Download This PaperThe Cat is Out of the Bag: Immediate Appeal of Interlocutory Orders to Disclose Work-Product Material Under Ohio Law
50 Pages Posted: 29 Apr 2020 Last revised: 4 May 2020
Date Written: April 4, 2020
Abstract
Under Ohio Revised Code 2505.02(B)(4), court orders to disclose work-product material should be immediately appealable in Ohio district courts. However, after two recent decisions in the Ohio Supreme Court, Burnham v. Cleveland Clinic, and Smith v. Chen, orders to compel attorney-client privileged materials are immediately appealable, but litigants must go farther to show-cause establishing that "there would be no effective remedy on appeal after final judgment" for an order to disclose work-product material to have appellate jurisdiction. The plurality in Burnham determined that since work-product material is not recognized in Ohio common law or by statute, unlike attorney-client privileged materials, litigants must go farther to make a showing case-by-case to establish "finality." However, the plurality determined that since the confidentiality of attorney-client privileged materials is destroyed upon disclosure, those orders should be immediately appealed. After these two decisions, lower courts are split on how, if, and when, orders to disclose work-product material are final and appealable because the confidentiality of work-product materials is also destroyed upon disclosure. Turning over work-product materials is essentially letting "the cat out of the bag," and can cause the other side of litigation to utilize the materials to their advantage with no immediate review of the court order.
The Court should overturn Smith v. Chen, and hold that orders to disclose work-product material are categorically appealable under the Ohio Revised Code, instead of using a case-by-case analysis. Complex or ambiguous procedural standards waste time and money of litigants and squander judicial resources with no appreciable benefit to litigants or the court system. A consistent and predictable standard of appeal when a court orders disclosure of work-product protected material needs to be established because an adverse ruling of no appellate jurisdiction can cause irreparable harm to a litigant’s case and can undermine the policy of discovery methods in Ohio and several other authorities.
This piece analyzes the history of the protection of materials prepared in anticipation of litigation in Ohio common law before Hickman v. Taylor. Additionally, l explain the recognition of the protection of work-product into Ohio’s common law after the codification of the doctrine into the Ohio Rules of Civil Procedure. Further, this piece discusses the appealability of court orders that compel disclosure of work-product materials before the Chen and Burnham decisions disrupted the law, which left the standard inconsistent and arbitrary. Also, I specifically address that the Ohio Supreme Court should solve the inconsistency by overturning Chen and correctly determine that Ohio law has currently and historically recognized the work-product doctrine as prominent protection in its common law. Lastly, I explain in this piece how the current standard under Chen offers no pathway for litigants to establish appellate jurisdiction and discuss the possible factors a litigant would have to satisfy to establish “finality” under the current standard.
Keywords: appellate jurisdiction, finality, work-product, appealability of discovery orders, collateral order doctrine, discovery, civil procedure, ohio civil procedure
JEL Classification: K40, K41
Suggested Citation: Suggested Citation