[Cite as Zimpfer v. Roach, 2016-Ohio-5176.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SHELBY COUNTY




BLAKE ZIMPFER, ET AL.,

        PLAINTIFFS-APPELLANTS/
        CROSS-APPELLEES,                                 CASE NO. 17-16-03

        v.

SANDRA S. ROACH, ET AL.,                                 OPINION

        DEFENDANTS-APPELLEES/
        CROSS-APPELLANTS.




                 Appeal from Shelby County Common Pleas Court
                                 Probate Division
                          Trial Court No. 2015CVA0001

                                     Judgment Affirmed

                            Date of Decision: August 1, 2016




APPEARANCES:

        Susan D. Solle for Appellants

        James L. Thieman for Appellees
Case No. 17-16-03


ROGERS, J.

        {¶1} Plaintiffs/Appellants/Cross-Appellees, Blake Zimpfer (“Blake”) and

Jody Keith (“Jody”), as legal guardian for Courtney Zimpfer (“Courtney”)

(collectively “Appellants”), appeal the judgment of the Court of Common Pleas of

Shelby County, Probate Division, denying, in part, their motion to quash a

subpoena issued by Defendants/Appellees/Cross-Appellants, Sandra Roach and

Peggy Hall, individually and as co-executrixes of the estate of Robert Zimpfer

(“the Decedent”) (collectively “Appellees”).            For the reasons that follow, we

affirm the judgment of the trial court.

        {¶2} On February 11, 2015, Appellants filed a complaint against Appellees

in the Court of Common Pleas of Shelby County, Probate Division, contesting the

validity of the Decedent’s Last Will and Testament (“the will”).1 Specifically,

Appellants alleged that (1) the will failed to comply with the formal requirements

of a will; (2) the Decedent lacked testamentary capacity to make a will; and (3) the

will was a product of undue influence.

        {¶3} Appellees later filed their answer in which they denied the allegations.

       {¶4} In late 2015, Appellees issued a subpoena duces tecum to Dr. Kreg

Huffer, Appellants’ uncle, pursuant to Civ.R. 45.                 The subpoena requested

production and inspection of the following items:


1
 The complaint also named Bradley Hall, Heather Hall, Rebecca Hall, and Andrea Roach as “Nominal
Defendants/Interested Parties.” (Docket No. 1, p. 1-2).

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Case No. 17-16-03


           1.    All letters, cards, notes, email correspondence, memoranda, or
                 other forms of communication with one or more of the
                 following individuals: 1) [Blake] 2) [Courtney] 3) [Jody] 4)
                 employees of the law firm of Dinsmore and Shohl, LLP2,
                 regarding anything whatsoever to do with [the Decedent]. (This
                 specifically includes all email correspondence in deleted files,
                 and whether such email correspondence has been printed or is
                 in electronic form).

           2.    All papers and other records of every kind and description in
                 any way related to litigation, pending in the Common Pleas
                 Court of Shelby County, Ohio and pertaining to the Estate of
                 [the Decedent], including anything pertaining to the mediation
                 of the case.

(Docket No. 48, Ex. 1).

           {¶5} On January 15, 2016, Appellants filed a motion to quash the

subpoena, claiming that Dr. Huffer’s communications with Appellants’ counsel

were protected under the attorney-client privilege and the work-product doctrine.

           {¶6} First, Appellants argued that Dr. Huffer was a “client” within the

meaning of the attorney-client privilege insofar as he was Blake and Courtney’s

“agent” and “representative.”                 Appellants explained, “Because [Blake and

Courtney] are in the Army and at college, respectively, neither of [them are]

readily available for litigation strategy and preparation discussion. Dr. Huffer is

therefore acting as their agent and representative in those discussions * * *.”

(Docket No. 48, p. 3).




2
    Since the case’s inception, Appellants have been represented by Dinsmore and Shohl, LLP.

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        {¶7} Second, Appellants argued that communications between Dr. Huffer

and Appellants’ counsel were protected under the work-product doctrine because

they were “prepared specifically and exclusively in anticipation of litigation and

trial * * * .” (Id. at p. 4).

        {¶8} Attached to Appellants’ motion was a copy of the subpoena and Dr.

Huffer’s affidavit. The affidavit stated:

        1.    I made the statements in this affidavit upon my own personal
              knowledge, am of the requisite age and capacity to testify as to
              all matters stated, am under no legal disability which would
              preclude me from testifying, and, if called upon to do so, would
              testify as set forth in this affidavit.

        2.    I am over the age of eighteen (18) years and am of sound mind
              and body.

        3.    I am the uncle of [Blake and Courtney].

        4.    I have assumed the role of representative and agent for [Blake
              and Courtney] for purposes of this litigation.

        5.    All communications between myself and any attorneys at
              Dinsmore & Shohl are directly related to litigation issues in my
              role as representative of [Blake and Courtney].

        6.    I do not waive the attorney-client privilege that applies to these
              communications.

(Docket No. 48, Ex. 2, p.1).

        {¶9} On January 19, 2016, Appellees filed their response, arguing that the

affidavit was insufficient to show that Dr. Huffer was Appellants’ “agent” and

“representative.”

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Case No. 17-16-03


      {¶10} First, they argued that Dr. Huffer’s statement that he “assumed the

role as personal representative and agent for [Appellants] for purposes of this

litigation” was an unsupported legal conclusion. (Id.)

      {¶11} Second, they argued that even if Dr. Huffer was Appellants’ “agent”

and “representative,” there was insufficient evidence to show that Appellants were

the source of the communications between Dr. Huffer and Appellants’ counsel.

      {¶12} Third, they argued that while the work-product doctrine arguably

applied to communications made by Appellants’ counsel to Dr. Huffer, “there

ha[d] been no showing by affidavit or otherwise that [the] communications were

made in anticipation of litigation, rather than keeping a family member of the

clients informed”, and Appellants’ counsel had waived any protection by

communicating with a non-party. (Docket No. 49, at p. 4).

      {¶13} On January 21, 2016, Appellants filed their reply.

      {¶14} First, they argued that the relevant inquiry in determining whether

one is an agent or representative of a client is whether the purported

agent/representative acted more as someone conveying information rather than a

consultant. Appellants maintained that Dr. Huffer “served no purpose other than

to communicate with counsel on his niece’s and nephew’s behalf” because “Blake

is serving in the Army and Courtney is in college.” (Docket No. 51, p. 2).




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Case No. 17-16-03


       {¶15} Second, they argued that Appellees were only entitled to their

counsel’s work-product upon a showing of “good cause” and no “good cause”

existed.

       {¶16} On January 29, 2016, the trial court granted, in part, and denied, in

part, Appellants’ motion to quash. Its Entry stated, in part:

       Regarding the first document request set forth in the subpoena,
       [Appellees] seek discovery of documents regarding any
       communications of [Blake and Courtney] regarding the [D]ecedent
       in the possession of Dr. Huffer. As to [Blake and Courntey’s]
       communications with the [D]ecedent or with Dr. Huffer concerning
       this lawsuit, [Appellees] seek discovery from Blake [] and Courtney
       [], parties to this action. In that regard Civ.R. 45(A) provides that ‘a
       subpoena may not be used to obtain . . . the production of documents
       by a party in discovery. Rather, . . . documents or electronically
       stored information may be obtained from a party in discovery only
       pursuant to Civ.R. 34.’ Thus, the subpoena of the [Appellees] for
       communications between [Blake and Courtney] to anyone about [the
       Decedent’s] case must be made under Civ.R. 34 to them.
       Accordingly, the motion to quash as to communications of [Blake
       and Courtney] concerning the [D]ecedent is WELL TAKEN.

       Addressing the subpoena as it relates to Dr. Huffer’s communication
       with [Jody] and employees of the law firm of Disnmore and Shohl,
       LLP regarding the [D]ecedent, that matter is not subject to any
       privilege or work product exception. Accordingly, the subpoena
       commanding Dr. Huffer to produce his communications with [Jody]
       and the employees of the law firm of Dinsmore and Shohl, LLP is
       subject to production.

(Docket No. 54, p. 2-3).

       {¶17} It is from this judgment that both parties appeal, presenting the

following assignments of error for our review.


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                         Appellants’ Assignments of Error

                            Assignment of Error No. I

      THE TRIAL COURT VIOLATED THE ATTORNEY-CLIENT
      PRIVILEGE DENYING APPELLANTS’ MOTION TO
      QUASH SUBPOENA.

                            Assignment of Error No. II

      THE TRIAL COURT ABUSED ITS DISCRETION IN
      ORDERING THE PRODUCTION OF DOCUMENTS
      PROTECTED BY THE WORK PRODUCT DOCTRINE.

                     Appellees’ Cross-Assignment of Error

      THE TRIAL COURT ABUSED ITS DISCRETION IN
      FINDING THAT CIV.R. 45(A) PREVENTS THE ISSUING OF
      A SUBPOENA TO A NON-PARTY FOR THE PRODUCTION
      OF COMMUNICATIONS INVOLVING THE OPPOSING
      PARTY.

      {¶18} Due to the nature of Appellants’ assignments of error, we elect to

address them together.

                  Appellants’ Assignments of Error Nos. I & II

      {¶19} In their first and second assignments of error, Appellants argue that

the trial court erred in denying their motion to quash insofar as it ordered Dr.

Huffer to turn over his communications with their counsel.          Specifically,

Appellants argue that the communications are protected under the attorney-client

privilege and the work-product doctrine. We disagree.




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                               Standard of Review

      {¶20} “Ordinarily, a discovery dispute is reviewed under an abuse of

discretion standard.” Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-

Ohio-6275, ¶ 13 (2010). But “if the discovery issue involves an alleged privilege

* * * it is a question of law that must be reviewed de novo.” Id.; see also Roe v.

Planned Parenthood S.W. Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, ¶

29.

      {¶21} We note, however, that the Ohio Supreme Court has previously

expressed that “[t]he existence of a Civ.R. 26(B)(1) ‘privilege’ as well as Civ.R.

26(B)(3) ‘good cause’ are discretionary determinations to be made by the trial

court.” State ex rel. Greater Cleveland Regional Transit Auth. v. Guzzo, 6 Ohio

St.3d 270, 271 (1983). A trial court will be found to have abused its discretion

when its decision is contrary to law, unreasonable, not supported by the evidence,

or grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18

(2d Dist.). When applying the abuse of discretion standard, a reviewing court may

not simply substitute its judgment for that of the trial court. Blakemore v.

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

      {¶22} Under either standard of review, we reach the same result.




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                              Civ.R. 26(B) and 45(C)

       {¶23} The Rules of Civil Procedure provide liberal discovery provisions.

The scope of discovery includes “any matter, not privileged, which is relevant to

the subject matter involved in the pending action, whether it relates to the claim or

defense of the party seeking discovery or to the claim or defense of any other party

* * *.” (Emphasis added.) Civ.R. 26(B)(1).

       {¶24} One available means of discovery is a Civ.R. 45 subpoena, which

allows a party to command a non-party to:

       ***

       (iv) produce and permit inspection and copying of any designated
       documents or electronically stored information that are in the
       possession, custody, or control of the person;

       ***

Civ.R. 45(A)(1)(b). Compare Civ.R. 34(A) (governing requests for production and

inspection of documents between parties.)

       {¶25} However, “[o]n a timely motion, the court from which the subpoena

was issued shall quash or modify the subpoena, or order appearance or production

only under specified conditions, if the subpoena * * * [r]equires disclosure of

privileged or otherwise protected matter and no exception or waiver applies * * *.”

Civ.R. 45(C)(3)(b).




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       {¶26} “When information subject to discovery is withheld on a claim that it

is privileged or subject to protection as trial preparation materials, the claim shall

be made expressly and shall be supported by a description of the nature of the

documents, communications, or things not produced that is sufficient to enable the

demanding party to contest the claim.” Civ.R. 26(B)(6)(a).

       {¶27} “The burden to show that testimony or documents are confidential or

privileged is on the party seeking to exclude the material.” Grace v. Mastruserio,

182 Ohio App.3d 243, 2007-Ohio-3942, ¶ 19 (1st Dist.), citing Lemley v. Kaiser, 6

Ohio St.3d 258, 263-264 (1983); see also Waldmann v. Waldmann, 48 Ohio St.2d

176, 178 (1976) (“[T]he burden of showing that testimony sought to be excluded

under the doctrine of privileged attorney-client communications rests upon the

party seeking to exclude it.”); Giusti v. Akron Gen. Med. Ctr., 178 Ohio App.3d

53, 2008-Ohio-4333, ¶ 17 (9th Dist.) (“The party claiming the privilege has the

burden of proving that the privilege applies to the requested information.”).

                             Attorney-Client Privilege

       {¶28} “The attorney-client privilege is one of the oldest recognized

privileges for confidential communications.” State ex rel. Leslie v. Ohio Hous.

Fin. Agency, 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 19, quoting Swidler & Berlin

v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). It

“is the cornerstone upon which the attorney-client relationship is formed.” G.


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Rand Smith Co., L.P.A. v. Footbridge Capital, LLC, 3rd Dist. Union No. 14-01-39,

2002-Ohio-2189, ¶ 7. “Its purpose is to encourage full and frank communication

between attorneys and their clients and thereby promote broader public interests in

the observance of law and administration of justice.” Upjohn Co. v. United States,

449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).

       {¶29} In Ohio, the attorney-client privilege is governed by both R.C.

2317.02(A)(1) and common law. R.C. 2317.02(A)(1) provides that an attorney

shall not testify “concerning a communication made to the attorney by a client in

that relation or the attorney's advice to a client”. The common-law privilege “

‘reaches far beyond a proscription against testimonial speech [and] protects

against any dissemination of information obtained in the confidential relationship.’

” MA Equip. Leasing I, L.L.C. v. Tilton, 10th Dist. Franklin No. 12AP-564, 2012-

Ohio-4668, ¶ 19, quoting Leslie at ¶ 26.

       {¶30} Whether the communications between Dr. Huffer and Appellants’

counsel are protected by the attorney-client privilege depends on whether Dr.

Huffer is a “client” within the meaning of the privilege. Although this matter falls

outside the scope of R.C. 2317.02(A)(1), we are still guided by the Revised

Code’s definition of “client.”

       R.C. 2317.021(A) defines “client” as

       a person * * * that, directly or through any representative, consults
       an attorney for the purpose of retaining the attorney or securing legal

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       service or advice from the attorney in the attorney's professional
       capacity, or consults an attorney employee for legal service or
       advice, and who communicates, either directly or through an agent *
       * * or other representative, with such attorney * * *.
       {¶31} Here, the only piece of evidence supporting the existence of an

attorney-client relationship between Dr. Huffer and Appellants’ counsel is Dr.

Huffer’s sworn statement that he “assumed the role of representative and agent for

Blake and Courtney for purposes of this litigation.” (Docket No. 48, Ex. 2, p.1).

The record contains no evidence from which one could conclude that Blake and/or

Courtney designated, appointed, or otherwise requested Dr. Huffer to act as their

agent and representative for purposes of this litigation. For example, Dr. Huffer’s

affidavit did not explain how he came to “assume” this role, and neither Blake nor

Country submitted an affidavit supporting Dr. Huffer’s statement.

       {¶32} While Appellants argue that Dr. Huffer “assumed” this role due to

the fact that Blake was in the Army and Courtney was in college, this evidence is

not contained in Dr. Huffer’s affidavit, and even if it were, it is not evidence that

Appellants’ counsel’s clients—Blake and Courtney—designated, appointed, or

otherwise requested Dr. Huffer to act as their agent or representative within the

meaning of the privilege.

       {¶33} Importantly, Appellants never requested an evidentiary hearing

during which they could have presented additional evidence supporting the

existence of an attorney-client relationship between Dr. Huffer and Appellants’


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counsel, and Civ.R. 45(C) does not require the trial court to hold an evidentiary

hearing prior to ruling on a motion to quash. Bickel v. Cochran, 10th Dist.

Franklin No. 14AP-439, 2014-Ohio-5862, ¶ 12 (“There is no requirement that the

trial court hold an evidentiary hearing on a motion to quash a subpoena brought

pursuant to Civ.R. 45(C).”).

       {¶34} For these reasons, we cannot say that the trial court erred in denying

Appellants’ motion to quash on the grounds that the communications were not

protected under the attorney-client privilege because Appellants did not meet their

burden of proving that the privilege applied to the requested information.

                               Work-Product Doctrine

       {¶35} Civ.R. 26(B)(3) codifies what is often referred to as the work-

product doctrine.   It states: “[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 * * * or agent) only upon a showing of good

cause therefor.”    Civ.R. 26(B)(3).    The work-product doctrine protects 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.’ ” Squire, Sanders, & Dempsey, L.L.P. v.




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Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010–Ohio–4469, ¶ 55, citing

Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.2006).

       {¶36} Appellants argue that the communications between Dr. Huffer and

Appellants’ counsel are privileged under the work-product doctrine because Dr.

Huffer stated in his affidavit that “[a]ll communications between [himself] and any

attorneys at Dinsmore & Shohl are directly related to litigation issues in [his] role

as representative of [Blake and Courtney].”        (Docket No. 48, Ex. 2, p. 1).

However, this argument rests on the premise that the communications fall within

the scope of the work-product doctrine because Dr. Huffer is a “client” within the

meaning of the attorney-client privilege. But, as explained above, it cannot be

established that Dr. Huffer is a “client” within the meaning of the privilege, and

therefore, this argument necessarily fails.

       {¶37} In the alternative, Appellants ask that the matter be remanded so that

the trial court can hold an in camera review of the documents. Presumably, these

documents reflect communications between Dr. Huffer and Appellants’ counsel.

But, again, Appellants never requested an in camera review during which they

could have presented the documents to the trial court for review, and Civ.R. 45(C)

does not require the trial court to hold an in camera review prior to ruling on a

motion to quash.




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       {¶38} For these reasons, we cannot say that the trial court erred in denying

Appellants’ motion to quash on the grounds that the documents were not protected

under the work-product doctrine because Appellants did not meet their burden of

proving that the doctrine applied to the requested information.

       {¶39} Accordingly, we overrule Appellants’ first and second assignments

of error.

                       Appellees’ Cross-Assignment of Error

       {¶40} In their cross-assignment of error, Appellees argue that the trial court

erred in finding that the subpoena for communications between Appellants and Dr.

Huffer must be made under Civ.R. 34 instead of Civ.R. 45. However, at oral

argument, Appellees withdrew this assignment of error as moot, citing that Dr.

Huffer did not have in his possession any documents responsive to this portion of

Appellees’ subpoena.

       {¶41} Accordingly, Appellees’ cross-assignment of error is rendered moot.

App.R. 12.

        {¶42} Having found no error prejudicial to the appellants, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr


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