[Cite as Tucker v. Compudyne Corp., 2014-Ohio-3818.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                     No. 100554




       BETTY TUCKER, INDIVIDUALLY, ETC., ET AL.
                                                         PLAINTIFFS-APPELLEES

                                                   vs.

               COMPUDYNE CORPORATION, ET AL.
                                                         DEFENDANTS-APPELLANTS




                                    JUDGMENT:
                               AFFIRMED AS MODIFIED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-09-711927

        BEFORE: S. Gallagher, J., Jones, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                        September 4, 2014
ATTORNEYS FOR APPELLANTS

Kevin C. Alexandersen
Eric H. Mann
Colleen A. Mountcastle
Gallagher Sharp
Sixth Floor, Bulkley Building
1501 Euclid Avenue
Cleveland, OH 44115


ATTORNEYS FOR APPELLEES

For Betty Tucker, Individually, etc., et al.

Brian M. White
The Mismas Law Firm, L.L.C.
38052 Euclid Avenue
Suite 104
Willoughby, OH 44094

Also listed:

For Crane Co.

Kristen M. Delsole
K & L Gates, L.L.P.
K & L Center
210 6th Avenue
Pittsburgh, PA 15222

Weil McClain Division of The Marley Co.

Laura K. Hong
Tucker Ellis L.L.P.
950 Main Avenue, Suite 1100
Cleveland, OH 44113-7213
SEAN C. GALLAGHER, J.:

      {¶1} Defendant-appellant CompuDyne Corporation (“CompuDyne”) appeals the

decision of the Cuyahoga County Court of Common Pleas that denied in part a motion for

a protective order. For the reasons stated herein, we affirm the decision as modified.

      {¶2} This action was commenced on December 3, 2009, by Michael Tucker

(“Tucker”), Betty Tucker, and their minor children, alleging that Tucker contracted

mesothelioma as a result of being exposed to asbestos-containing products manufactured

by or otherwise connected to the various defendants, including CompuDyne.

Unfortunately, Tucker died of mesothelioma on January 5, 2011.           Afterward, Betty

Tucker, as the executrix of the estate of Michael Tucker, filed an amended complaint that

included a wrongful death cause of action.

      {¶3} In December 2009 and January 2010, a video deposition was taken of Tucker.

 Tucker testified that he was employed by Steelman Cincinnati during a period of less

than a year in 1980 and 1981.       During this time he worked as a laborer assisting

technicians in servicing and repairing boilers at various work sites. There is evidence

that at three of the work sites, Tucker worked on York-Shipley boilers, from which he

believed he was exposed to asbestos.

      {¶4} William Rock, the chief financial officer for CompuDyne from 1996 until

2008, represented in his affidavit that CompuDyne is a financial holding company with

no employees and that CompuDyne has never manufactured or sold asbestos or

asbestos-containing products. Rock represented that on May 29, 1969, York-Shipley,
Inc. (DE), which he understood to be in existence since at least 1943 as a manufacturer of

boilers, merged into CompuDyne and that CompuDyne was the surviving corporate

entity.      CompuDyne, by virtue of the 1969 merger, acquired all liabilities of

York-Shipley, Inc. (DE), up to May 29, 1969. CompuDyne concedes it is responsible for

boilers manufactured by York-Shipley, Inc. (DE), up to May 1969.

          {¶5} Rock indicated in his affidavit that following the merger, all of the assets of

York-Shipley, Inc. (DE), were transferred to York-Shipley, Inc. (PA), which had been

incorporated as a subsidiary of CompuDyne, and that thereafter, York-Shipley, Inc. (PA),

manufactured boilers and other parts. The affidavit of Rock sets forth the subsequent

corporate history of York-Shipley, Inc. (PA), and states that CompuDyne was dissolved

on March 1, 1993. Various transaction documents and annual reports were attached to

Rock’s affidavit. Rock was also deposed in the matter.

          {¶6} In responding to interrogatories, CompuDyne indicated that it had acquired

York-Shipley, Inc. (DE), and referenced the articles of merger.            CompuDyne also

referenced      pre-May 1969      manufactured     boilers   by York-     Shipley,   Inc., as

asbestos-containing products that were placed into the stream of commerce. However,

no specifics concerning the brand or trade names and dates of production were provided.

Further, rather than responding to interrogatory No. 5 with specific information regarding

asbestos-containing products that were manufactured and sold by its subsidiaries and/or

predecessors, CompuDyne responded that it had not engaged in such a practice.
       {¶7} In the course of the proceedings, CompuDyne filed a motion for summary

judgment that was denied by the trial court. The trial court found there is sufficient

evidence that Tucker worked on York-Shipley boilers and was exposed to asbestos

contained in the boilers.

       {¶8} During discovery, CompuDyne inadvertently disclosed a 17-page document

titled “CompuDyne Annual Review National Coordinating Counsel January 20, 2011,”

which is referred to as “the Litigation Analysis.” The Litigation Analysis was prepared

by Scott Henry, CompuDyne’s national coordinating counsel.             CompuDyne filed a

motion for protective order seeking to protect the Litigation Analysis from discovery

under the attorney-client privilege and the work-product doctrine.         The motion was

opposed by plaintiffs-appellees.

       {¶9} The trial court conducted an in camera inspection of the Litigation Analysis

and held a hearing on the motion. At the hearing, the trial court found that the Litigation

Analysis was a privileged document, but found the protection afforded to paragraphs

18(a) and (b) was obviated based upon plaintiffs’ need for the information and inability to

obtain it elsewhere. The court suggested that if CompuDyne chose to amend its answers

to interrogatories or to propose a stipulation to comport with the information contained in

paragraphs 18(a) and (b) of the Litigation Analysis, then there would be no need for

disclosure.

       {¶10} After the parties failed to reach an agreed stipulation, CompuDyne requested

a written ruling from the trial court. Thereafter, the trial court issued an order that denied
the motion for protective order as to paragraphs 18(a) and (b). Paragraph 18(a) sets forth

a history of York-Shipley, Inc., including its production of boilers for commercial

application, and sets forth the manner in which asbestos was used in various products

manufactured by York-Shipley, including the specific asbestos-containing material used

inside its boilers. Paragraph 18(b) sets forth a corporate history of CompuDyne in regard

to its relationship with York-Shipley, Inc. (DE), and York-Shipley, Inc. (PA), which

includes the subsidiaries and predecessors of CompuDyne.

       {¶11} The trial court recognized that much of the Litigation Analysis had no

relevance to this case. However, the court found that paragraphs 18(a) and (b) were

subject to disclosure, stating in part:

             The Court finds these two paragraphs deal directly with issues
       germane to this case.

              * * * Throughout the litigation of this case, Defendant CompuDyne
       insisted that it has no documents concerning its relationship with
       York-Shipley, the manufacturer of the asbestos laden boilers to which
       Plaintiff’s decedent was allegedly exposed. At the hearing before the
       Court on October 15, 2013, counsel for CompuDyne informed the court that
       there was no living person with sufficient knowledge of [CompuDyne’s]
       corporate history to affirm, deny or explain the relationship between
       CompuDyne and York-Shipley or the presence of asbestos in York-Shipley
       boilers. More significantly, in responses to discovery propounded by
       Plaintiffs, [CompuDyne] denied the existence of any subsidiaries and/or
       predecessors.

             Consequently, Defendant CompuDyne Corporation has failed to
       demonstrate good cause to protect paragraphs 18(a) and (b) from discovery
       and from presentation as evidence at trial. Disclosure and use at trial is
       warranted, since there is no other source of this critical information.
       {¶12} CompuDyne appeals this ruling.         Under its two assignments of error,

CompuDyne claims the trial court erred in ordering the disclosure of privileged

information contained in paragraphs 18(a) and (b) of the Litigation Analysis because (1)

“[t]he document was prepared by national coordinating counsel for CompuDyne and is

protected by the attorney-client privilege[,]” and (2) “plaintiffs failed to show good cause

under Civ.R. 26(B)(3) to defeat the opinion work product privilege attached to the

Litigation Analysis.”

       {¶13} Under Civ.R. 26(B)(1), the scope of pretrial discovery is broad and parties

may obtain discovery regarding any matter that is not privileged and is relevant to the

subject matter. When a discovery issue involves an alleged privilege, it is a question of

law that must be reviewed de novo. Ward v. Summa Health Sys., 128 Ohio St.3d 212,

2010-Ohio-6275, 943 N.E.2d 514, ¶ 13. The burden of showing that a document is

privileged rests with the party seeking to exclude it. Li v. Olympic Steel, Inc., 8th Dist.

Cuyahoga No. 97286, 2012-Ohio-603, ¶ 9.                 “The determination whether a

communication should be afforded the cloak of the privilege depends on the

circumstances of each case, and the privilege must yield when justice so requires.” Id. at

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

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

2317.02(A), which provides a testimonial privilege, and by common law, which broadly

protects against any dissemination of information obtained in the confidential

attorney-client relationship.” State ex rel. Dawson v. Bloom-Carroll Local School Dist.,
131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 27, citing State ex rel. Toledo

Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905

N.E.2d 1221, ¶ 24. The privilege is intended to encourage full and frank communication

between attorneys and their clients and is founded on the premise that confidences shared

in the attorney-client relationship are to remain confidential. State ex rel. Toledo Blade

Co. at ¶ 21. “[A]n attorney’s factual investigation, if incident to or related to any legal

advice that the attorney would give on a particular issue, is covered by the privilege.”

State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶

29, citing State ex rel. Toledo Blade Co. at ¶ 28-31.

       {¶15} Although the Litigation Analysis arguably is subject to the attorney-client

privilege, we conclude that the trial court properly ordered the disclosure of paragraphs

18(a) and (b). Because the attorney-client privilege is an exception to the general rules

of disclosure, where it obstructs the search for relevant information, the privilege should

be strictly construed. Air-Ride, Inc. v. DHL Express (USA), Inc., 12th Dist. Clinton No.

CA2008-01-001, 2008-Ohio-5669, ¶ 12, citing Farm Credit Bank of St. Paul v. Huether,

454 N.W.2d 710, 721 (N.D.1990).

       {¶16} In this case the Litigation Analysis was inadvertently disclosed. Several

Ohio courts have adopted a case-by-case approach to determine whether the

circumstances of the inadvertent disclosure warrant a finding that the privilege has been

waived. See Air-Ride, Inc. at ¶ 16; Guider v. Am. Heritage Homes Corp., 3d Dist. Logan

No. 8-07-16, 2008-Ohio-2402, ¶ 9; Miles-McClellan Constr. Co. v. Westerville Bd. of
Edn., 10th Dist. Franklin Nos. 05AP-1112, 05AP-1113, 05AP-1114, and 05AP-1115,

2006-Ohio-3439, ¶ 14-16.          Under this approach, the court generally considers the

following five factors to determine whether the inadvertent disclosure should constitute a

waiver of the privilege:

       (1) the reasonableness of the precautions taken to prevent inadvertent
       disclosure; (2) the time taken to rectify the error; (3) the scope of the
       discovery; (4) the extent of the disclosure; and (5) the “overriding issue of
       fairness.”

Air Ride, Inc. at ¶ 17; Guider at ¶ 9.               Although no one factor is dispositive,

“overreaching considerations of fairness” may weigh heavily in favor of finding a waiver

of privilege after an inadvertent disclosure. See Air Ride, Inc. at ¶ 17. We adopt this

approach herein.1

       {¶17} The inadvertent disclosure of a privileged document itself is indicative of a

failure to take reasonable precautions to protect the privilege. Air Ride, Inc. at ¶ 18. In

this case, it is unclear what, if any, precautions were in place to prevent dissemination of

the Litigation Analysis.      The document, which was prepared in January 2012, was

discovered by plaintiffs’ counsel in July 2013. After the inadvertent disclosure was

discovered, CompuDyne promptly asked for its return.                  Upon being informed of

opposing counsel’s intent to dispute the privileged nature of the document, CompuDyne

       1
           Although Fed.R.Evid. 502(b) sets forth three requirements for an inadvertent disclosure to
operate as a waiver, federal courts generally consider five similar factors to determine whether an
inadvertent disclosure constitutes a waiver.          See Inhalation Plastics, Inc. v. Medex
Cardio-Pulmonary, Inc., S.D.Ohio No. 2:07-CV-116, 2012 U.S. Dist. LEXIS 121830 (Aug. 28, 2012).
  The Advisory Committee Notes to Fed.R.Evid. 502(b) state that “[t]he rule is flexible enough to
accommodate any of those * * * factors.”
filed a motion for a protective order and the trial court held an in camera review and

conducted a hearing. Although the record does not show the circumstances under which

the document was disclosed or the scope of discovery involved with its production, the

extent of the disclosure was complete as plaintiffs’ counsel had a full opportunity to

review the document, analyze its content, and assess its import on the case. The trial

court considered that the information contained in paragraphs 18(a) and (b) dealt directly

with issues germane to this case, that the information was not provided in the responses to

discovery, and that disclosure of the information was warranted.

       {¶18} “Where inadvertently disclosed documents are found to be relevant to the

receiving party, fairness dictates waiver should be found.” Air Ride, Inc. at ¶ 28, citing

Draus v. Healthtrust, Inc., 172 F.R.D. 384, 388 (S.D.Ind.1997). Further, in this case, the

trial court initially gave CompuDyne the opportunity to amend its interrogatories or to

propose a stipulation to comport with the information contained in paragraphs 18(a) and

(b) of the Litigation Analysis.     Because an agreed stipulation was not reached, the

overriding issue of fairness required disclosure under the circumstances of this case.

       {¶19} We next consider the work-product doctrine. In Ohio, the work-product

doctrine is set forth in Civ.R. 26(B)(3), which provides in relevant part:

       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.

The Ohio Supreme Court has stated 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.”         Jackson v.

Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, ¶ 16. The party seeking

discovery has the burden to demonstrate good cause for the sought-after materials. Id.

The determination of whether materials are protected by the attorney work-product

doctrine and the determination of 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, 452 N.E.2d 1314 (1983). Our review of these determinations is for

an abuse of discretion. Sherwin-Williams Co. v. Motley Rice L.L.C., 8th Dist. Cuyahoga

No. 96927, 2012-Ohio-809, ¶ 34.

       {¶20} In this matter, the Litigation Analysis was prepared by Scott Henry, national

coordinating counsel for CompuDyne. He prepared the document for CompuDyne’s

outside corporate counsel and its insurers at their request. It was intended to serve as a

comprehensive assessment of all pending claims against CompuDyne. Henry testified

that the document contained his analysis and opinions of the national litigation that his

client was facing in multiple cases in multiple states.

       {¶21} Henry testified that paragraphs 18(a) and (b) of the Litigation Analysis were

prepared by prior national coordinating counsel, who was deceased.          Henry had no

reason to believe the information was incorrect.          These paragraphs provide factual

information regarding the corporate history of CompuDyne in regard to its relationship

with York-Shipley, Inc. (DE), and York-Shipley, Inc. (PA), and also detail the asbestos
content of York-Shipley boilers. The paragraphs contain factual information that was

not provided in the responses to discovery.

       {¶22} Although CompuDyne maintains that it provided accurate responses to the

interrogatories, it avoided providing responses and information as to York-Shipley and

the asbestos-containing products used in York-Shipley boilers.        Further, although

CompuDyne claims that it has never asserted that it was not responsible for the pre-1969

York-Shipley boilers at issue in this case and has provided corporate documents

concerning its relationship with York-Shipley, Inc. (DE), and York-Shipley, Inc. (PA),

the information provided does not contain the factual details contained in the Litigation

Analysis, which implicates York-Shipley in manufacturing and selling boilers that

contained asbestos-containing parts.     As the trial court recognized, CompuDyne’s

response to interrogatory No. 5, which indicated it had never engaged in the mining,

manufacturing, selling, marketing, installation, or distribution of asbestos-containing

products, and its response to the request for production that it had no predecessors

“doesn’t square with the corporate history” outlined in the Litigation Analysis. Further,

while CompuDyne produced its corporate representative Rock for a deposition and

provided his affidavit, he did not possess the information set forth in the Litigation

Analysis. The sought-after information was nowhere else provided, and there is no

living person who possesses knowledge of the corporate history as described in the

Litigation Analysis.
       {¶23} Appellees met their burden of demonstrating “good cause” to order the

production of this information and showed there was a need for this information, which

was relevant to appellees’ claims and was otherwise unavailable. The court did not

abuse its discretion in finding paragraphs 18(a) and (b) were not protected by the

work-product doctrine with regard to the factual information contained therein.

       {¶24} However, we note that a very limited portion of paragraph 18(b) does

contain Henry’s legal impressions and should be subject to redaction. Therefore, we

modify the trial court’s decision and instruct that paragraphs 18(a) and (b) are subject to

disclosure with the redaction of the following lines under paragraph 18(b): the last

sentence of the 1969 section, the last sentence of the 1984 section, the last sentence of the

2001 section, as well as the statement that begins with two asterisks that follows.

       {¶25} Judgment affirmed as modified.

       It is ordered that appellees recover of appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
KENNETH A. ROCCO, J., CONCUR
