[Cite as Caiazza v. Mercy Med. Ctr., Inc., 2012-Ohio-3940.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                              JUDGES:
MATTHEW P. CAIAZZA                                    :       Hon. Patricia A. Delaney, P.J.
                                                      :       Hon. W. Scott Gwin, J.
                         Plaintiff-Appellant          :       Hon. William B. Hoffman, J.
                                                      :
-vs-                                                  :
                                                      :       Case No. 2012-CA-83
MERCY MEDICAL CENTER, INC.,                           :
ET AL                                                 :
                                                      :       OPINION
                   Defendants-Appellees




CHARACTER OF PROCEEDING:                                  Civil appeal from the Stark County Court of
                                                          Common Pleas, Case No. 2011CV02682

JUDGMENT:                                                 Reversed and Remanded

DATE OF JUDGMENT ENTRY:                                   August 27, 2012

APPEARANCES:

For Plaintiff-Appellant                                   For Defendant-Appellee-Jennifer Jones

SALLY HENNING                                             CRAIG G. PELINI
7296 Ashburton Circle N.W.                                PAUL B. RICARD
North Canton, OH 44720                                    Bretton Comons - Suite 400
                                                          8040 Cleveland Avenue N.W.
TODD M. CONNELL                                           North Canton, OH 44720
P.O. Box 782
Tallmadge, OH 44306                                       For Defendants-Appellees
                                                          Mercy Medical Center
                                                          KAREN SOEHNLEN MCQUEEN
                                                          Krugliak, Wilkins, Griffiths
                                                          & Dougherty Co., LPA
                                                          4775 Munson Street N.W.
                                                          Canton, OH 44718
[Cite as Caiazza v. Mercy Med. Ctr., Inc., 2012-Ohio-3940.]


Gwin, J.,

        {¶1}     Appellant Matthew P. Caiazza [“Caiazza”] appeals the April 20, 2012 and

January 20, 2012 judgment entries of the Stark County Court of Common Pleas

granting appellee Mercy Medical Center, Inc. and Peter Christ [“MMC”] and appellee

Jennifer     Jones       [“Jones”]     motions       to       compel   discovery   of   attorney-client

communications.

                                           STANDARD OF REVIEW

        {¶2}     This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

        (E) Determination and judgment on appeal. The appeal will be determined

        as provided by App. R. 11.1. It shall be in sufficient compliance with App.

        R. 12(A) for the statement of the reason for the court's decision as to each

        error to be in brief and conclusionary form. The decision may be by

        judgment entry in which case it will not be published in any form.

        {¶3}     One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusionary decision more quickly than in a case

on the regular calendar where the briefs, facts and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th

Dist. 1983). This appeal shall be considered in accordance with the aforementioned

rule.

                                  FACTS AND PROCEDURAL HISTORY

        {¶4}     Caiazza filed suit against MMC and Jones following his termination from

employment at MMC. Caiazza's Complaint contained causes of action for spoliation,
Stark County, Case No. 2012-CA-83                                                           3


sex discrimination, fraud, unlawful retaliation, and aiding and abetting unlawful

discrimination.

       {¶5}   MMC terminated Caiazza’s employment after he admitted to touching

Jones's breasts. As a result of this conduct, Caiazza received a criminal charge for

sexual imposition, and eventually pled to a charge of disorderly conduct.

       {¶6}   While the criminal charge was pending, on October 20, 2010, Caiazza

issued a subpoena duces tecum to MMC requesting "certified copies of Matthew

Caiazza's and Jennifer Jones's employee and personnel records, as well as any videos

and all other documentation involving the investigation of Matthew Caiazza and/or

Jennifer Jones." (See Caiazza's First Amended Complaint at ¶110). It is Caiazza's

allegation that MMC's response to Caiazza’s subpoena duces tecum was incomplete

and did not contain all information regarding Jones and Caiazza under MMC's control,

Id. at ¶119. Caiazza alleges that the withheld information was vital to his ability to

prevail in the then pending criminal action and that he has been harmed by the failure to

provide the complete records. (Caiazza’s First Amended Complaint at ¶84).

       {¶7}   On March 8, 2012, MMC filed a Motion to Compel discovery due to waiver

of attorney-client privilege, or in the alternative, Motion in Limine (hereinafter referred to

as "MMC's Motion to Compel"). On March 13, 2012, Jones filed a Motion to Compel

discovery or, in the alternative, Motion for Summary Judgment (hereinafter referred to

as "Jones's Motion to Compel").

       {¶8}   On April 20, 2012, the Trial Court below granted both Motions to Compel

stating:
Stark County, Case No. 2012-CA-83                                                       4


             {¶9}   Upon review, this Court finds that, based upon the

      allegations of fraud and spoliation, Caiazza apparently intends to put at

      issue his defense, including trial strategy, of the criminal charges resulting

      from the allegations asserted in this matter. As such, the Court finds that

      Caiazza has waived the attorney-client privilege with respect to such

      matters and, further, finds that Mercy and Jones are entitled to discovery

      in this regard. Accordingly, the Motions to Compel are, hereby, sustained

      and discovery shall proceed in accordance with this entry.

                                 ASSIGNMENTS OF ERROR

      {¶10} Caiazza raises one assignment of error,

      {¶11} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING

APPELLEES’ MOTIONS TO COMPEL DISCOVERY.”

                                               I.

      {¶12} The issue before this Court is whether the trial court abused its discretion

in granting MMC and Jones’ motions to compel. Specifically, whether the trial court

abused its discretion in granting Jones’ request for copies “of [Caiazza’s] ‘file’ for his

underlying criminal citation wherein he was represented by Attorney Michael Boske...”

and both Jones and MMC’s request “that [Caiazza] be ordered to respond to all

questions poised concerning Caiazza’s trial strategy, including, but not limited to

discussions with Attorney Boske...” [Motion to Compel Discovery Or, In the Alternative,

Motion For Summary Judgment, filed on behalf of Jennifer Jones, March 13, 2012;

Motion To Compel Due to Waiver Of Attorney-Client Privilege, Or, In the Alternative,

Motion in Limine, filed on behalf of MMC and Peter Christ, March 8, 2012.]
Stark County, Case No. 2012-CA-83                                                      5

                                          ANALYSIS

      {¶13} Generally, discovery orders are not appealable. Walters v. Enrichment

Center of Wishing Well, Inc., 78 Ohio St.3d 118, 676 N.E.2d 890(1997). However, if the

judgment orders a party to disclose allegedly privileged material, it is appealable

pursuant to R.C. 2505.02(A)(3) and (B)(4). Northeast Professional Home Care, Inc. v.

Advantage Home Health Servs., Inc., 188 Ohio App.3d 704, 936 N.E.2d 964, 2010-

Ohio-1640 at ¶ 34.

      {¶14} In the case at bar, we are confronted with two distinct privileges

concerning the information sought from Caiazza, the attorney-client privilege and the

work-product privilege.

      {¶15} “The attorney-client privilege is one of the oldest recognized privileges for

confidential communications.” Swidler & Berlin v. United States, 524 U.S. 399, 403, 118

S.Ct. 2081, 141 L.Ed.2d 379(1998). In Jackson v. Greger, 110 Ohio St.3d 488, 2006-

Ohio-4968, 854 N.E.2d 487, the court stated, “R.C. 2317.02(A) provides a testimonial

privilege—i.e., it prevents an attorney from testifying concerning communications made

to the attorney by a client or the attorney's advice to a client. A testimonial privilege

applies not only to prohibit testimony at trial, but also to protect the sought-after

communications during the discovery process.” Id. at ¶ 7, fn. 1. There are a number of

well-established exceptions to the attorney-client privilege. Squire, Sanders & Dempsey,

L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 937 N.E.2d 533, 2010-Ohio-

4469, ¶24–43. The privilege is not absolute, and there is no presumption of

confidentiality of all communications made between an attorney and client. Moskovitz v.

Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 660-661, 635 N.E.2d 331(1994). The
Stark County, Case No. 2012-CA-83                                                   6


determination whether a communication should be afforded the cloak of privilege

depends on the circumstances of each case, and the privilege must yield when justice

so requires. Lemley v. Kaiser, 6 Ohio St.3d 258, 264, 452 N.E.2d 1304(1983).

      {¶16} In Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., the

Court discussed the work-product privilege,

             The work-product doctrine emanates from Hickman v. Taylor

      (1947), 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451, in which the

      Supreme Court of the United States recognized that “[p]roper preparation

      of a client's case demands that [the attorney] assemble information, sift

      what he considers to be the relevant from the irrelevant facts, prepare his

      legal theories and plan his strategy without undue and needless

      interference. * * * This work is reflected, of course, in interviews,

      statements, memoranda, correspondence, briefs, mental impressions,

      personal beliefs, and countless other tangible and intangible ways—aptly

      though roughly termed by the Circuit Court of Appeals in this case (153

      F.2d 212, 223) as the ‘Work product of the lawyer.’ Were such materials

      open to opposing counsel on mere demand, much of what is now put

      down in writing would remain unwritten. An attorney's thoughts, heretofore

      inviolate, would not be his own. Inefficiency, unfairness and sharp

      practices would inevitably develop in the giving of legal advice and in the

      preparation of cases for trial. The effect on the legal profession would be

      demoralizing. And the interests of the clients and the cause of justice

      would be poorly served.”
Stark County, Case No. 2012-CA-83                                                            7


             Addressing these concerns, the work-product doctrine provides a

      qualified    privilege   protecting   the   attorney's   mental    processes      in

      preparation of litigation, establishing “a zone of privacy in which lawyers

      can analyze and prepare their client's case free from scrutiny or

      interference by an adversary.” Hobley v. Burge (C.A.7, 2006), 433 F.3d

      946, 949. However, as the Supreme Court of the United States has

      explained, “the doctrine is an intensely practical one, grounded in the

      realities of litigation in our adversary system,” and the privilege afforded by

      the work-product doctrine is not absolute. United States v. Nobles (1975),

      422 U.S. 225, 238 and 239, 95 S.Ct. 2160, 45 L.Ed.2d 141.

             Civ.R. 26(B)(3) describes the work-product doctrine as it applies in

      civil cases in Ohio: “Subject to the provisions of subdivision (B)(5) of this

      rule [relating to retained experts], 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 (including his attorney, consultant, surety,

      indemnitor, insurer, or agent) only upon a showing of good cause

      therefor.”

             In Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854

      N.E.2d 487, we examined the meaning of “good cause,” stating that “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
Stark County, Case No. 2012-CA-83                                                      8


      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 demonstrate good cause for the sought-after

      materials.

             While the protections for attorney work product provided in Civ.R.

      26(B)(3) expressly apply to “documents, electronically stored information

      and tangible things prepared in anticipation of litigation,” protection also

      extends to intangible work product. Hickman, 329 U.S. at 511, 67 S.Ct.

      385, 91 L.Ed. 451; In re Cendant Corp. Securities Litigation (C.A.3, 2003),

      343 F.3d 658, 662; United States v. One Tract of Real Property (C.A.6,

      1996), 95 F.3d 422, 428, fn. 10; 8 Wright, Miller, Kane & Marcus, Federal

      Practice and Procedure (3d Ed.2009), Section 2024. The protection for

      intangible work product exists because “[o]therwise, attorneys' files would

      be protected from discovery, but attorneys themselves would have no

      work product objection to depositions.” In re Seagate Technology, L.L.C.

      (C.A.Fed., 2007), 497 F.3d 1360, 1376.

Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161,

937 N.E.2d 533, 2010-Ohio-4469, ¶¶54-58.
Stark County, Case No. 2012-CA-83                                                              9


       {¶17} In the case at bar, the trial court compelled copies “of [Caiazza’s] ‘file’ for

his underlying criminal citation wherein he was represented by Attorney Michael

Boske...” and “that [Caiazza] be ordered to respond to all questions poised concerning

Caiazza’s trial strategy, including, but not limited to discussions with Attorney Boske. No

evidentiary hearing was conducted, and likewise no in-camera review was undertaken.

Rather, the trial court summarily compelled production finding that Caiazza has “waived”

the “attorney-client” privilege; the trial court did not address the work-product privilege.

       {¶18} We find that the trial court’s order to be overly broad. Some of the

information may be subject to a claim of work-product privilege. See In re Election of

November 6, 1990 for the Office of Attorney General of Ohio, 57 Ohio St.3d 614, 615,

567 N.E.2d 243(1991) (a waiver of attorney/client privilege does not necessarily

constitute a waiver under the work-product doctrine). That privilege is held by Attorney

Boske. See, In re Grand Jury, 4th Dist. Nos. 93CA09, 93CA10, 93CA12, 1995 WL

365386(June 1, 1995); Handguards, Inc. v. Johnson & Johnson, 413 F.Supp.926,

929(N.D. Cal. 1976). Whether Caiazza, as opposed to his attorney, has a “file” for his

underlying criminal citation is not disclosed in the record before this Court. Nor has that

file, if one exits, or the file of Caiazza’s attorney, been made a part of the appellate

record.

       {¶19} Our review reveals that the record is insufficiently developed to determine

whether compelling discovery of the case file and or the answers to questions yet to be

asked violated the attorney-client privilege or the work-product doctrine. Some

documents and answers will undoubtedly be privileged or will be protected by the work-

product doctrine, and conversely some will not. To distinguish between protected and
Stark County, Case No. 2012-CA-83                                                         10


unprotected materials, the trial court should have, at a minimum, conducted an

evidentiary hearing or undertaken an in-camera review of the case file. As the court in

Grace v. Mastruserio, 182 Ohio App.3d 243, 912 N.E.2d 600, 2007-Ohio-3942 (1st

Dist.), stated:

                  A discovery order compelling disclosure of an attorney’s entire case

       file “necessarily reveals the attorney’s mental processes, thus invoking

       work-product protection,” and consequently that file must be reviewed in

       camera, or an evidentiary hearing must be conducted to distinguish

       between discoverable and undiscoverable material. Thus, granting

       Mastruserio’s motion to compel production of an entire case file without a

       review or evidentiary hearing was an abuse of discretion. The trial court

       was in no position to find, as it necessarily did, that the entire case file was

       protected neither by the attorney-client privilege nor by the work-product

       doctrine.

                  When a party seeks to compel discovery of the entirety of an

       attorney case file, the trial court, using its broad discretion, is best suited

       to initially determine whether the evidence is discoverable or is protected

       under attorney-client privilege or the work-product doctrine, and for that

       determination to be a reasonable, informed, and conscionable one, the

       court must conduct an evidentiary hearing or perform an in camera

       inspection of the materials sought to be disclosed.

Id. at ¶¶39-40.
Stark County, Case No. 2012-CA-83                                                     11


      {¶20} A trial court abuses its discretion when it fails to hold an evidentiary

hearing or in-camera review to analyze the requested material alleged to be work-

product or attorney-client privileged. Grace v. Mastruserio at ¶42; Chiasson v. Doppco

Development, LLC, 8th Dist. No. 93112, 2009-Ohio-5013, ¶16; Estate of Hohler v.

Hohler, 185 Ohio App.3d 420, 924 N.E.2d 419, 2009-Ohio-7013, ¶56(7th Dist.).

      {¶21} In the case at bar, we conclude that the trial court abused its discretion by

compelling discovery of the entire case file without holding an evidentiary hearing or

conducting an in-camera review.
Stark County, Case No. 2012-CA-83                                                           12


       {¶22} Accordingly, the sole assignment of error is sustained, in part.

       {¶23} We reverse the order of the Stark County Court of Common Pleas

compelling discovery and remand this case with directions for the trial court to conduct

an evidentiary hearing or to undertake an in-camera review of the case file, and to

decide which materials are protected, as well as which are unprotected, under the

attorney-client privilege or the work-product doctrine. The trial court can then release

that portion of the file that is directly related to Caiazza’s claims for fraud and spoliation.

See, Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d

161, 937 N.E.2d 533, 2010-Ohio-4469, ¶¶62-63. Based upon the documents released,

if any, the trial court can then instruct counsel for the parties what areas can be inquired

into during any subsequent deposition of Caiazza.



By Gwin, J., and

Delaney P.J., concurs;

Hoffman, J., dissents

                                                _________________________________
                                                HON. W. SCOTT GWIN


                                                _________________________________
                                                HON. PATRICIA A. DELANEY


                                                _________________________________
                                                HON. WILLIAM B. HOFFMAN


WSG:clw 0725
Stark County, Case No. 2012-CA-83                                                       13


Hoffman, J. dissenting

       {¶24} I respectfully dissent, in part, from the majority’s opinion.

       {¶25} While I agree the trial court should conduct an in camera review of

Appellant’s criminal file to prevent disclosure of irrelevant work product contained in his

or Attorney Boske’s file, I agree with the trial court Appellant has waived his right to

assert the attorney client privilege.1

       {¶26} I do so for two separate reasons. First and foremost, because the nature

of Appellant’s underlying claim for fraud renders the strategy behind the resolution of his

criminal charge crucial to Appellee’s ability to defend the charge asserted against it. I

find this is the type of case where justice requires disclosure as recognized in Lemley v.

Kaiser (1983), 6 Ohio St.3d 258.

       {¶27} Second, I believe Appellant’s partial disclosure of his conversation with

Attorney Boske operates as a waiver of the privilege.

       {¶28} I would affirm the trial court’s judgment.




                                                  ________________________________
                                                  HON. WILLIAM B. HOFFMAN




1
  I find the majority’s conclusion some answers will undoubtedly be privileged or
protected work product premature even given their proposed disposition of this issue.
(Majority Opinion at 19).
[Cite as Caiazza v. Mercy Med. Ctr., Inc., 2012-Ohio-3940.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


MATTHEW P. CAIAZZA                  :
                                    :
                Plaintiff-Appellant :
                                    :
                                    :
-vs-                                :                         JUDGMENT ENTRY
                                    :
MERCY MEDICAL CENTER, INC., ET AL :
                                    :
                                    :
            Defendants-Appellees    :                         CASE NO. 2012-CA-83




    For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Court of Common Pleas, Ohio, is reversed and remanded to the trial

court for further proceedings in accordance with our opinion and the law. Costs to be

divided equally between the parties.




                                                         _________________________________
                                                         HON. W. SCOTT GWIN


                                                         _________________________________
                                                         HON. PATRICIA A. DELANEY


                                                         _________________________________
                                                         HON. WILLIAM B. HOFFMAN
