[Cite as Griffith v. Aultman Hosp., 2017-Ohio-8293.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

GENE'A GRIFFITH,                                          JUDGES:
EXECUTRIX FOR THE ESTATE OF                               Hon. W. Scott Gwin, P.J.
HOWARD E. GRIFFITH, DECEASED                              Hon. William B. Hoffman, J.
                                                          Hon. Earle E. Wise, Jr., J.
        Plaintiff-Appellant
                                                          Case No. 2017CA0004
-vs-

AULTMAN HOSPITAL                                          OPINION

        Defendant-Appellee




CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas, Case No. 2013CV00487


JUDGMENT:                                              Reversed and Remanded

DATE OF JUDGMENT ENTRY:                                October 23, 2017

APPEARANCES:

For Appellant                                          For Appellee

LEE E. PLAKAS                                          RICHARD S. MILLIGAN
DAVID L. DINGWELL                                      Milligan Pusateri Co., LPA
MEGAN J. FRANTZ OLDHAM                                 4684 Douglas Circle NW - P.O. Box 35459
COLLIN S. WISE                                         Canton, Ohio 44735-5459
Tzangas/Plakas/Mannos/LTD
220 Market Avenue South
Eighth Floor
Canton, Ohio 44702
Stark County, Case No. 2017CA0004                                                      2

Hoffman, J.



      {¶1}    Plaintiff-appellant Gene’a Griffith, Executrix for the Estate of Howard E.

Griffith, Deceased, appeals the December 20, 2016 Judgment Entry entered by the Stark

County Court of Common Pleas, which granted summary judgment in favor of defendant-

appellee Aultman Hospital, and denied her motion to compel.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Howard E. Griffith (“Decedent”) underwent surgery at Aultman Hospital on

May 2, 2012. Two days later, after being transferred from intensive care to a step-down

unit, Decedent developed intermittent atrial fibrillation and was placed on continuous

cardiac monitoring.

      {¶3}    Around 4 a.m. on May 6, 2012, a nurse in the step-down unit assessed

Decedent and found he was doing well. Approximately 45 minutes later, an x-ray

technician found Decedent in his bed with his gown ripped off, the cardiac monitor no

longer attached to his body, his central line lying on the floor, and his chest tube

disconnected. Decedent was unresponsive and did not have a heartbeat. Medical

personnel resuscitated him and moved him to the intensive care unit. However, Decedent

had suffered severe brain damage and, after he made no neurological improvement, his

family decided to remove him from life support on May 7, 2012. Howard died

approximately nine hours later on May 8, 2012.

      {¶4}    Griffith requested a copy of Decedent's complete medical record on July 24,

2012. Aultman provided some documents in response to this request. After Griffith sent

a second written request on October 17, 2012, Aultman produced the medical record for
Stark County, Case No. 2017CA0004                                                         3


the period May 2, through 8, 2012, which was stored in the medical records department.

On December 12, 2012, Griffith's representative made an in-person request and was

permitted to review what was represented to her as Decedent’s complete medical record.

Griffith made an additional written request for Decedent’s medical record. Aultman again

produced Decedent’s medical record which was maintained in the medical records

department.

      {¶5}    Griffith filed the instant action on February 12, 2013, pursuant to R.C.

3701.74 and 2317.48, to compel Aultman to produce Decedent's complete medical

record.   In her complaint, Griffith alleged, in part, Aultman had failed to produce any

monitoring strips or nursing records from Decedent’s hospital stay. On March 8, 2013,

Aultman filed an Answer, asserting it had provided Griffith with Decedent's complete

medical record on February 28, 2013.

      {¶6}    Griffith served Aultman with requests for admissions and interrogatories. In

response, Aultman admitted, prior to filing the action, it had failed to produce Decedent's

“entire and complete medical record in response” to each of Griffith's medical record

requests. In the answer to interrogatories, Jennifer Reagan–Nichols, the director of

medical records and transcription at Aultman, verified Aultman had produced Decedent’s

entire medical record after Griffith filed the action. Contemporaneously with the answer

to interrogatories, Aultman produced hard copies of cardiac-monitoring data from May 6,

2012, “as responsive documents from the visit that are not part of the medical record.”

      {¶7}    Griffith deposed Reagan–Nichols on March 11, 2013. During the deposition,

Reagan–Nichols testified Aultman had produced Decedent's cardiac-rhythm strips from

May 6, 2012, covering 4:00 a.m. to 4:51 a.m., in response to the request for documents.
Stark County, Case No. 2017CA0004                                                       4


Reagan–Nichols further testified, while monitoring strips for a patient which are received

by her department would be made part of the medical record, she explained Decedent's

printouts were not part of his medical record because the nursing staff had not provided

them to the medical records department. She did not know who directed the nurses not

to print Decedent's data.

        {¶8}   On March 14, 2013, Aultman filed a motion for summary judgment

supported by the sworn interrogatory answers of Reagan–Nichols, in which she indicated

a complete copy of Decedent's medical chart had been provided to Griffith. Griffith filed

a memorandum in opposition, and a Civ.R. 56(F) motion to conduct additional discovery.

        {¶9}   After Reagan–Nichols submitted an errata sheet to correct some of her

deposition testimony, the trial court permitted Griffith to take a second deposition of

Reagan–Nichols. During her second deposition, Reagan–Nichols indicated Bates

Numbers 655 to 707 were not considered part of Decedent's medical record because

they were never provided to the medical records department. Reagan–Nichols testified

Bates Numbers 655 to 707 had been printed at the direction of Aultman's risk

management department and stored by that department. She explained, if a record or

document is not given to the medical records department, that record or document is not

made part of the patient's medical record even if another part of the hospital may have a

copy.    Reagan–Nichols further testified she did not know if the risk management

department had any other records for Decedent which had not been provided to Griffith.

        {¶10} The parties filed supplemental briefs. A week before filing its supplemental

brief, Aultman provided Griffith with Bates Number 708, which evidenced a cardiologist
Stark County, Case No. 2017CA0004                                                         5


had confirmed Decedent’s ECG was abnormal and Decedent needed to be on electronic

monitoring equipment.

       {¶11} On June 28, 2013, the trial court conducted a hearing on Aultman’s motion

for summary judgment. Via Judgment Entry filed on the same day, the trial court granted

summary judgment in favor of Aultman, finding Aultman had produced Decedent's

medical record as defined by R.C. 3701.74(A)(8).

       {¶12} On appeal, this Court affirmed the trial court's judgment, holding “the

medical record consists of what was maintained by the medical records department and

information that the provider decides not to maintain is not part of the medical record.”

Griffith v. Aultman Hosp., 5th Dist. Stark No.2013CA00142, 2014–Ohio–1218, ¶ 22. We

further noted, “Documents kept by any other department, including risk management, ‘do

not meet the definition of a medical record because they were not “maintained” by the

medical records department’. Id. at ¶ 30.

       {¶13} The Ohio Supreme Court accepted jurisdiction on appeal by Griffith to

consider the definition of “medical record” as the term is used in R.C. 3701.74.1 Griffith

v. Aultman Hosp., 146 Ohio St.3d 196, 2016-Ohio-1138, 54 N.E.3d 1196. The Griffith

Court disagreed with this Court’s reasoning, and held “the physical location of patient data

is not relevant to the determination whether that data qualifies as a medical record under

R.C. 3701.74(A)(8). Rather, the definition focuses on whether a healthcare provider made

a decision to keep data that was generated in the process of the patient's healthcare

treatment and pertains to the patient's medical history, diagnosis, prognosis, or medical




1
 The underlying medical negligence/wrongful death claim against Aultman was settled
prior to the Ohio Supreme Court’s rendering its decision in Griffith, supra.
Stark County, Case No. 2017CA0004                                                            6

condition.” Id. at ¶ 5. The Supreme Court reversed and remanded the matter to the trial

court.



         {¶14} Upon remand, the trial court permitted the parties to engage in “limited

discovery”, and scheduled supplemental briefing and oral arguments on Aultman’s motion

for summary judgment.         Griffith propounded her third set of written discovery upon

Aultman, which included an interrogatory inquiring whether “[w]ithin the definition of

“medical record” as clarified by The Supreme Court of Ohio in Griffith v. Aultman Hosp.,

Slip Opinion No. 2016-Ohio-1138 * * *any page or part of any medical record, office

record, or hospital chart pertaining to your care and treatment of Howard Griffith from and

including May 2, 2012 to May 8, 2012 has been destroyed, modified, replaced, damaged,

or altered in any respect subsequent to the initial preparation, and whether a copy of the

complete medical record has been provided to Plaintiff or their counsel”.               Aultman

objected, noting the interrogatory was unclear, and added the “interrogatory seeks

information not relevant to any issue in the case and not reasonably calculated to lead to

the discovery of admissible evidence. Without waiving objection, see the medical record

which is complete and has been provided. See Aultman’s answer to interrogatory no. 2

from plaintiff’s first set of interrogatories in this case.”



         {¶15} Interrogatory No. 2 from Griffith’s first set of interrogatories read:



                State whether, to Defendant’s knowledge, any page or part of any medical

         record, office record, or hospital chart pertaining to your care and treatment of
Stark County, Case No. 2017CA0004                                                     7


      Howard Griffith from and including May 2, 2012 to May 8, 2012 has been

      destroyed, modified, replaced, damaged or altered in any respect subsequent to

      the initial preparation, and whether a copy of the complete medical record has

      been provided to Plaintiff or their counsel.



      {¶16} Aultman answered:



             Objection. Interrogatory consists of two parts. Without waiving the

      foregoing objection:



             1. With the exception of routine processing, no part of the medical

      record maintained by Aultman Hospital has been altered or destroyed.

             2. A complete copy of the chart is provided in response to the request

      for production of documents.



      {¶17} Griffith also deposed Cathy Rainieri from Aultman’s risk management

department. During the course of Rainieri’s deposition, counsel for Aultman instructed

the witness not to answer the following questions:



             1. What medical records is Aultman’s risk management department

      in possession of which have not been provided to Gene’a Griffith or her

      counsel?
Stark County, Case No. 2017CA0004                                                        8


              2. Is any department within Aultman Hospital in possession of any

      medical records which have not been provided to Ms. Griffith or her

      counsel?

              3. Without telling me what was said, was there any communication

      with counsel regarding Mr. Griffith’s medical records in May, 2012?

      Deposition of Cathy Rainieri at 18, 19, and 21.



      {¶18} Following Rainieri’s deposition, Griffith filed a motion to compel, seeking an

order requiring Rainieri to answer the questions posed during her deposition, and to

substantively respond to her written discovery requests.

       {¶19} In its supplemental brief in support of its motion for summary judgment,

Aultman’s counsel asserted Aultman had produced the complete record and had “no

other medical records of Howard Griffith that have not been produced, whether those

records are maintained in the medical records department or elsewhere.” June 27, 2016

Supplemental Brief at 4.

       {¶20} The trial court conducted a hearing on Aultman’s motion for summary

judgment and Griffith’s motion to compel on August 12, 2016. Following the hearing,

Aultman filed the Affidavit of Cathy Rainieri, in which she averred any knowledge or

information she had regarding Decedent was privileged, either as attorney-client privilege,

or as work product.

       {¶21} Via Judgment Entry filed December 20, 2016, the trial court denied Griffith’s

motion to compel, finding:
Stark County, Case No. 2017CA0004                                                       9


              Upon review of the issues presented by the plaintiff’s motion to

       compel, the Court finds that the information has been provided to the

       plaintiff and/or is covered by recognized privilege. Further, the Court finds,

       under the particular facts of this case, that no exception to such privilege

       applies. Id. at 2.



       {¶22} In the same judgment entry, the trial court granted summary judgment in

favor of Aultman, finding:



              Upon review of such evidence and consideration of the arguments

       presented, the Court finds that the defendant has produced the entire

       “medical record” of Howard E. Griffith as defined by R.C. 3701.74(A)(8) and

       by the Supreme Court in Griffith v. Aultman Hosp., 146 Ohio St.3d 196,

       2016-Ohio-1138. Id. at 3.



       {¶23} It is from this judgment entry Griffith appeals, raising the following

assignments of error:



              1. THE TRIAL COURT ERRED IN GRANTING SUMMARY

       JUDGMENT WHEN THERE WAS A GENUINE ISSUE OF MATERIAL

       FACT AS TO WHETHER AULTMAN HAS PRODUCED MR. GRIFFITH’S

       ENTIRE MEDICAL RECORD FROM HIS MAY 2, 2012 ADMISSION

       BECAUSE 1) NO CREDIBLE SOURCE ATTESTED OR VERIFIED THAT
Stark County, Case No. 2017CA0004                                                     10


      APPELLANT WAS PROVIDED ALL OF MR. GRIFFITH’S MEDICAL

      RECORDS, 2) THE EVIDENCE IS THAT ADDITIONAL MEDICAL

      RECORDS EXIST WHICH HAVE NOT BEEN PRODUCED, AND 3)

      MEDICAL RECORDS HAVE APPEARED ON TWO OCCASIONS AFTER

      APPELLEE FILED FOR SUMMARY JUDGMENT WITHOUT ANY

      EXPLANATION AS TO WHERE THEY CAME FROM WHY THEY WERE

      JUST BEING PRODUCED, AND WHAT OTHER RECORDS WERE WITH

      THEM.

             2. THE TRIAL COURT ERRED AS A MATTER OF LAW DENYING

      PLAINTIFF’S     MOTION      TO   COMPEL       BECAUSE      THE    SOUGHT

      INFORMATION WAS NEITHER “PROVIDED TO THE PLAINTIFF” NOR

      “COVERED BY A RECOGNIZED PRIVILEGE.” ASSUMING ARGUENDO

      THAT WORK PRODUCT PRIVILEGE APPLIED, GRIFFITH HAS GOOD

      CAUSE FOR SUCH INFORMATION.



                                               I

      {¶24} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.

The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, this

Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co.

(1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

      {¶25} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
Stark County, Case No. 2017CA0004                                                           11


the moving party is entitled to judgment as a matter of law; and 3) it appears from the

evidence that reasonable minds can come to but one conclusion and viewing such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

       {¶26} It is well established the party seeking summary judgment bears the burden

of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett

(1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for granting

summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293, 662

N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that the nonmoving

party cannot prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate the absence

of a genuine issue of material fact on the essential element(s) of the nonmoving party's

claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by

making a conclusory assertion the nonmoving party has no evidence to prove its case.

Rather, the moving party must be able to specifically point to some evidence of the type

listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no

evidence to support the nonmoving party's claims. If the moving party fails to satisfy its

initial burden, the motion for summary judgment must be denied. However, if the moving

party has satisfied its initial burden, the nonmoving party then has a reciprocal burden

outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial

and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be

entered against the nonmoving party.” The record on summary judgment must be viewed
Stark County, Case No. 2017CA0004                                                        12

in the light most favorable to the opposing party. Williams v. First United Church of Christ

(1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

       {¶27} Griffith contends summary judgment was inappropriate because genuine

issues of material fact exist as to whether Aultman has produced Decedent’s entire

medical record. We agree.

       {¶28} Upon remand from the Ohio Supreme Court, the trial court permitted the

parties to engage in “limited discovery”. Griffith propounded her third set of written

discovery upon Aultman, which included the following interrogatory:



              INTERROGATORY NO. 2:



              Within the definition of “medical record” as clarified by The Supreme

       Court of Ohio in Griffith v. Aultman Hosp., Slip Opinion No. 2016-Ohio-1138,

       state whether, to Defendant’s knowledge any page or part of any medical

       record, office record, or hospital chart pertaining to your care and treatment

       of Howard Griffith from and including May 2, 2012 to May 8, 2012 has been

       destroyed, modified, replaced, damaged, or altered in any respect

       subsequent to the initial preparation, and whether a copy of the complete

       medical record has been provided to Plaintiff or their counsel.



       {¶29} Aultman objected, responding:
Stark County, Case No. 2017CA0004                                                         13


              * * * Interrogatory is unclear. In addition, this interrogatory seeks

       information not relevant to any issue in the case and not reasonably

       calculated to lead to the discovery of admissible evidence. Without waiving

       objection, see the medical record which is complete and has been provided.

       See Aultman’s answer to interrogatory no. 2 from plaintiff’s first set of

       interrogatories in this case.



       {¶30} Interrogatory No. 2 from Griffith’s first set of interrogatories and

Interrogatory No. 2 from Griffith’s third set of interrogatories are identical except for the

“Within the definition of ‘medical record’ as clarified by The Supreme Court of Ohio in

Griffith v. Aultman Hosp., Slip Opinion No. 2016-Ohio-1138” language. See, Statement

of the Facts and Case, supra. Aultman’s answer to Interrogatory No. 2 from the first set

of interrogatories reads, as follows:



              Objection.      Interrogatory consists of two parts.    Without waiving the

       foregoing objection:



              1. With the exception of routine processing, no part of the medical

       record maintained by Aultman Hospital has been altered or destroyed.

              2. A complete copy of the chart is provided in response to the request

       for production of documents.
Stark County, Case No. 2017CA0004                                                         14


       {¶31} In considering “whether [Aultman] met its burden on a motion for summary

judgment to show that there was no genuine issue of material fact that it produced

[Decedent's] entire medical record”, the Ohio Supreme Court found the record before it

was “insufficient” to make such determination “because the proceedings below focused

only on medical records kept in the hospital's medical-records department.” Griffith, supra

at para. 26 and 27. By relying upon its response to Interrogatory No. 2 from Griffith’s first

set of interrogatories in addressing Interrogatory No. 2 from Griffith’s third set of

interrogatories, we find Aultman has again failed to meet its burden to show there was no

genuine issue of material facts it produced Decedent’s entire medical record.

       {¶32} Aultman objected to Interrogatory No. 2 both times, but each time

proceeded to respond without directly answering the interrogatory.2 In its first objection,

Aultman claimed “with the exception of routine processing, no part of the medical record

had been altered or destroyed.3, 4 Aultman further claimed a copy of the complete “chart”

was provided.

       {¶33} We note Aultman’s production of the complete “chart”, does not necessarily

equate to the production of the entire medical record. Significantly, Aultman’s response

was based on its contention only records it kept in its medical records department




2 It seems procedurally awkward to object to the interrogatory, yet offer a response upon
which Aultman then relies to support its motion for summary judgment.
3 Aultman’s insertion of the qualifying condition “with the exception of routine processing”,

presumes whatever it processes routinely cannot be considered a medical record – a
presumption which is self-serving and better left for the trial court to decide, in camera.
4
  Aultman did not further state the medical record had not been “modified” or “replaced”
as requested in the interrogatory. While we are not sure there is a theoretical difference,
other than mere semantics, in those terms, arguably the response was incomplete.
Stark County, Case No. 2017CA0004                                                         15


qualified as discoverable medical records – a contention the Ohio Supreme Court

rejected.

       {¶34} Aultman’s objection to Interrogatory No. 2 in the third set following remand

from the Ohio Supreme Court, asserted the interrogatory was “unclear”. Again, Aultman

responded to the purportedly “unclear” interrogatory, claiming the complete medical

record had been provided, incorporating by reference its response to Interrogatory No. 2

in the first set of interrogatories. By doing so, we find its purported response suffers from

the same flaw the Ohio Supreme Court found wanting.

       {¶35} Despite representing it had provided Decedent’s entire medical record,

Aultman subsequently produced additional pages of Decedent’s medical record, to wit:

Bates 708 and the nursing notes of Nurse Ginelle Breyer.

       {¶36} Despite Aultman’s counsel repeated assertions all discoverable medical

records has been produced and provided, there is no Civ.R. 56 evidentiary material from

an Aultman representative directly and definitely so stating, following the Ohio Supreme

Court’s clarification of what medical records include.

       {¶37} Accordingly, we find the trial court erred in granting summary judgment in

favor of Aultman.

       {¶38} Griffith’s first assignment of error is sustained.

                                                 II

       {¶39} In her second assignment of error, Griffith asserts the trial court erred as a

matter of law in denying her motion to compel. We agree.

       {¶40} Because a trial court has broad discretion over discovery matters, a

reviewing court reviews these rulings only for an abuse of discretion. State ex rel. Duncan
Stark County, Case No. 2017CA0004                                                        16

v. Middlefield, 120 Ohio St.3d 313, 2008–Ohio–6200, 898 N.E.2d 952, ¶ 27. Accordingly,

this Court will not reverse a trial court's decision on a motion to compel absent an abuse

of discretion. State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469, 692

N.E.2d 198. However, where a trial court's order is based on a misconstruction of law, it

is not appropriate for a reviewing court to use an abuse-of-discretion standard.

Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership (1992), 78 Ohio App.3d 340, 346,

604 N.E.2d 808, 811–812. In determining pure questions of law, an appellate court may

properly substitute its judgment for that of the trial court, since an important function of

appellate courts is to resolve disputed propositions of law. Id.

       {¶41} In her motion to compel, Griffith asked the trial court to require Cathie

Rainieri to answer the questions posed to her at her deposition as well as natural follow-

up questions. Griffith also asked the trial court to order Aultman to substantively respond

to her third set of interrogatories and requests for production of documents.

       {¶42} At the commencement of Rainieri’s deposition, Aultman objected to her

being questioned “about any specific information about the Griffith matter” as “her only

knowledge was gained in the context that would be privileged, either as attorney-client

privilege or as work product.” Deposition of Cathie Rainieri at 4. The trial court conducted

a hearing on the motion to compel on August 12, 2016. Later, that afternoon, Aultman

supplemented the record with Rainieri’s affidavit. Therein, Ranieri averred she worked

“exclusively under the authority, direction, control and supervision of” Aultman’s legal

department; the risk management department “operates under the direction of Attorney

Mark N. Rose”, the senior vice president of legal affairs and system risk management at

the hospital”; the risk management department “is responsible for investigating incidents
Stark County, Case No. 2017CA0004                                                        17


where there is a prospect of litigation”; and “under the direction of counsel, [she]

undertook an investigation into the Griffith matter” and any “investigation or actions [she]

took * * * were done in connection with my work as a risk manager, at the direction of

counsel and in anticipation of and defense of litigation.” Affidavit of Cathy Rainieri at

paras. 1, 2, 3, and 5.

       {¶43} The trial court denied Griffith’s motion to compel, finding “the information

has been provided to the plaintiff and/or is covered by recognized privilege. Further, the

Court finds, under the particular facts of this case, that no exception to such privilege

applies.” December 20, 2016 Judgment Entry at 2.

       {¶44} The main purpose behind the attorney-client privilege is to promote “ ‘full

and frank communication between attorneys and their clients and thereby promote

broader public interests in the observance of law and the administration of justice.’ ”

Boone v. Vanliner Ins. Co. (2201), 91 Ohio St.3d 209, 210, 744 N.E.2d 154, fn. 2, quoting

Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584.

On the other hand “[t]he purpose of the work-product doctrine is ‘to prevent an attorney

from taking undue advantage of his adversary's industry or efforts.’ ” Id. quoting Civ.R.

26(A)(2). Although both the attorney-client privilege and the work-product doctrine might

often apply to the same material, the protections do not overlap completely. See, In re

Election of Nov. 6, 1990 for the Office of Atty. Gen. of Ohio (1991), 57 Ohio St.3d 614,

615, 567 N.E.2d 243.

       {¶45} Ohio Courts have long recognized the protection against discovery of

matters identified as “privileged” in Civ.R. 26(B)(1) is limited to those derived from a

specific constitutional or statutory provision. State ex rel. Grandview Hosp. & Med. Ctr. v.
Stark County, Case No. 2017CA0004                                                           18

Gorman, 51 Ohio St.3d 94, 95, 554 N.E.2d 1297 (1990), citing In re Story, 159 Ohio St.

144, 147, 111 N.E.2d 385 (1953). Although not technically a privilege in the strict sense,

the attorney work-product doctrine is frequently called a privilege in the popular sense.

See, e.g., United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141

(1975); Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d

161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 55.

       {¶46} 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.

“The burden of showing that testimony [or documents] sought to be excluded under the

doctrine of privileged attorney-client communications rests upon the party seeking to

exclude [them] * * *.” Waldmann v. Waldmann (1976), 48 Ohio St.2d 176, 178, 358 N.E.2d

521, citing In re Martin (1943), 141 Ohio St. 87, 103, 47 N.E.2d 388.

       {¶47} We find Aultman failed to meet its burden of establishing the attorney-client

privilege applied to all the documents and information sought by Griffith. Decedent’s

medical record existed prior to the filing of the instant action. The attorney-client privilege

cannot shield these documents and information from production merely because such

was gathered and turned over to the risk management department. The underlying nature

of this information was not transmuted once it was provided to the risk management

department. We reject Aultman’s summary claim any record gathered at the request of

its legal litigation department is always protected by the attorney-client privilege.

       {¶48} We further find the work product privilege does not extend to the information

sought during Rainieri’s deposition.
Stark County, Case No. 2017CA0004                                                           19


       {¶49} Civ. R. 26(B) provides, in pertinent part:



              (3) Trial Preparation: Materials. Subject to the provisions of

       subdivision (B)(5) of this rule, a party may obtain discovery of documents,

       electronically stored information and tangible things prepared in anticipation

       of litigation or for trial by or for another party or by or for that other party's

       representative * * * only upon a showing of good cause therefor. A

       statement concerning the action or its subject matter previously given by

       the party seeking the statement may be obtained without showing good

       cause. A statement of a party is (a) a written statement signed or otherwise

       adopted or approved by the party, or (b) a stenographic, mechanical,

       electrical, or other recording, or a transcription thereof, which is a

       substantially verbatim recital of an oral statement which was made by the

       party and contemporaneously recorded. (Emphasis added).



       {¶50} “[A] showing of good cause under Civ.R. 26(B)(3) requires demonstration

of need for the materials—i.e., a showing that the materials, or the information they

contain, are relevant and otherwise unavailable. The purpose of the work-product rule is

‘(1) to preserve the right of attorneys to prepare cases for trial with that degree of privacy

necessary to encourage them to prepare their cases thoroughly and to investigate not

only the favorable but the unfavorable aspects of such cases and (2) to prevent an

attorney from taking undue advantage of his adversary's industry or efforts.’ Civ.R. 26(A).

To that end, Civ.R. 26(B)(3) places a burden on the party seeking discovery to
Stark County, Case No. 2017CA0004                                                       20

demonstrate good cause for the sought-after materials.” Jackson v. Greger, 110 Ohio

St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, at ¶ 16.

      {¶51} The deposition questions posed by Griffith to Rainieri sought factual

information. This information is otherwise unavailable to Griffith because it is within the

exclusive possession and knowledge of Aultman’s risk management department.

      {¶52} The trial court stated no exception to “such privilege” applies. While it is

unclear whether the trial court was addressing communications between Aultman and its

attorney (“attorney-client privilege”) or the work-product privilege [or perhaps both], we

find the public policy exception to the work-product doctrine would apply. That public

policy is embodied in Civ.R. 26(B)(3) and R.C. 3701.74. The fact existent medical records

were compiled into different data formats does not cause them to lose their underlying

status as medical records.

      {¶53} Based upon the foregoing, we find the trial court erred in denying Griffith’s

motion to compel.

      {¶54} Griffith’s second assignment of error is sustained.
Stark County, Case No. 2017CA0004                                                       21


      {¶55} The judgment of the Stark County Court of Common Pleas is reversed and

the matter remanded for further proceedings consistent with this Opinion and the law.

By: Hoffman, J.

Gwin, P.J. and

Wise, Earle, J. concur
