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finding an order affecting substantial rights is "one which, if not immediately appealable, would foreclose appropriate relief in the future"
Summary of this case from O'Toole v. DoveOpinion
No. 92-559
Submitted April 20, 1993 —
Decided August 11, 1993.
APPEAL from the Court of Appeals for Cuyahoga County, No. 63061.
On March 31, 1989, plaintiff-appellee, James A. Bell, Administrator of the Estate of Vivian Bell, instituted an action against defendants, Mt. Sinai Medical Center, Dr. Terry King and Dr. Thomas Santoscoy, for medical malpractice arising out of the death of the decedent. Appellants, John V. Jackson II and Stephen J. Charms, were retained by PIE Mutual Insurance Company to provide legal representation to Dr. King and Dr. Santoscoy, respectively. Defendant Mt. Sinai Medical Center was represented by Leslie Spisak from the law firm of Reminger Reminger Co., L.P.A. On March 5, 1991, trial commenced in the Cuyahoga County Common Pleas Court. On March 19, 1991, the jury returned a verdict in favor of Drs. King and Santoscoy but was unable to reach a verdict with respect to the hospital. Judgment was thereafter entered on behalf of the physician defendants.
On November 18, 1991, a new trial commenced with respect to defendant Mt. Sinai Medical Center. On November 27, 1991, the jury returned a verdict in favor of appellee in the amount of $3,075,000.
On December 2, 1991, appellee filed a motion for prejudgment interest pursuant to R.C. 1343.03(C). On December 16, 1991, appellee served a subpoena duces tecum upon appellants Charms and Jackson, directing them to appear at a hearing before the common pleas court and to bring with them the following information:
"1. Any and all correspondence, memorandum [ sic] or any other documents reflecting liability analysis of PIE, both as to compensatory and punitive damages.
"2. Any and all documents reflecting reserves established, including any changes at any time, of the reserves.
"3. Any and all documents reflecting analysis of demands for settlement from any and all persons evaluating the above captioned case.
"4. Any and all documents reflecting monetary evaluation of any kind relative to the above captioned case.
"5. Any and all contracts or agreements between PIE and Jacobson, Maynard, Tuschman Kalur or between PIE and Reminger Reminger Co., L.P.A. or Mt. Sinai or any combination of these entities.
"6. Any and all memorandum [ sic], minutes, recordings, either written, audio or videotaped, of meetings, discussions, etc., regarding the above captioned case between members of PIE and/or members of Jacobson, Maynard, Tuschman Kalur Co., L.P.A., and/or Mt. Sinai Medical Center and/or Dr. Terry King and/or Dr. Thomas Santoscoy and/or Leslie Spisak and/or any other lawyers representing Mt. Sinai Medical Center and/or Dr. Scott Comp pertaining to valuation and/or settlement.
"7. Any and all documents which would reflect in any way, any agreement between Mt. Sinai Medical Center and Dr. Terry King and/or Dr. Santoscoy, their attorneys or insurance companies, with respect to this litigation, including, but not limited to, any agreements to cooperate, to provide experts, to share in any settlement or judgment, etc."
On December 18, 1991, appellants filed a joint motion to quash the subpoenas and for a protective order. On December 19, 1991, a hearing was held in the common pleas court on the motion for prejudgment interest. At the hearing, the court was informed by appellant Jackson that the documents which were the subject of the subpoena had not been brought to the proceeding. On January 7, 1992, the trial court granted the motion for a protective order filed by appellants to the extent that the subpoenaed records would not be released to appellee pending an in camera inspection and a determination that the records were not privileged. The documents were thereafter ordered to be submitted to the court by January 10, 1992.
On January 9, 1992, appellants appealed this determination to the Eighth District Court of Appeals. On January 27, 1992, the court of appeals issued a judgment entry which dismissed the appeal. On January 24, 1992, the trial court issued an order setting January 30, 1992 as the final hearing date on the motion for prejudgment interest. On January 30, 1992, the hearing on the motion for prejudgment interest was held. Neither appellant was in attendance. On February 5, 1992, the common pleas court issued to appellants an order to show cause why they should not be held in contempt for their defiance of the January 7, 1992 trial court order and their failure to appear at the January 30, 1992 hearing. On February 12, 1992, the hearing to show cause was held. Thereafter, the common pleas court issued an order finding appellants in contempt and committing them to the Cuyahoga County Jail until compliance with the earlier order was undertaken. A motion to stay the order was granted by the Eighth District Court of Appeals on February 12, 1992. On February 19, 1992, appellants appealed to this court the January 27, 1992 dismissal of their appeal by the court of appeals.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Charles Kampinski Co., L.P.A., and Charles Kampinski, for appellee.
Porter, Wright, Morris Arthur, Richard Markus, Jacobson, Maynard, Tuschman Kalur Co., L.P.A., Robert C. Maynard and Robert C. Seibel, for appellants.
The present controversy concerns the nature of the determination made by the trial court below directing appellants to submit the materials requested in discovery to an in camera inspection. Appellants contend that the decision of the trial court was a final appealable order subject to appellate court review pursuant to Section 3(B)( 2), Article IV of the Ohio Constitution. A "final appealable order" is defined in R.C. 2505.02 as follows:
"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial." (Emphasis added.)
Appellants correctly observe that an action for prejudgment interest pursuant to R.C. 1343.03(C) constitutes a special proceeding inasmuch as the right to obtain such relief is purely statutory in nature and was unavailable at common law. See Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213; Gen. Acc. Ins. Co. v. Ins. Co. of N.Am. (1989), 44 Ohio St.3d 17, 22, 540 N.E.2d 266, 271-272; In re Estate of Wyckoff (1957), 166 Ohio St. 354, 357, 2 O.O.2d 257, 259, 142 N.E.2d 660, 663. Moreover, protection of attorney-client confidences and, particularly, attorney work product involves a substantial right. See Nelson v. Toledo Oxygen Equip. Co. (1992), 63 Ohio St.3d 385, 387, 588 N.E.2d 789, 790.
The crucial question in the instant case concerns whether the decision of the trial court in this special proceeding affects a substantial right. An order which affects a substantial right has been perceived to be one which, if not immediately appealable, would foreclose appropriate relief in the future. See, generally, Union Camp Corp. v. Whitman (1978), 54 Ohio St.2d 159, 162, 8 O.O.3d 155, 157, 375 N.E.2d 417, 419-420; State v. Collins (1970), 24 Ohio St.2d 107, 110, 53 O.O.2d 302, 303-304, 265 N.E.2d 261, 263; Morris v. Invest. Life Ins. Co. (1966), 6 Ohio St.2d 185, 189, 35 O.O.2d 304, 306, 217 N.E.2d 202, 206; In re Estate of Wyckoff, supra, 166 Ohio St. at 359, 2 O.O.2d at 260, 142 N.E.2d at 664.
Appellants argue that the action of the trial court directing them to submit for an in camera inspection materials which they contend are privileged constitutes an "order that affects a substantial right." To prevail in this contention, appellants must demonstrate that in the absence of immediate review of the order they will be denied effective relief in the future. In support of their view that discovery determinations involving privileged materials constitute orders that affect a substantial right, appellants rely on the decisions of this court in Humphry v. Riverside Methodist Hosp. (1986), 22 Ohio St.3d 94, 22 OBR 129, 488 N.E.2d 877, and State v. Port Clinton Fisheries, Inc. (1984), 12 Ohio St.3d 114, 12 OBR 157, 465 N.E.2d 865. However, both of these cases are clearly distinguishable from the instant matter. Humphry involved a trial court order directing a party to disclose confidential medical records of nonparties to its adversary. Likewise, Port Clinton Fisheries involved a trial court order compelling the state to disclose the identity of a confidential government informant. In each case, the order being appealed required the disclosure of allegedly privileged information to an opposing party. In contrast, the order at issue herein merely requires the submission of the subpoenaed documents to the trial court for an in camera inspection to determine whether they should be disclosed to the opposing party. This is precisely the mechanism available to determine whether a claim of privilege in a discovery dispute is justified. In this regard, paragraph two of the syllabus in Peyko v. Frederick (1986), 25 Ohio St.3d 164, 25 OBR 207, 495 N.E.2d 918, provides:
"If the defense asserts the attorney-client privilege with regard to the contents of the `claims file,' the trial court shall determine by in camera inspection which portions of the file, if any, are so privileged. The plaintiff then shall be granted access to the non-privileged portions of the file."
In the present case, it would only be after this in camera review and a trial court order compelling disclosure that the substantial rights of appellants would be implicated. If the trial court determines that all of the requested information is privileged, any issues which may have been the subject of an appeal would be rendered moot. Conversely, if some documents are determined to be subject to disclosure, an appeal on narrowed issues would be available pursuant to Humphry and Port Clinton Fisheries. Such an appeal need not await "final judgment" in the prejudgment interest proceeding but merely the final determination of the rights of appellants with respect to the allegedly privileged materials.
The instant controversy presents circumstances not unlike those in In re Coastal States Petroleum, Inc. (1972), 32 Ohio St.2d 81, 61 O.O.2d 333, 290 N.E.2d 844. In Coastal States a unanimous court concluded that the refusal of the trial court to quash an investigatory subpoena issued by the Ohio Department of Commerce, Division of Securities, was not a final appealable order because relief could be afforded if an investigation ultimately ensued as a result of the administrative action. See, also, Cincinnati Gas Elec. Co. v. Pub. Util. Comm. of Ohio (1946), 146 Ohio St. 228, 232, 32 O.O. 206, 207, 65 N.E.2d 68, 69.
We are not unmindful of the holding of this court in Nelson v. Toledo Oxygen Equip. Co. (1992), 63 Ohio St.3d 385, 588 N.E.2d 789, that an order to compel the production of documents alleged to involve attorney work product was not subject to immediate appeal pursuant to R.C. 2505.02. Nelson is distinguishable from the case sub judice, however. First, the holding in Nelson concerned a discovery order allegedly affecting "a substantial right in an action which in effect determines the action and prevents a judgment * * *." Nelson therefore addressed the nature of such determinations in the context of the first clause of R.C. 2505.02. Determination of the action and prevention of a judgment are a condition precedent to finding that an action of a trial court is a final appealable order under this provision. See Roemisch v. Mut. of Omaha Ins. Co. (1974), 39 Ohio St.2d 119, 122, 68 O.O.2d 80, 81-82, 314 N.E.2d 386, 388; State v. Collins (1970), 24 Ohio St.2d 107, 110, 53 O.O.2d 302, 304, 265 N.E.2d 261, 263. In contrast, the discovery orders at issue in Humphry and Port Clinton Fisheries, supra, were deemed to be immediately appealable because the majority in each case, applying the test in Amato v. Gen. Motors Corp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452, concluded that they arose in the context of a special proceeding. Such orders were therefore governed by the succeeding clause of R.C. 2505.02, which lacks the conditional language employed with respect to common-law civil actions.
Second, Nelson involved a claim of privilege asserted by a party to the underlying action. In Humphry the interests at issue were the privacy rights of hospital patients, not parties to the action, arising from the physician-patient privilege. Port Clinton Fisheries involved the identity of a confidential informant. In the latter two cases, therefore, the rights of the persons involved would be irreparably harmed irrespective of whether the party opposing disclosure would ultimately prevail on the legal issue. See Nelson, supra, 63 Ohio St.3d at 389, 588 N.E.2d at 792.
Finally, under the facts presented in Nelson, the majority concluded that no irreparable harm would result from delaying the appeal of the discovery order until after final judgment. Id. at 388-389, 588 N.E.2d at 791-792. Obviously, this determination of irreparable harm ( i.e., whether an order affects a substantial right) depends on the facts and circumstances of an individual case. See Morris v. Invest. Life Ins. Co., supra, 6 Ohio St.2d at 187-188, 35 O.O.2d at 305, 217 N.E.2d at 205; State v. Collins, supra, 24 Ohio St.2d at 109-110, 53 O.O.2d at 303, 265 N.E.2d at 263.
Appellants further contend, however, that as nonparties they would lack standing to appeal a decision ordering the release of privileged materials. This argument is erroneous for two principal reasons. First, while their clients, the individual physicians, are no longer parties to the action by virtue of a jury verdict in their favor, the substantial rights at stake in the protection of attorney-client communications would confer standing upon appellants in the prejudgment interest proceeding. This stake in the proceeding would appear to provide sufficient basis for a motion to intervene in that proceeding pursuant to Civ.R. 24. See Women's Fed. Savings Bank v. Pappadakes (1988), 38 Ohio St.3d 143, 148-149, 527 N.E.2d 792, 796-797 (A.W. Sweeney, J., dissenting); Morris v. Invest. Life Ins. Co., supra, 6 Ohio St. 2 d at 189, 35 O.O.2d at 306, 217 N.E.2d at 206. Second, absent intervention, it certainly is reasonable to expect the interests of appellants to be adequately protected by the party opposing disclosure ( i.e., Mt. Sinai Medical Center). This was precisely the situation presented in Humphry, supra.
We therefore conclude that the action of a trial court directing a witness opposing a discovery request to submit the requested materials to an in camera review so that the court may determine their discoverable nature is not a final appealable order pursuant to R.C. 2505.02.
The judgment of the court of appeals is therefore affirmed and the cause is remanded to the trial court for further proceedings.
Judgment affirmed and cause remanded.
MOYER, C.J., WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs in judgment only.