      [Cite as Hines v. Firelands Regional Med. Ctr., 2019-Ohio-3927.]




                          IN THE COURT OF APPEALS OF OHIO
                              SIXTH APPELLATE DISTRICT
                                    ERIE COUNTY


Elaine Hines, Executrix of the Estate                   Court of Appeals No. E-19-007
of Peter Porter, Deceased
                                                        Trial Court No. 2016 CV 0702
      Appellee

v.

Firelands Regional Medical Center, et al.               DECISION AND JUDGMENT

      Appellants                                        Decided: September 27, 2019

                                               *****

      Brenda M. Johnson, Jonathan D. Mester, and Jeffrey M. Heller, for
      appellees.

      Michael P. Murphy and Taylor C. Knight, for appellants.

                                               *****

      ZMUDA, J.

      {¶ 1} This is an appeal of a post-trial decision by the Erie County Court of

Common Pleas, ordering production of unredacted documents in proceedings for

prejudgment interest. Finding no error, we affirm.
                               I. Background and Procedure

         {¶ 2} The narrow issue on appeal concerns a discovery dispute in post-verdict

proceedings for prejudgment interest. The underlying action, a medical negligence and

wrongful death action, ended in a jury verdict in favor of appellee, Elaine Hines,

executrix of the estate of Peter Porter, and against appellants, Firelands Regional Medical

Center and Firelands Regional Health System. The jury awarded appellee damages in the

amount of $300,000, and that verdict was separately appealed.1

         {¶ 3} On August 22, 2018, appellant filed a motion seeking prejudgment interest,

pursuant to R.C. 1343.03(C), and on September 18, 2018, we remanded the matter in the

first appeal for determination of that motion. The parties participated in discovery,

pertinent to the pending motion. A dispute arose, therein, resulting in appellee filing a

motion to compel and appellants filing a motion for protective order.

         {¶ 4} At issue, in the discovery dispute, was production of appellants’ entire

attorney file and claims file and deposition of appellants’ trial counsel and the client

representative. Appellants objected to producing information protected by attorney-client

privilege in prejudgment interest proceedings, arguing some of the information requested

was privileged and not discoverable, or the information would reveal appellants’

litigation strategy. Appellants served a redacted copy of the claims file on appellee,

containing over 900 pages of documents, with their motion for protective order.




1
    See Hines v. Firelands Regional Med. Ctr., 6th Dist. Erie No. E-18-051.
2.
       {¶ 5} On November 28, 2018, the trial court sustained appellants’ objection to

producing their attorney file and to deposition of trial counsel. However, the trial court

ordered appellants to make their client representative, Amy Bohn-Green, available for

deposition. As to the claims file, the trial court ordered appellants to produce all non-

privileged documents and to submit the disputed documents, without redactions, for an in

camera inspection, accompanied by a privilege log “identifying which documents it

claims directly involve the [appellants’] theory of defense[.]”2 (Emphasis sic.).

       {¶ 6} After in camera review, the trial court entered judgment regarding

appellants’ objections based on privilege. The trial court sustained all objections, with

the exception of two pages within one document, a letter from trial counsel to Bohn-

Green regarding initial litigation, identified in the record as claims file Nos. 00015 and

00016. Of all the disputed documents, the trial court ordered only these two pages

produced in unredacted form to appellee, finding these pages did not directly involve trial

counsel’s theory of defense in the underlying suit. From this decision, appellants bring

the present appeal, asserting the following assignment of error:




2
 In a subsequent entry, on December 3, 2018, the trial court determined it needed a
complete, unredacted copy of appellants’ entire claims file to determine whether the
disputed portions were discoverable pursuant to Moskovitz. Appellants then submitted the
entire, unredacted claims file to the trial court.

3.
                  The Trial Court erred in ruling Appellants are required to disclose an

           unredacted copy of the Initial Litigation Plan prepared by defense counsel

           as said document directly involves defense counsel’s theory of defense.3

                                            II. Analysis

           {¶ 7} Generally, we review a ruling on a discovery dispute for abuse of discretion.

    Al-Fayez v. Baycliffs Homeowners Assoc., Inc., 123 N.E.3d 351, 2018-Ohio-4542, ¶ 15

    (6th Dist.), citing Randall v. Cantwell Mach. Co., 10th Dist. Franklin No. 12AP-786,

    2013-Ohio-2744, ¶ 11 (additional citation omitted.). With respect to a claim of privilege,

    however, the proper standard of review turns on whether the claim “presents a question

    of law or a question of fact.” Al-Fayez at ¶ 15, citing Randall at ¶ 9.

           {¶ 8} If the claim of privilege presents factual questions, “such as whether an

    attorney-client relationship existed, an abuse of discretion standard applies.” Id. at ¶ 15,

    quoting Randall at ¶ 9. If the privilege presents a legal question, however, requiring

    interpretation and application of the law our review is de novo. Al-Fayez at ¶ 15, quoting

    Randall at ¶ 9; see also Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-

    6275, 943 N.E.2d 514, ¶13.

           {¶ 9} In this case, the parties dispute the parameters in applying the ruling in

    Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 635 N.E.2d 331 (1994), and in



3
     Appellants did not submit copies of the disputed discovery with their appeal. On August
    21, 2019, we noted the lack of documents in the present appeal, and ordered the clerk to
    file a supplemental record, containing all of the documents submitted for in camera
    review as referenced by the trial court in its decision. On August 28, 2019, the clerk filed
    the supplemental record, under seal, for our review.
    4.
particular, the scope of the limitations to discovery in an R.C. 1343.03(C) proceeding for

prejudgment interest. Accordingly, as the issue is one of law, and not fact, we review the

trial court’s ruling de novo. Al-Fayez at ¶ 15

       {¶ 10} In Moskovitz, the Ohio Supreme Court considered the issue of privilege,

applicable to prejudgment interest proceedings, and held:

              In an R.C. 1343.03(C) proceeding for prejudgment interest, neither

       the attorney-client privilege nor the so-called work product exception

       precludes discovery of the contents of an insurer's claims file. The only

       privileged matters contained in the file are those that go directly to the

       theory of defense of the underlying case in which the decision or verdict

       has been rendered. Moskovitz at paragraph three of the syllabus.

       {¶ 11} The trial court reviewed the disputed documents, in camera, and sustained

all objections with the exception of two pages of a letter authored by trial counsel to

appellants’ representative, and characterized as the “initial litigation plan.” These two

pages, appellants argue, pertain to the theory of their defense in the underlying case, and

therefore, the information is specifically excepted from discoverable claims file

information. Appellants also argue that the 2007 amendments to the privilege statute,

R.C. 2317.02, was intended to limit the holding in Moskovitz and protect documents from

discovery based on attorney-client privilege. Finally, appellants argue that Moskovitz did

not eliminate the “good cause” requirement, and they assert that appellee failed to

demonstrate good cause.



5.
       {¶ 12} Appellee argues in favor of discoverability, asserting the redacted portions

of the disputed document do not pertain to the theory of the defense, relying entirely on

the trial court’s determination. Additionally, appellee argues that the amendments to

R.C. 2317.02 have nothing to do with the claims file, at issue in this case, and that they

demonstrated the requisite good cause to overcome attorney-client privilege.

       {¶ 13} Addressing these arguments in reverse, whether appellee demonstrated

good cause is not the determinative issue. Good cause, pursuant to Moskovitz, is as

follows:

              In a prejudgment interest proceeding, the good-cause requirement of

       Civ.R. 26(B)(3) is that which is appropriate to effectuate the General

       Assembly's purposes of enacting R.C. 1343.03(C)—to encourage and bring

       about settlements.

              In our continuing efforts to provide guidance to the bench and bar on

       difficult and pressing issues, we hold that in an R.C. 1343.03(C) proceeding

       for prejudgment interest, neither the attorney-client privilege nor the so-

       called work product exception precludes discovery of an insurer’s claims

       file. Moskovitz at 662.

The amendment to the statute, moreover, has little bearing on discovery of a claims file in

prejudgment interest proceedings under R.C. 1343.03(C), as noted by the Eleventh

District Court of Appeals in Cobb v. Shipman, 11th Dist. Trumbull No. 2011-T-0049,

2012-Ohio-1676, ¶ 64-66, citing Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors

Corp., 127 Ohio St.3d 161, 2010–Ohio–4469, 937 N.E.2d 533, ¶ 30.

6.
              In Squire, the supreme court reaffirmed Moskovitz, and held that the

       lack of good faith exception to attorney client privilege was still alive and

       well. “Because the attorney-client privilege does not apply when the client

       seeks to abuse the attorney-client relationship, the court in Moskovitz held

       that ‘[d]ocuments and other things showing the lack of a good faith effort to

       settle by a party of the attorneys acting on his or her behalf are wholly

       unworthy of the protections by any claimed privilege.’”

Cobb at ¶ 64, quoting Squire at ¶ 30. The only issue truly before the court,

therefore, is whether the disputed discovery pertains to the theory of defense in the

underlying case.4

       {¶ 14} While there is little authority regarding the exact scope of discovery in

prejudgment interest proceedings, courts have considered what does, and does not, “go

directly to the theory of defense of the underlying case.” In Radovanic v. Cossler, 140

Ohio App.3d 208, 216-217, 746 N.E.2d 1184 (8th Dist.2000), the Eighth District Court of

Appeals considered this scope and found:

              In the case sub judice, the trial court ordered the entire claims file

       disclosed after its in camera inspection and redaction of certain portions of

       the file. There is an array of documents in the packet produced for in

       camera inspection: a portion of the documentation includes a sketch of Mrs.




4
  The objections sustained by the trial court, related to other documents, have not been
raised in this appeal and are not before the court.
7.
      Radovanic's medical history; evaluations by physicians; analysis of the

      credibility of witnesses; comments regarding the likelihood of success on

      the merits; and there are comments on the interaction between the

      defendants. This type of documentation does not go directly to the defense

      of the case; rather, the documents are the type of documents needed to

      indicate whether or not prejudgment interest is warranted.

      {¶ 15} In Egleston v. Fell, 6th Dist. Lucas No. L-95-127, 1996 WL 50161 (Feb. 9,

1996), we were asked to consider whether an order to disclose matters within a claims

file in prejudgment interest proceedings was error. Based on our conclusion that the trial

court erred in granting the motion for prejudgment interest, however, we found no

prejudice regarding the discovery order, and determined that any error was harmless.

             [W]e need not determine whether the four interoffice

      communications amount to privileged matters under Moskovitz because

      Toledo Hospital suffered no prejudice. In fact, we find that such

      communications are evidence in support of the Toledo Hospital's arguments

      opposing the motion for prejudgment interest. Such communications reveal

      that Toledo Hospital's position has consistently been that the Egleston case

      had little merit, that it was weak and that liability exposure was slim.

      Therefore, we find that error, if any, committed by the trial court in

      ordering discovery of these communications was harmless.

Elgeston at *5.



8.
       {¶ 16} R.C. 1343.03(C) provides for an award of prejudgment interest if a court

determines, after the verdict, “that the party required to pay the money failed to make a

good faith effort to settle the case and that the party to whom the money is to be paid did

not fail to make a good faith effort to settle the case[.]” Relevant discovery, therefore,

would relate to settlement efforts, or the lack of good faith settlement efforts based on the

circumstances, as limited by Moskovitz.

       {¶ 17} The disputed discovery, in this case, consists of two pages of a letter sent

by trial counsel to appellants’ representative, and includes counsel’s initial assessment of

liability, as well as an initial exposure analysis, indicating counsel’s opinion on the

potential highest possible verdict, considering the limited information collected to date.

As indicated within this document, the parties were in the very beginning stages of

litigation at the time, and had exchanged no discovery and taken no depositions.

Appellants had identified experts, but had not yet submitted materials to these experts for

an expert review and opinion. The letter pertains to early assessment and exposure

considerations regarding appellee’s claims, newly filed, with no information pertinent to

a theory of defense for trial of appellee’s claims. As such, the documents are relevant to

determining whether or not prejudgment interest is warranted, and do not go directly to

the appellants’ defense of the case. See Radovanic, 140 Ohio App.3d at 216-217, 746

N.E.2d 1184.

       {¶ 18} Upon review of the letter, we do not find that the redacted information

contained within documents 00015 and 00016 related to the theory of defense in the



9.
underlying action. Accordingly, the trial court did not err in ordering appellants to

produce these documents, and appellants’ sole assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 19} Upon due consideration, we affirm the judgment of the Erie County Court

of Common Pleas. Appellants are assessed the costs pursuant to App.R. 24.



                                                                       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Christine E. Mayle, P.J.
                                                _______________________________
Gene A. Zmuda, J.                                           JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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