[Cite as Ohio Dept. of Transp. v. Bluescope Bldgs N. Am., Inc., 2016-Ohio-576.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                              JUDGES:
STATE OF OHIO, DEPARTMENT OF                          :       Hon. Sheila G. Farmer, P.J.
TRANSPORTATION                                        :       Hon. W. Scott Gwin, J.
                                                      :       Hon. John W. Wise, J.
                        Plaintiff-Appellant           :
                                                      :
-vs-                                                  :       Case No. 2015 AP 06 0027
                                                      :
BLUESCOPE BUILDINGS NORTH                             :
AMERICA, INC. FDBA BUTLER                             :       OPINION
MANUFACTURING CO.

                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                  Civil appeal from the Tuscarawas County
                                                          Court of Common Pleas, Case No. 2014
                                                          CT 05 0320

JUDGMENT:                                                 Dismissed

DATE OF JUDGMENT ENTRY:                                   February 17, 2016

APPEARANCES:

For Plaintiff-Appellant                                   For Defendant-Appellee

MICHAEL DEWINE                                            JOHN J. KULEWICZ
Ohio Attorney General                                     Vorys, Sater, Seymour & Pease, LLP
WILLIAM C. BECKER                                         52 East Gay Street
CRAIG BARCLAY                                             Box 1008
RICHARD J. SILK, JR.                                      Columbus, OH 43216
Assistant Attorneys General
150 East Gay Street                                       DAVID K. SCHAFFNER
Columbus, OH 43215                                        Schaffner Law Offices
                                                          132 Fair Avenue N.W.
                                                          New Philadelphia, OH 44663
[Cite as Ohio Dept. of Transp. v. Bluescope Bldgs N. Am., Inc., 2016-Ohio-576.]


Gwin, J.

         {¶1}      Appellant appeals the May 15, 2015 judgment entry of the Tuscarawas

County Court of Common Pleas granting appellee’s motion to compel and ordering

appellant to: supplement its answers and responses to the first set of interrogatories and

request for production of documents; and submit a privilege log as to any materials

appellant claims are privileged and not relevant to appellant’s claims.

                                           Facts & Procedural History

         {¶2} In a previous action, appellant, the State of Ohio, Department of

Transportation (“ODOT”) filed a complaint against appellee Bluescope Buildings North

America, Inc. f/d/b/a Butler Manufacturing Company (“Butler”) for breach of express and

implied product liability warranties and negligence.                 Prior to trial, ODOT dismissed,

without prejudice, its express warranty and negligence claims. The jury found in favor of

ODOT on its remaining implied warranty claim and awarded ODOT damages of $2.14

million dollars.

         {¶3} Subsequently, ODOT filed the instant case on May 23, 2014, a complaint

against Butler for spoliation of evidence, fraudulent inducement, and negligent

misrepresentation with a request for punitive damages. ODOT alleges Butler altered the

express warranty issued to ODOT in the previous litigation. Specifically, that Butler

removed language in the warranty by whiting out the phrase “no limits of liability” and that

Butler directed its expert witness to materially change his opinion.

         {¶4} On March 2, 2015, Butler filed a motion to compel discovery, seeking an

order from the trial court compelling ODOT to provide full responses to Butler’s first set of

interrogatories and request for production of documents. ODOT filed a memorandum in
Tuscarawas County, Case No. 2015 AP 0027                                                 3


opposition to the motion to compel, arguing the motion should be denied based upon the

attorney-client privilege and the work-product privilege.

        {¶5} On May 15, 2015, the trial court issued a judgment entry finding ODOT’s

answers and responses to Butler’s first set of interrogatories legally deficient and not

protected by attorney-client or work-product privilege. The trial court granted the motion

to compel and ordered ODOT to: supplement its answers and responses to Butler’s first

set of interrogatories and request for production of documents in accordance with the trial

court’s findings, accompanied by a privilege log as to any materials that are privileged

and not relevant to the claims in this action.

        {¶6} In August of 2015, ODOT filed a motion to amend the complaint to delete

the allegation in the complaint that ODOT dismissed its express warranty claim in the

previous case based upon the altered language in the warranty. ODOT also filed a motion

to vacate the trial court’s May 15th judgment entry based upon the amendment of the

complaint.   The trial court granted ODOT’s motion to amend complaint, but denied

ODOT’s motion to vacate the May 15th judgment entry.

        {¶7} ODOT appeals the trial court’s May 15, 2015 judgment entry and assigns

the following as error:

        {¶8} “I. THE TRIAL COURT INCORRECTLY DETERMINED THAT APPELLANT

WAIVED THE ATTORNEY-CLIENT PRIVILEGE.

        {¶9} “II.   THE    TRIAL     COURT       INCORRECTLY      DETERMINED        THAT

APPELLANT WAIVED THE WORK-PRODUCT PRIVILEGE.
Tuscarawas County, Case No. 2015 AP 0027                                                 4


        {¶10} “III. THE TRIAL COURT ERRED IN FINDING THAT THE STATE WAIVED

THE ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT PRIVILEGES BY

FAILING TO PROVIDE A PRIVILEGE LOG.”

                                     Final Appealable Order

        {¶11} Prior to addressing the merits of ODOT’s assignments of error, we must first

determine whether the order under review is final and appealable.

        {¶12} The Ohio Constitution grants courts of appeals jurisdiction “to review and

affirm, modify, or reverse judgments or final orders.” Article IV, Section 3(B)(2).

        {¶13} A proceeding for “discovery of privileged matter” is a “provisional remedy”

within the meaning of R.C. 2505.02(A)(3). Smith v. Chen, 142 Ohio St.3d 411, 2015-

Ohio-1480, 31 N.E.3d 633. An order granting or denying a provisional remedy is final

and appealable only if it has the effect of “determining the action with respect to the

provisional remedy and preventing a judgment in the action in favor of the appealing party

with respect to the provisional remedy” and “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.” Id.; R.C. 2505.02(B)(4). The

burden “falls on the party who knocks on the courthouse doors asking for interlocutory

relief.” Id.

        {¶14} As specifically noted by the Ohio Supreme Court, “an order must meet the

requirements in both subsections of the provisional-remedy section of the definition of

final, appealable order in order to maintain an appeal.” Id. If the party seeking to appeal

fails to establish why an immediate appeal is necessary, the court must presume an

appeal in the ordinary course would be meaningful and effective. Id. However, “an order
Tuscarawas County, Case No. 2015 AP 0027                                                  5

compelling disclosure of privileged material that would truly render a post judgment

appeal meaningless or ineffective may still be considered on an immediate appeal.” Id.

       {¶15} In this case, appellant argues there is a final appealable order under R.C.

2505.02(A)(3) and (B)(4)(b) because it requires the discovery of privileged matter, and

thereby grants a provisional remedy for which there would be no meaningful effective

remedy on subsequent appeal. Appellant contends an immediate appeal is necessary

because the trial court’s judgment entry goes well-beyond the production of documents

and response to interrogatories and argues the discovery efforts are all about taking the

depositions of the trial team in the previous litigation.    Appellant further argues an

immediate appeal is necessary because the trial court’s entry determines waiver of

privilege as to the entire case, so appellant is forced to provide all attorney-client

communications and work-product in writing and orally, with no meaningful remedy after

final judgment. We disagree with appellant.

       {¶16} Despite appellant’s contention, the trial court’s judgment entry does not go

beyond the production of documents and responses to interrogatories. The trial court

ruled only on a motion to compel regarding appellee’s first set of interrogatories and

request for production of documents. There is no determination of waiver of privilege as

to the entire case and there is nothing in the judgment entry requiring appellant to provide

all attorney-client communications and work-product in writing and orally. Rather, the trial

court ordered appellant to supplement its responses to the interrogatories and submit a

privilege log of documents, communications, or information it claims are privileged.

Further, the trial court did not actually order the release of the documents. Rather, the

trial court ordered appellant to submit a privilege log with a description of the nature of
Tuscarawas County, Case No. 2015 AP 0027                                               6


the documents, communications, or things not produced to the trial court for review. The

trial court can then hold an in-camera inspection with regards to the documents or

communications at issue.

      {¶17} With regards to appellant’s argument as to depositions, they are not at issue

in this motion to compel, as the motion deals only with responses to interrogatories and

production of documents. The trial court has not been presented with or ruled on the

testimonial issue. Further, the record is not sufficiently developed to determine whether

any deposition would result in the disclosure of privileged materials. See Autumn Health

Care of Zanesville, LLC v. DeWine, 10th Dist. Franklin No. 14AP-593, 2015-Ohio-2655.

      {¶18} Based on the foregoing, we find appellant failed to satisfy the requirement

in R.C. 2505.02(B)(4)(b) as to why an immediate appeal is necessary in this case and we

must presume an appeal in the ordinary course would be meaningful and effective.

Accordingly, we are without jurisdiction to address the assignments of error and,

consequently, the above-captioned appeal is dismissed.

By Gwin, J.,

Farmer, P.J., and

Wise, J., concur
