[Cite as McDade v. Morris, 2015-Ohio-4670.]




STATE OF OHIO                   )                        IN THE COURT OF APPEALS
                                )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

YULANDA MCDADE                                           C.A. No.   27454

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
TOM R. MORRIS                                            COURT OF COMMON PLEAS
                                                         COUNTY OF SUMMIT, OHIO
        Defendant                                        CASE No.   CV 2013-04-1821

        and

STATE FARM AUTOMOBILE
INSURANCE COMPANY

        Appellant

                                DECISION AND JOURNAL ENTRY

Dated: November 12, 2015



        HENSAL, Presiding Judge.

        {¶1}    Appellant, State Farm Automobile Insurance Company (“State Farm”), appeals

from the order of the Summit County Court of Common Pleas, denying its motion to quash.

This Court affirms in part and dismisses in part.

                                                    I.

        {¶2}    Plaintiff-Appellee, Yulanda McDade, and Defendant, Tom Morris, were involved

in a minor traffic collision. As a result of the collision, Ms. McDade sought treatment from a

chiropractor named Dr. Minas Floros and ultimately decided to file a personal injury suit against

Mr. Morris. State Farm insured Mr. Morris. Although State Farm was never named as a party in
                                                2


the personal injury suit, it became involved when Ms. McDade subpoenaed its records custodian

and two of its other employees.

       {¶3}    Ms. McDade decided to subpoena State Farm after Mr. Morris deposed Dr.

Floros. Mr. Morris deposed Dr. Floros regarding his patient intake procedures, his marketing

and billing practices, and his practice of referring patients to legal counsel. Mr. Morris did not

ask Dr. Floros any questions related to his treatment of Ms. McDade. Consequently, Ms.

McDade believed it was Mr. Morris’ intention to defend the lawsuit against him by discrediting

Dr. Floros.   In particular, she believed Mr. Morris meant to argue that Dr. Floros had an

arrangement with certain law firms and routinely profited from referring his patients to legal

counsel.

       {¶4}    It was Ms. McDade’s position that Dr. Floros referred his patients to legal counsel

when he knew there would be an issue with payment, due to his dealings with certain insurance

companies such as State Farm. Consequently, she sought evidence she could use to rehabilitate

Dr. Floros, should Mr. Morris decide to attack his credibility on the grounds set forth above. Ms.

McDade subpoenaed State Farm’s records custodian and asked the custodian to produce copies

of any policies, procedures, practices, and internal communications from 2004 to present that

dealt with State Farm’s handling of any first or third party claims “in which the Claimant has

undergone treatment at Akron [Square] Chiropractic, by Minas Floros, D.C., or any clinic owned

by Chiropractic Strategies Group * * *.”

       {¶5}    State Farm filed a motion to quash Ms. McDade’s subpoena on the basis that it

sought privileged or otherwise protected matter, required disclosure of facts or opinions held by

an expert, and subjected State Farm to an undue burden. Ms. McDade filed a brief in response.

Upon its review of their respective filings, the trial court denied State Farm’s motion to quash.
                                                3


Nevertheless, the court wrote that the parties were “not required to disclose privileged or

otherwise protected materials, and [had to] support any such claims in accordance with the

requirements of [Civil Rule] 45(D)(4).”

       {¶6}   State Farm now appeals from the trial court’s order and raises five assignments of

error for our review.    For ease of analysis, we consolidate and rearrange several of the

assignments of error.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING THE MOTION TO QUASH
       BECAUSE THE MCDADE SUBPOENAS ARE UNDULY BURDENSOME.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DENYING THE MOTION TO QUASH
       BECAUSE THE MCDADE SUBPOENAS IMPOSE AN UNDUE BURDEN BY
       UNNECESSARILY INJECTING EVIDENCE OF LIABILITY INSURANCE.

       {¶7}   In its first two assignments of error, State Farm argues that the trial court erred by

denying its motion to quash because Ms. McDade’s subpoena subjected it to an undue burden

and Ms. McDade failed to show that she had a substantial need for the materials she sought.

       {¶8}   “[C]ourts have broad discretion over discovery matters.” State ex rel. Citizens for

Open, Responsive & Accountable Gov’t v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, ¶ 18.

“As such, this Court generally applies an abuse of discretion standard of review in appeals from

discovery rulings, including a ruling on a motion to quash a subpoena.” Kaplan v. Tuennerman-

Kaplan, 9th Dist. Wayne No. 11CA0011, 2012-Ohio-303, ¶ 10. An abuse of discretion means

that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983).
                                                4


       {¶9}   Under Civil Rule 45(C)(3)(d), a trial court shall quash or modify a subpoena if it

“[s]ubjects a person to an undue burden.” The person seeking to quash “must establish ‘undue

burden.’” Bonewitz v. Red Ferris Chevrolet, Inc., 9th Dist. Wayne No. 01CA0006, 2001 WL

1094537, *2 (Sept. 19, 2001), quoting Civ.R. 45(C). Further, before filing a motion to quash

under the foregoing subsection, the subpoenaed person

       shall attempt to resolve any claim of undue burden through discussions with the
       issuing attorney. A motion filed pursuant to division (C)(3)(d) of [Civil Rule 45]
       shall be supported by an affidavit of the subpoenaed person or a certificate of that
       person’s attorney of the efforts made to resolve any claim of undue burden.

Civ.R. 45(C)(4). After the movant establishes undue burden, the party who issued the subpoena

then may argue that they have “a substantial need for the * * * material that cannot be otherwise

met without undue hardship * * *.” Civ.R. 45(C)(5); see also Future Communications, Inc. v.

Hightower, 10th Dist. Franklin No. 01AP-1175, 2002-Ohio-2245, ¶ 17-18. If the party who

issued the subpoena fails to show that they have a substantial need for the material that cannot

otherwise be met without undue hardship, the court must quash or modify the subpoena. Civ.R.

45(C)(5).

       {¶10} State Farm argued undue burden in the court below, but did not support its

argument with an affidavit “of the efforts made to resolve [its] claim of undue burden.” Civ.R.

45(C)(4). Ms. McDade objected to State Farm’s motion to quash, in part, because State Farm

had neglected to file a supporting affidavit. Similarly, Ms. McDade has argued on appeal that

the trial court acted reasonably in rejecting State Farm’s undue burden argument because State

Farm failed to file a supporting affidavit. State Farm did not respond to Ms. McDade’s objection

in the court below. Nor has it addressed her argument on appeal (i.e., by explaining that an

affidavit was unnecessary because its counsel certified the efforts that had been made to resolve

State Farm’s claim of undue burden). Because State Farm was required to comply with Civil
                                                  5


Rule 45(C)(4)’s affidavit or certification requirement in arguing undue burden, its failure to do

so warranted the denial of its motion to quash.

       {¶11} Even assuming that the trial court treated some of the language in State Farm’s

motion to quash as a certification under Civil Rule 45(C)(4),1 we cannot conclude that State

Farm established undue burden. State Farm’s argument on appeal is that Ms. McDade failed to

demonstrate a substantial need for the information she sought. It argues that “[Civil Rule]

45(C)(5) protects a non-party by presuming that a subpoena is unduly burdensome unless the

proponent affirmatively shows both 1) a ‘substantial need’ for the information in order to litigate

its case, and 2) a lack of any reasonable alternative to obtaining the needed information.”

(Emphasis added.) According to State Farm, “[t[here is no initial burden upon the recipient of

the subpoena beyond voicing an objection of undue burden.” State Farm is mistaken. It was

State Farm’s burden to establish that the subpoena subjected it to undue burden. See Bonewitz,

2001 WL 1094537, at *2; see also Future Communications, Inc., 2002-Ohio-2245, at ¶ 17-18.

State Farm only cast the materials Ms. McDade sought as irrelevant to her personal injury suit.

It did not argue that it would be extremely time-consuming or costly to produce the materials.

While the materials Ms. McDade sought may or may not ultimately be admissible at trial, the

only issue before the court was whether they were discoverable. Given the nature of Dr. Floros’

deposition, the trial court reasonably could have concluded that the materials were discoverable

under Civil Rule 26(B). As such, State Farm’s argument that the court erred by denying its

motion to quash lacks merit. Its first and second assignments of error are overruled.



1
  Although State Farm did not point to the following language in response to Ms. McDade’s
arguments in the lower court and this Court, its motion to quash provides that the motion was
“necessary because counsel for State Farm and Plaintiff’s counsel have been unable to negotiate
a satisfactory resolution.”
                                                6


                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED BY ISSUING AN ORDER WITHOUT
       SUPPORTING RATIONALE OR EXPLANATION.

       {¶12} In its fourth assignment of error, State Farm argues that the trial court committed

reversible error when it issued an “unreasoned” decision that “has no supporting rationale.”

State Farm asks this Court to remand the matter so that the trial court can issue a more detailed

decision. We decline to do so.

       {¶13} State Farm has not set forth any case law standing for the proposition that, in

denying a motion to quash, a trial court must issue an order that explains its rationale for having

done so. See Zaccardelli v. Zaccardelli, 9th Dist. Summit No. 26262, 2013-Ohio-1878, ¶ 47 (an

appellant bears the burden of demonstrating error on appeal through citation to relevant

authority). Civil Rule 45 does not contain any language that requires the court to issue a detailed

order. Moreover, this Court has recognized that, even where a party requests findings of fact and

conclusions of law following a decision, “findings of fact and conclusions of law are only

required for judgments and are unnecessary upon all other motions except for those filed

pursuant to [Civil Rule] 41(B)(2).” Bland v. Bland, 9th Dist. Summit No. 21228, 2003-Ohio-

828, ¶ 54, citing Civ.R. 52. We decline State Farm’s invitation to create an exception to that

general rule for orders that stem from motions to quash. State Farm’s fourth assignment of error

is overruled.

                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED BY FAILING TO CONDUCT A HEARING.

       {¶14} In its fifth assignment of error, State Farm argues that the trial court erred by not

conducting a hearing on its motion to quash. We disagree.
                                                 7


       {¶15} The Ohio Supreme Court has recognized that a trial court must hold an

evidentiary   hearing   when    deciding    whether    to   quash   a   subpoena     duces   tecum

under the Ohio Rules of Criminal Procedure. In re Subpoena Duces Tecum Served Upon Atty.

Potts, 100 Ohio St.3d 97, 2003-Ohio-5234, paragraph one of the syllabus, citing Crim.R. 17(C).

Thus far, however, its holding has not been extended to motions to quash subpoenas issued under

the Ohio Rules of Civil Procedure. See Bickel v. Cochran, 10th Dist. Franklin No. 14AP-439,

2014-Ohio-5862, ¶ 12-13 (refusing to extend the Supreme Court’s holding to motions to quash

brought pursuant to Juv.R. 17(D)(3) and Civ.R. 45(C)). In its motion to quash, State Farm did

not ask the trial court to hold a hearing. Moreover, even if a hearing might be warranted in

instances where privileged or protected matter is at issue, the trial court did not order State Farm

to divulge any privileged or protected matter. Compare Chiasson v. Doppco Dev., L.L.C., 8th

Dist. Cuyahoga No. 93112, 2009-Ohio-5013, ¶ 13-16 (court erred by not holding a hearing or

conducting an in camera review on civil motion to quash where materials at issue were alleged to

be work product). State Farm has not shown that the trial court erred by not holding a hearing on

its motion to quash. Consequently, its fifth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN DENYING THE MOTION TO QUASH
       BECAUSE THE MCDADE SUBPOENAS SEEK PRIVILEGED SETTLEMENT
       COMMUNICATIONS AND MATERIALS PREPARED IN ANTICIPATION
       OF LITIGATION.

       {¶16} In its third assignment of error, State Farm argues that the trial court erred by

denying its motion to quash because Ms. McDade’s subpoena sought privileged or otherwise

protected matter. See Civ.R. 45(C)(3)(b). Because State Farm has not shown that the court’s

ruling on this point is immediately appealable, we cannot address the merits of its argument. See

Lytle v. Mathew, 9th Dist. Summit No. 26932, 2014-Ohio-1606, ¶ 10-11.
                                                  8


          {¶17} This Court has jurisdiction to hear appeals only from final orders or judgments.

Article IV, Section 3(B)(2), Ohio Constitution; R.C. 2501.02.          In the absence of a final,

appealable order, this Court must dismiss the appeal for lack of subject matter jurisdiction. Lava

Landscaping, Inc. v. Rayco Mfg., Inc., 9th Dist. No. 2930-M, 2000 WL 109108, *1 (Jan. 26,

2000).

          {¶18} “Generally, trial court orders addressing discovery issues are merely interlocutory

and not immediately appealable.” Bowers v. Craven, 9th Dist. Summit No. 25717, 2012-Ohio-

332, ¶ 14. Revised Code Section 2505.02(B)(4) contains an exception to that general rule. The

statute provides that an order that grants or denies a provisional remedy is final and appealable so

long as

          (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[; and]

          (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)(a)-(b). It is the appellant’s burden to demonstrate that the interlocutory

order being appealed satisfies all of the requirements set forth in Section 2505.02(B)(4). See

Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, ¶ 8 (the burden of establishing the

existence of a final, appealable order under R.C. 2505.02(B)(4) “falls on the party who knocks

on the courthouse door asking for interlocutory relief”).

          {¶19} While the trial court here denied State Farm’s motion to quash, its order does not

require State Farm to divulge any privileged or otherwise protected materials.           The order

provides that, “[a]lthough the Court will not quash the subpoenas at issue, the parties are not

required to disclose privileged or otherwise protected materials, and shall support any such
                                                  9


claims in accordance with the requirements of [Civil Rule] 45(D)(4).” Thus, the court’s order

does not actually require the disclosure of privileged materials, and State Farm has not shown

that the order satisfies the provisions of R.C. 2505.02(B)(4)(a).          See also Smith at ¶ 8;

Youngstown State Univ. v. Youngstown State Univ. Assn. of Classified Emps., 7th Dist.

Mahoning No. 13 MA 104, 2013-Ohio-5862, ¶ 33 (“[W]here the order merely foreshadows

future issues that may or may not arise and is not a blanket denial of protection as to a topic, the

order is not final.”). This Court lacks jurisdiction to consider its third assignment of error.

                                                 III.

       {¶20} State Farm’s first, second, fourth, and fifth assignments of error are overruled.

This Court lacks jurisdiction to consider its third assignment of error. To the extent State Farm

has challenged the court’s order on the basis of privilege, the appeal is dismissed. Thus, the

judgment of the Summit County Court of Common Pleas is affirmed in part and the appeal is

dismissed in part.

                                                                          Judgment affirmed in part,
                                                                            appeal dismissed in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                10


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



WHITMORE, J.
MOORE, J.
CONCUR.


APPEARANCES:

GREGORY H. COLLINS, Attorney at Law, for Appellant.

KURT D. ANDERSON, Attorney at Law, for Appellant.

CHRISTOPHER J. VAN BLARGAN, JOHN J. REAGAN, and NOMIKI TSARNAS, Attorneys
at Law, for Appellee.

G. MICHAEL CURTIN, Attorney at Law, for Defendant.
