).”

Vanzandt, 1st Dist. Hamilton No. C-130079, 2013-Ohio-2290, at ¶ 12.

       {¶21} Here, the trial court’s order did not direct any public office or agency to

release the sealed records at issue.   Instead, the trial court ordered Carter to produce

these records, and in particular the trial transcript, which he has in his possession.   The

trial court’s order compels Carter to produce relevant information that he has an absolute

right to under the law.    Under these circumstances, we fail to see any privilege that

allows Carter to deny Gestalt access to these documents.     The protection afforded under

the statutory scheme is not absolute, especially when Carter has placed the sealed

criminal proceedings at issue by pursuing the indemnity claim. While Carter has the

right to prosecute his indemnification claim, he does not have the concomitant right to

control discovery in the civil case.

                        Right to Deny Existence of Trial Transcript

       {¶22} Relying on R.C. 2953.55(A), Carter argues that he has an absolute right to

deny the existence of the sealed trial transcript, and therefore cannot be compelled to

produce it.

       {¶23} R.C. 2953.55(A) provides a shield to any person whose records have been

sealed, expressly granting such a person the right to deny that the records exist.

Specifically, the statute provides the following:

              In * * * any appearance as a witness, or any other inquiry, a person

       may not be questioned with respect to any record that has been sealed
       pursuant to section 2953.52 of the Revised Code. If an inquiry is made in

       violation of this section, the person whose official record was sealed may

       respond as if the arrest underlying the case to which the sealed official

       records pertain and all other proceedings in that case did not occur, and the

       person whose official record was sealed shall not be subject to any adverse

       action because of the arrest, the proceedings, or the person’s response.

       {¶24} Although we recognize the protection afforded under R.C. 2953.55, we

find that Carter has forfeited the right by filing the underlying lawsuit. The thrust of the

underlying litigation initiated by Carter is premised upon the sealed criminal proceedings

and whether he was prosecuted “by reason of the fact that he was a director of Gestalt.”

In the complaint filed in this case, Carter specifically identified the criminal proceedings

that have been sealed and disclosed the offense that he was indicted on in those

proceedings. By doing so, he cannot subsequently deny selected information related to

the same proceedings by invoking the statute.       Otherwise, such a tactic gives Carter an

unfair advantage in the litigation, designating Carter the gatekeeper of the evidence in

the proceedings, including evidence that may be beneficial to Gestalt’s defense.       While

the statute is clearly intended to shield a person’s confidential sealed records, it is not

intended to operate as both a shield and a sword.

       {¶25} Carter maintains that “[b]ecause his absolute and substantial right to have

his criminal records remain sealed is paramount, [he] has chosen to pursue his indemnity

claim without them.” Such an argument suggests that the records only stand to support
Carter’s claim.     But the reverse could equally be true, i.e., the records could

demonstrate that Carter was not prosecuted “by reason of the fact that he was a director

of Gestalt,” thereby proving Gestalt’s defense. By granting the motion to compel, the

trial court properly recognized that Carter cannot control the evidence that Gestalt may

use in support of its defense. This is not the purpose of R.C. 2953.55.

                                 Privacy Interest Protected

       {¶26} The trial court clearly balanced two competing interests in this case and

determined that Carter’s privacy interest does not trump Gestalt’s right to defend itself

on the claim in this case. Although the trial court granted Gestalt’s motion to compel,

the use of the sealed records are still subject to the protective order issued by the trial

court and not available to third parties or the general public.   The trial court specifically

prohibited “any information obtained during the discovery process relating to the

criminal matter (CR-07-503406)” from being “turned over to any third party without the

authorization of this court, or the authorization of both parties and counsel.”

                                        Conclusion

       {¶27} Having found that there is no absolute privilege that bars the discovery of

Carter’s sealed official records, we find that the trial court did not err in compelling

Carter to produce them. Carter’s three assignments of error are overruled.

       {¶28} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

LARRY A. JONES, SR., J., and
PATRICIA ANN BLACKMON, J., CONCUR
