Summary
explaining that whether a "privilege" exists under Civil Rule 26(B) is a discretionary decision "to be made by the trial court."
Summary of this case from Owens v. ACS, Hotels, LLCOpinion
No. 82-1465
Decided August 24, 1983.
Civil procedure — Discovery — Prohibition does not lie to prevent enforcement of court's order compelling production of accident report — Appellate procedure — Prohibition no substitute for appeal.
APPEAL from the Court of Appeals for Cuyahoga County.
The Greater Cleveland Regional Transit Authority, appellant, is the defendant in a civil action being tried in the Court of Common Pleas of Cuyahoga County before Judge Fred J. Guzzo, appellee. During discovery, appellee was presented with a motion for production of documents, requesting that appellant be compelled to produce an accident report which had been made by their operator immediately following the incident which gave rise to the action below. The motion was granted. Appellant refused to comply on grounds of privilege. This refusal was met with a motion for sanctions, which motion was granted on June 15, 1982. The imposition of sanctions was stayed in lieu of appellant's compliance with appellee's order to produce and, later, pending the resolution of the instant complaint in prohibition filed by appellant on July 23, 1982, in the Court of Appeals for Cuyahoga County.
Appellant's complaint sought a writ to prohibit Judge Guzzo from enforcing the pretrial orders requiring production of the accident report in the underlying action. Appellee filed a motion to dismiss appellant's complaint which was granted. Notice of appeal was filed on October 12, 1982. William Moton, plaintiff in the underlying cause, filed a motion to intervene in this court.
The cause is now before this court upon an appeal as of right.
Mr. Charles E. Mosley, Jr., Ms. Johanna M. Sfiscko and Ms. Laverne A. Nichols, for appellant.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Patrick Carroll, for appellee.
Komito, Nurenberg, Plevin, Jacobson, Heller McCarthy Co., L.P.A., Mr. Thomas Mester, Mr. Harlan M. Gordon, Mr. Daniel J. White and Mr. Richard C. Alkire, for intervening appellee.
Three requirements must be satisfied before a writ of prohibition will issue: (1) the court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy at law. State, ex el. Rose Hill Burial Park, v. Moser (1982), 1 Ohio St.3d 13, 14. Appellant submits that the accident report, the subject of this appeal, is privileged; and that appellee's orders violate R.C. 2317.02 (A) and Civ. R. 26 and were therefore unauthorized by law.
Civ. R. 26 (B)(3) allows "* * * discovery of documents * * * prepared in anticipation of litigation * * * only upon a showing of good cause therefor." The 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. Appellee argues that such determinations are reviewable only on appeal. State, ex rel. Staton, v. Common Pleas Court (1965), 5 Ohio St.2d 17 [34 O.O.2d 10].
Whether appellee made a correct or incorrect determination, however, is not the issue before this court. Prohibition is a preventive, not a corrective, remedy. State, ex rel. Stefanick, v. Municipal Court (1970), 21 Ohio St.2d 102, 104 [50 O.O.2d 265]. It may not be invoked to prohibit the trial court judge's exercise of discretion where that judge had jurisdiction over the subject matter and the person. State, ex rel. Staton, v. Common Pleas Court, supra, at 22. It is undisputed that appellee had jurisdiction to hear the case and discretion to rule on matters concerning discovery. Appellant may seek review of appellee's discovery rulings on appeal.
Appellee's orders were not unauthorized by law. Appellant also has an adequate remedy at law by way of appeal. Prohibition cannot be used as a substitute for appeal. State, ex rel. Crebs, v. Court of Common Pleas (1974), 38 Ohio St.2d 51, 52 [67 O.O.2d 61]. The judgment of the court of appeals dismissing appellant's complaint is therefore affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.