[Cite as Youngstown State Univ. v. Youngstown State Univ. Assn. of Classified Emps., 2013-Ohio-5862.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

YOUNGSTOWN STATE UNIVERSITY, ) 

et al., , ) 

 ) CASE NO. 13 MA 104 

 PETITIONERS-APPELLANTS, ) 

 ) OPINION

 - VS - ) AND

 ) JUDGMENT ENTRY

YOUNGSTOWN STATE UNIVERSITY ) 

ASSOCIATION OF CLASSIFIED ) 

EMPLOYEES, ) 

 ) 

 RESPONDENT-APPELLEE. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, 

 Case No. 13CV433. 

JUDGMENT: Appeal dismissed for Lack of a Final 

 Appealable Order. 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Timothy P. Cannon 

 Judge of the Eleventh District Court 

 Of Appeals, Sitting by Assignment. 

Hon. Cynthia Westcott Rice 

 Judge of the Eleventh District Court 

 Of Appeals, Sitting by Assignment. 

Dated: December 19, 2013
[Cite as Youngstown State Univ. v. Youngstown State Univ. Assn. of Classified Emps., 2013-Ohio-5862.]

APPEARANCES: 

For Petitioners-Appellants: Attorney George Crisci 

 55 Public Square, 4th Floor 

 Cleveland, Ohio 44113 

 (For Youngstown State University) 

 Attorney Anthony Donofrio 

 Deputy Law Director 

 City of Youngstown 

 26 South Phelps Street 

 Youngstown, Ohio 44503 

 (For City of Youngstown and 

 Jay Macejko) 

 Attorney William Blanchard 

 South Bridge West 

 755 Boardman Canfield Road 

 Building F, Suite 4 

 Youngstown, Ohio 44512 

 (For Jay Macejko) 

For Respondent-Appellee: Attorney Ira Mirkin 

 Attorney Charles Oldfield 

 100 Federal Plaza East 

 P.O. Box 849 

 Youngstown, Ohio 44503 
[Cite as Youngstown State Univ. v. Youngstown State Univ. Assn. of Classified Emps., 2013-Ohio-5862.]

PER CURIAM: 

{¶1} Appellants Youngstown State University and former City of Youngstown 

prosecutor Joseph Macejko have appealed a decision of the Mahoning County 

Common Pleas Court regarding subpoenas issued to YSU’s general counsel Holly 

Jacobs and the city’s former prosecutor by appellee Youngstown State University 

Association of Classified Employees in an arbitration action. The trial court refused 

to quash the subpoenas in their entirety but granted YSU’s request for a protective 

order with respect to any privileged, confidential, or otherwise protected information 

sought by the union during questioning of these witnesses at the arbitration hearing. 

Still, YSU and the former city prosecutor appealed. This court requested 

jurisdictional memoranda as to whether there existed a final appealable order. For 

the following reasons, this appeal is dismissed for lack of a final appealable order. 

STATEMENT OF THE CASE

{¶2} Ivan Maldonado, a member and president of the Union, was terminated 

by YSU in 2009 for allegedly making threats to other employees, misfeasance, 

malfeasance, nonfeasance, incompetence, inefficiency, and neglect of duty. He was 

charged criminally with misdemeanor menacing and later with felony and 

misdemeanor charges involving falsification. 

{¶3} The Union filed a grievance on behalf of Maldonado, which initiated 

arbitration proceedings under a collective bargaining agreement. The arbitration 

proceedings were stayed pending the resolution of the criminal charges. 

{¶4} In 2010, the Union filed a public records request to YSU seeking 

correspondence and documents about Maldonado that were exchanged between 

YSU and the city prosecutor’s office. When YSU refused to provide the documents, 

the Union filed a mandamus action in this court seeking to compel the production of 

the records. 

{¶5} In conducting discovery in the mandamus action, the Union delivered a 

subpoena duces tecum to the prosecutor’s office requesting all documents pertaining 

in any way to the misdemeanor prosecution and all documents exchanged between 

YSU and the city prosecutor’s office pertaining to Maldonado. Thereafter, the Union 
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filed a motion to compel in the mandamus action and the city filed a motion to quash 

the subpoena. This court ordered the city to present all documents for an in camera 

review. State ex rel. Youngstown State Univ. Assn. of Classified Employees v. 

Youngstown State Univ., 7th Dist. No. 10MA63 (J.E. Sept. 3, 2010). 

{¶6} This court then quashed the subpoena with respect to all documents 

that were not previously disclosed to the Union. State ex rel. Youngstown State Univ. 

Assn. of Classified Employees v. Youngstown State Univ., 7th Dist. No. 10MA63 

(J.E. Feb. 9, 2011). This court pointed out that the documents fell into three 

categories: emails between Attorney Jacobs and the city prosecutor, the prosecutor’s 

case file in the misdemeanor case, and the city prosecutor’s felony investigation file. 

Id. at 6. 

{¶7} It was noted that the city prosecutor’s office represented not only the 

city but acted to some degree as legal advisor to YSU’s police department and thus 

to a limited extent also represented YSU and that Attorney Jacobs, as general 

counsel for YSU, would also represent YSU’s police department. Id. at 8. It was 

further pointed out that the city prosecutor prosecutes in the name of the city and the 

state and that Attorney Jacobs, as general university counsel, is an Assistant 

Attorney General of Ohio. Id. at 10-11. 

{¶8} This court concluded that six categories of privilege and exemption 

applied to the documents sought that were not already disclosed: attorney-client 

privilege, work product, common interest privilege, trial preparation records, 

confidential law enforcement investigatory records, and confidential documents 

obtained through the Attorney General’s database. Id. at 6-15. 

{¶9} Also in conducting discovery in the mandamus action, Attorney Jacobs 

was deposed by the Union. After she refused to answer certain questions on 

grounds of attorney-client privilege or work product privilege, the Union filed a motion 

to compel. Based in large part on this court’s February 9, 2011 entry quashing the 

subpoena for documents issued to the city, this court overruled the Union’s motion to 

compel Attorney Jacobs regarding the questions she refused to answer in deposition. 

State ex rel. Youngstown State Univ. Assn. of Classified Employees v. Youngstown 
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State Univ., 7th Dist. No. 10MA63 (J.E. Mar. 15, 2011). This court reviewed the 

deposition transcript and determined that all of the objections related to privileged 

matters, including those related to the public records act. Id. at 4-5, citing to 16 

pages in the transcript containing objections. 

{¶10} This court asked for motions regarding final disposition of the 

mandamus action, and the Union then voluntarily dismissed its mandamus action 

presumably as the rulings essentially disposed of any arguments it would make in its 

public records request. 

{¶11} Maldonado was acquitted of all charges in both courts. Arbitration was 

then reactivated. The Union requested that a subpoena to appear at the arbitration 

hearing issue to Attorney Jacobs and the former city prosecutor. When the issue of 

quashing was raised to the arbitrator, he apparently voiced that such a matter should 

be brought before the trial court. 

{¶12} Thus, on February 19, 2013, YSU filed in the trial court a petition to 

quash or in the alternative a motion for a protective order. Specifically, YSU asked 

for an order quashing the subpoenas “to the extent such subpoena seeks production 

of privilege and confidential information.” In the alternative, YSU moved for a 

protective order, asking the court to protect the confidential and privileged information 

and prohibit the Union from obtaining information it has already twice sought and 

twice been denied. The former city prosecutor filed a similar motion briefly urging 

that his testimony would require the disclosure of privileged or protected matter and 

that the issue of such disclosure was already ruled upon by this appellate court and 

then adopting the reasons set forth in YSU’s petition. 

{¶13} YSU’s memorandum in support voiced concern that the Union will 

question Attorney Jacobs about her communications with the prosecutor and will 

seek to elicit testimony from the former city prosecutor that this appellate court 

already determined is protected. YSU stated that the subpoena should be quashed 

because an appellate court has already decided that the Union is not entitled to 

obtain the privileged and confidential information it seeks and because the 
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documents are protected by the attorney-client privilege, work product doctrine, and 

the common interest privilege. 

{¶14} The Union’s response claimed that it had no intention of seeking to 

circumvent the appellate decisions and will not seek to elicit testimony that was 

determined to be privileged. The Union stated that YSU was speculating as to 

whether privilege would arise and noted that even if it did ask an improper question, 

YSU could assert privilege at the time. The Union pointed to a non-privileged letter 

sent by the former city prosecutor to Maldonado’s defense counsel stating that if 

Maldonado pled to menacing and withdrew all of his grievances and appeals, he 

would receive a favorable sentencing recommendation, the felony investigation 

would be stopped, possible charges against his wife would be halted, and she would 

keep her job at YSU. The Union also noted its position that YSU previously agreed 

that the questions about collusion would be relevant to a claim for backpay. 

{¶15} YSU filed a reply, stating that it does not trust the Union’s claim that it 

will not seek to elicit privileged matter and noting that the Union refuses to provide 

details of what it will ask the attorneys. YSU stated that it envisioned that the Union 

will ask questions not precisely held improper by the appellate court, the questions 

will go unanswered based on privilege, and the Union will either try to convey to the 

arbitrator that YSU is hiding something or the Union will go to court to seek to compel 

answers. 

{¶16} As to the suggestion that YSU agreed to the relevance of collusion, 

YSU noted that they merely followed an order by the arbitrator to draft the details of 

the ruling concerning a stay of arbitration pending the criminal proceedings wherein 

the prior arbitrator agreed to stay arbitration but also stayed backpay unless the 

Union could prove collusion. YSU then stated that the allegations of collusion are not 

legally cognizable. 

{¶17} For the first time, YSU next claimed that Attorney Jacobs cannot be 

subpoenaed because it is improper to subpoena an attorney in her own case unless 

the Union proves there is no other means to obtain the information, the information is 

relevant and non-privileged, and the information is crucial to the case. YSU stated 
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that although special outside counsel was appointed by the Attorney General, 

Attorney Jacobs as YSU general counsel was active in all aspects of the case. 

{¶18} And, YSU now claimed that if a motion to quash was not granted, then 

the protective order prohibiting the disclosure of privileged and confidential 

information should contain a requirement that any questioning of counsel should 

occur in the court’s presence and outside the presence of the arbitrator. YSU wished 

the trial court to sit through the testimony and rule on privilege claims as they arose 

and then provide the arbitrator with a redacted transcript so he could not see all the 

objections, voicing that otherwise the arbitrator would improperly believe YSU was 

“hiding something.” 

{¶19} The Union’s surreply urged that a blanket prohibition is improper and 

that YSU is trying to short-circuit the process of questioning and objecting, insisting 

that it will abide by the appellate court rulings. The Union noted that the question of 

backpay and collusion are for an arbitrator in the first instance, not the trial court in a 

petition dealing with privilege. As to YSU’s other new argument regarding Attorney 

Jacobs as co-counsel, the Union noted that YSU presented her for deposition in the 

mandamus action without making this argument. The Union also stated that because 

she was the person who responded to the public records requests, she may be the 

only person who can authenticate the responses provided. 

{¶20} On May 22, 2013, the magistrate issued a decision. As to the new 

argument concerning Attorney Jacobs as co-counsel at arbitration, the magistrate 

stated that a review of the record fails to indicate that she is co-counsel of record and 

pointed out that YSU previously produced her for deposition without objection on this 

basis. 

{¶21} The magistrate stated that it could not be predicted what lines of inquiry 

will be involved in the questioning of the attorneys who were subpoenaed. The 

magistrate ruled that “to quash the subpoenas * * * in their entirety would be 

overreaching and may result in the exclusion of otherwise admissible evidence,” 

which would be unduly prejudicial and was unwarranted based upon the information 

presented. The magistrate continued: 
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{¶22} “Nevertheless, the prior Decisions of the Court of Appeals for the 

Seventh Appellate District shall be fully enforced by the Arbitrator. As such, the 

Motion of YSU for a Protective Order with respect to any privileged, confidential or 

otherwise protected information sought by counsel for [the Union] during his 

interrogation of these witnesses is sustained. The prior Orders of the Court of 

Appeals for the Seventh Appellate District shall be fully enforced and Attorneys 

Jacobs and Macejko are afforded the full protection of the those Orders during the 

course of their testimony. Attorneys Jacobs and Macejko are granted a Protective 

Order protecting them from any responsibility, whatsoever, to respond to questions 

which would require them to produce privileged, confidential or otherwise protected 

information as previously determined by the Court of Appeals for the Seventh 

Appellate District.” 

{¶23} YSU filed objections to the magistrate’s decision, and the former city 

prosecutor joined these objections. YSU complained that the magistrate never 

addressed whether the Union could raise a claim of collusion, noting that the 

arbitrator’s order limited the collusion issue to determining backpay if a grievance is 

sustained. YSU also complained that the magistrate failed to place the burden on 

the Union regarding the subpoena of co-counsel. YSU cited to a portion of the 

arbitrator’s hearing that was read for the magistrate wherein YSU’s appointed special 

counsel successfully argued to the arbitrator that Attorney Jacobs should not have to 

leave the room because she was part of his team. 

{¶24} YSU stated that the protective order is insufficient because it orders the 

arbitrator to enforce the protective order and it ambiguously articulated the scope of 

the protected information. YSU asked the trial court to grant the motion to quash or 

to grant a protective order that: prohibits any questions that would disclose protected 

information regardless of whether it was previously addressed by the appellate court; 

authorized the attorneys to sua sponte refuse to answer (without the need for 

objections) any question that would require the disclosure of protected matter; 

designate the magistrate to preside over the testimony to enforce the protective order 
-7-

outside of the presence of the arbitrator; and present the arbitrator with a videotape 

that excluded all questions seeking protected matter. 

{¶25} The Union responded that the claim that Attorney Jacobs could not be 

subpoenaed as co-counsel was not raised until its reply, and the cited portion of the 

arbitrator’s transcript only disclosed that she should be permitted to remain in the 

hearing during testimony, not that she was not subject to subpoena. The Union 

urged that the general propriety of a collusion claim is not properly before the trial 

court because it goes to the scope of the issues that can be raised at arbitration, 

which is set by the agreement and is to be initially interpreted by the arbitrator. The 

Union also argued that YSU requested a protective order to prohibit the Union from 

obtaining the protected information that it already tried unsuccessfully to get twice 

and that is exactly what the magistrate ordered. The Union concluded that YSU 

wanted the trial court to improperly interject itself into the arbitration proceedings. 

{¶26} On July 3, 2013, the trial court overruled the objections and reproduced 

the magistrate’s decision as its own judgment. YSU and the former city prosecutor 

filed a joint notice of appeal that same day. YSU filed a merit brief on July 18, 2013. 

The next day, this court granted 20 days to file jurisdictional memoranda as to 

whether the order is final and appealable. The Union filed its jurisdictional 

memorandum on August 6, urging that we should dismiss the appeal, and filed their 

merit brief soon thereafter. YSU filed a jurisdictional memorandum arguing that the 

order is final under divisions (B)(1), (B)(2), and (B)(4) of R.C. 2505.02, and filed its 

merit reply brief soon thereafter. The former prosecutor did not file a jurisdictional 

memorandum (or a merit brief in the appeal). 

NO FINAL APPEALABLE ORDER

{¶27} Pursuant to R.C. 2505.02(B)(1), an order is final if it affects a 

substantial right in an action that in effect determines the action and prevents a 

judgment. A substantial right is a right that the constitutions, a statute, the common 

law, or a rule of procedure entitle a person to enforce or protect. R.C. 2505.02(A)(1). 

For an order to determine the action and prevent a judgment for the party appealing, 

it must dispose of the whole merits of the cause or some separate and distinct branch 
-8-

thereof and leave nothing for the determination of the court. Hamilton Cty. Bd. of 

Mental Retardation & Developmental Disabilities v. Professionals Guild of Ohio, 46 

Ohio St.3d 147, 153 (1989) (order which vacated the election result did not determine 

the action or prevent a judgment where it also provided for a rerun election). 

{¶28} Next, R.C. 2505.02(B)(2) provides in pertinent part that an order is final 

if it affects a substantial right and is made in a special proceeding. A special 

proceeding is defined as an action or proceeding that is specially created by statute 

and that prior to 1853 was not denoted as an action at law or a suit in equity. R.C. 

2505.02(A)(2). An order affects a substantial right for the purposes of this division 

only if an immediate appeal is necessary to protect the right effectively as the 

appellants must demonstrate that in the absence of immediate review of the order 

they will be denied effective relief in the future. See Wilhelm-Kissinger v. Kissinger, 

129 Ohio St.3d 90, 2011-Ohio-2317, 950 N.E.2d 516, ¶ 7, 10-11 (order denying 

disqualification of counsel in a special proceeding does not affect a substantial right 

as the order may be revisited throughout and other avenues remain open). 

{¶29} Under R.C. 2505.02(B)(4), an order is final if it grants or denies a 

provisional remedy, if it determines the action with respect to and prevents judgment 

with respect to the provisional remedy, and if there would not be a meaningful or 

effective remedy by an appeal after final judgment as to the entire action. A 

provisional remedy is defined as a proceeding ancillary to an action, including, but 

not limited to, a proceeding for a preliminary injunction, attachment, discovery of 

privileged matter, or suppression of evidence. R.C. 2505.02(A)(3). Besides being 

attendant upon or in aid of another proceeding, in order to be final under this 

decision, an order to compel or an order denying protection must definitively decide 

the matter and there must be no further opportunity to petition the court. See State v. 

Muncie, 91 Ohio St.3d 440, 449-451, 746 N.E.2d 1092 (2001). 

{¶30} The final appealable order statute must be read in pari materia with the 

pertinent arbitration statutes, contained in Chapter 2711. Stewart v. Midwestern 

Indemn. Co., 45 Ohio St.3d 124, 126, 543 N.E.2d 1200 (1989). The statute granting 

the arbitrator subpoena power also provides that if a person so subpoenaed refuses 
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or neglects to obey such subpoena, then a petition can be filed in the local common 

pleas court and that court can compel the attendance of such person before the 

arbitrator or punish the person for contempt in the same manner provided for in the 

court. R.C. 2711.06. 

{¶31} An application to the common pleas court under R.C. 2711.01 through 

2711.15 shall be made and heard in the manner provided by law for the making and 

hearing of motions, except as otherwise provided in the sections. R.C. 2711.05. 

Unrelated to R.C. 2711.06, there are arbitration statutes which provide the right to 

appeal from certain orders concerning arbitration. See R.C. 2711.15 (“An appeal 

may be taken from an order confirming, modifying, correcting, or vacating an award 

made in an arbitration proceeding or from judgment entered upon an award.”). See 

also R.C. 2711.02(C)-(D) (dealing with a stay pending arbitration). 

{¶32} Reading the statutes in pari materia, it seems important to recognize 

that the petitioned court acts as it would in a regular case before it. This suggests 

that this case involving a protective order as to future testimony could be equated to 

those involving a provisional remedy. In those cases evaluating discovery orders or 

orders compelling testimony which do not actually order the release of privileged 

information, the appeal has been considered not final or premature or not ripe. See, 

e.g, Bell v. Mt. Sinai Med. Ctr., 67 Ohio St.3d 60, 65 (1993) (order directing even a 

non-party 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”); Dispatch Printing Co. v. Recovery Ltd. Partnership, 166 

Ohio App.3d 118, 2006-Ohio-1347, 849 N.E.2d 297 (10th Dist.) (discovery order did 

not provide for unfettered discovery coupled with the danger of being unable to 

unring the proverbial bell; rather, it contemplated protection as the issues arise in the 

future); State v. South, 5th Dist. No. 04CA38, 2004-Ohio-5073, ¶42-43 (finding that 

record was not sufficiently developed as questions must be asked in order for 

privilege to be invoked and then ruled upon). 

{¶33} Thus, where the order merely foreshadows future issues that may or 

may not arise and is not a blanket denial of protection as to a topic, the order is not 
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final. Merely because an order is burdensome or annoying does not mean that 

irreparable harm has been done or that a substantial right has been affected. See, 

e.g., Marks v. Morgan Stanley Dean Witter Commercial Fin. Servs., 8th Dist. No. 

88948, 2008-Ohio-1820, ¶ 13; RDSOR v. Know Cty. Bd. of Revision, 5th Dist. No. 

05CA01, 2005-Ohio-4173, ¶ 17-25, fn.1-2. 

{¶34} If the order here involves the provisional remedy prong, we find that 

the order is akin to an order for in camera review or a guidance order that 

contemplates further evolution of the record as to specific protected answers. The 

actual information sought to be elicited or protected has not been presented and thus 

no negative protective ruling has been issued. Guidance was provided with 

reference to this court’s prior ruling on protected information, and the protective order 

additionally encompassed “any privileged, confidential, or otherwise protected 

information” sought by the Union during interrogation. No cloak of secrecy has been 

lifted by the trial court’s order here. The same rationale plays a part in our parallel 

decision that the order does not affect any substantial right alleged in the petition. In 

divergence to much of the case law cited by appellants, the order here does not 

compel the disclosure of protected information. 

{¶35} The trial court’s order regarding the motion to quash the subpoena 

merely refused to quash it “in its entirety.” Plus, the witnesses alternatively asked for 

a protective order, and the court granted a protective order. That protective order 

granted what was asked for in the petition. A later filing may have sought court 

supervision of the testimony and then the playing of a redacted videotape for the 

arbitrator, but this was not originally sought in the petition which invoked the trial 

court’s jurisdiction. 

{¶36} (Likewise, the petition dealt with protected information, not the scope of 

arbitration or the Union’s assertion that collusion should be considered if the 

arbitrator reaches the issue of backpay. And, the petition did not raise the claim that 

the witness was acting as counsel in the arbitration, a matter where special outside 

counsel, whose was the only name listed as counsel on the petition, had been 

appointed.) 
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{¶37} Furthermore, we cannot say that the denial of such in-depth courtsupervision of questioning that is meant to take place before an arbitrator affects a 

party’s or a witness’s substantial right. We also do not agree that a party’s 

substantial right is affected merely because an arbitrator may end up hearing a 

witness assert a privilege. Nor do we agree that a substantial right is affected 

because the subpoenaing party could potentially bring the particular matters actually 

raised during testimony before the trial court for ruling under R.C. 2711.06. In fact, 

this is what the statute envisions as it is more suggestive of a witness refusing to 

answer and the subpoenaing party filing the petition in the trial court than it is of the 

preemptive order sought in this case. 

{¶38} This appeal is hereby dismissed for lack of a final appealable order as 

defined in R.C. 2505.02 read in pari materia with Chapter 2711. Costs taxed against 

appellants. 

{¶39} Final Order. Clerk to serve notice of this judgment on the parties or 

their counsel. 

Vukovich, J., concurs. 

Cannon, J., concurs. 

Westcott Rice, J., concurs.