[Cite as Ohio Dept. of Transp. v. Bluescope Bldgs N. Am., Inc., 2016-Ohio-576.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO, DEPARTMENT OF 

TRANSPORTATION 

 Plaintiff-Appellant 

-vsBLUESCOPE BUILDINGS NORTH 

AMERICA, INC. FDBA BUTLER 

MANUFACTURING CO. 

 Defendant-Appellee 

JUDGES: 

: Hon. Sheila G. Farmer, P.J. 

: Hon. W. Scott Gwin, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. 2015 AP 06 0027 

: 

: 

: O P I N I O N 

CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County 

Court of Common Pleas, Case No. 2014 

CT 05 0320 

JUDGMENT: Dismissed 

DATE OF JUDGMENT ENTRY: February 17, 2016 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

MICHAEL DEWINE JOHN J. KULEWICZ 

Ohio Attorney General Vorys, Sater, Seymour & Pease, LLP 

WILLIAM C. BECKER 52 East Gay Street 

CRAIG BARCLAY Box 1008 

RICHARD J. SILK, JR. Columbus, OH 43216 

Assistant Attorneys General 

150 East Gay Street DAVID K. SCHAFFNER 

Columbus, OH 43215 Schaffner Law Offices 

 132 Fair Avenue N.W. 

 New Philadelphia, OH 44663 
[Cite as Ohio Dept. of Transp. v. Bluescope Bldgs N. Am., Inc., 2016-Ohio-576.]

Gwin, J. 

{¶1} Appellant appeals the May 15, 2015 judgment entry of the Tuscarawas 

County Court of Common Pleas granting appellee’s motion to compel and ordering 

appellant to: supplement its answers and responses to the first set of interrogatories and 

request for production of documents; and submit a privilege log as to any materials 

appellant claims are privileged and not relevant to appellant’s claims. 

Facts & Procedural History

{¶2} In a previous action, appellant, the State of Ohio, Department of 

Transportation (“ODOT”) filed a complaint against appellee Bluescope Buildings North 

America, Inc. f/d/b/a Butler Manufacturing Company (“Butler”) for breach of express and 

implied product liability warranties and negligence. Prior to trial, ODOT dismissed, 

without prejudice, its express warranty and negligence claims. The jury found in favor of 

ODOT on its remaining implied warranty claim and awarded ODOT damages of $2.14 

million dollars. 

{¶3} Subsequently, ODOT filed the instant case on May 23, 2014, a complaint 

against Butler for spoliation of evidence, fraudulent inducement, and negligent 

misrepresentation with a request for punitive damages. ODOT alleges Butler altered the 

express warranty issued to ODOT in the previous litigation. Specifically, that Butler 

removed language in the warranty by whiting out the phrase “no limits of liability” and that 

Butler directed its expert witness to materially change his opinion. 

{¶4} On March 2, 2015, Butler filed a motion to compel discovery, seeking an 

order from the trial court compelling ODOT to provide full responses to Butler’s first set of 

interrogatories and request for production of documents. ODOT filed a memorandum in 
Tuscarawas County, Case No. 2015 AP 0027 3 

opposition to the motion to compel, arguing the motion should be denied based upon the 

attorney-client privilege and the work-product privilege. 

{¶5} On May 15, 2015, the trial court issued a judgment entry finding ODOT’s 

answers and responses to Butler’s first set of interrogatories legally deficient and not 

protected by attorney-client or work-product privilege. The trial court granted the motion 

to compel and ordered ODOT to: supplement its answers and responses to Butler’s first 

set of interrogatories and request for production of documents in accordance with the trial 

court’s findings, accompanied by a privilege log as to any materials that are privileged 

and not relevant to the claims in this action. 

{¶6} In August of 2015, ODOT filed a motion to amend the complaint to delete 

the allegation in the complaint that ODOT dismissed its express warranty claim in the 

previous case based upon the altered language in the warranty. ODOT also filed a motion 

to vacate the trial court’s May 15th judgment entry based upon the amendment of the 

complaint. The trial court granted ODOT’s motion to amend complaint, but denied 

ODOT’s motion to vacate the May 15th judgment entry. 

{¶7} ODOT appeals the trial court’s May 15, 2015 judgment entry and assigns 

the following as error: 

{¶8} “I. THE TRIAL COURT INCORRECTLY DETERMINED THAT APPELLANT 

WAIVED THE ATTORNEY-CLIENT PRIVILEGE. 

{¶9} “II. THE TRIAL COURT INCORRECTLY DETERMINED THAT 

APPELLANT WAIVED THE WORK-PRODUCT PRIVILEGE. 
Tuscarawas County, Case No. 2015 AP 0027 4 

{¶10} “III. THE TRIAL COURT ERRED IN FINDING THAT THE STATE WAIVED 

THE ATTORNEY-CLIENT PRIVILEGE AND WORK-PRODUCT PRIVILEGES BY 

FAILING TO PROVIDE A PRIVILEGE LOG.” 

Final Appealable Order 

{¶11} Prior to addressing the merits of ODOT’s assignments of error, we must first 

determine whether the order under review is final and appealable. 

{¶12} The Ohio Constitution grants courts of appeals jurisdiction “to review and 

affirm, modify, or reverse judgments or final orders.” Article IV, Section 3(B)(2). 

{¶13} A proceeding for “discovery of privileged matter” is a “provisional remedy” 

within the meaning of R.C. 2505.02(A)(3). Smith v. Chen, 142 Ohio St.3d 411, 2015-

Ohio-1480, 31 N.E.3d 633. An order granting or denying a provisional remedy is final 

and appealable only if it has the effect of “determining the action with respect to the 

provisional remedy and preventing a judgment in the action in favor of the appealing party 

with respect to the provisional remedy” and “the appealing party would not be afforded a 

meaningful or effective remedy by an appeal following final judgment as to all 

proceedings, issues, claims, and parties in the action.” Id.; R.C. 2505.02(B)(4). The 

burden “falls on the party who knocks on the courthouse doors asking for interlocutory 

relief.” Id. 

{¶14} As specifically noted by the Ohio Supreme Court, “an order must meet the 

requirements in both subsections of the provisional-remedy section of the definition of 

final, appealable order in order to maintain an appeal.” Id. If the party seeking to appeal 

fails to establish why an immediate appeal is necessary, the court must presume an 

appeal in the ordinary course would be meaningful and effective. Id. However, “an order 
Tuscarawas County, Case No. 2015 AP 0027 5 

compelling disclosure of privileged material that would truly render a post judgment 

appeal meaningless or ineffective may still be considered on an immediate appeal.” Id.

{¶15} In this case, appellant argues there is a final appealable order under R.C. 

2505.02(A)(3) and (B)(4)(b) because it requires the discovery of privileged matter, and 

thereby grants a provisional remedy for which there would be no meaningful effective 

remedy on subsequent appeal. Appellant contends an immediate appeal is necessary 

because the trial court’s judgment entry goes well-beyond the production of documents 

and response to interrogatories and argues the discovery efforts are all about taking the 

depositions of the trial team in the previous litigation. Appellant further argues an 

immediate appeal is necessary because the trial court’s entry determines waiver of 

privilege as to the entire case, so appellant is forced to provide all attorney-client 

communications and work-product in writing and orally, with no meaningful remedy after 

final judgment. We disagree with appellant. 

{¶16} Despite appellant’s contention, the trial court’s judgment entry does not go 

beyond the production of documents and responses to interrogatories. The trial court 

ruled only on a motion to compel regarding appellee’s first set of interrogatories and 

request for production of documents. There is no determination of waiver of privilege as 

to the entire case and there is nothing in the judgment entry requiring appellant to provide 

all attorney-client communications and work-product in writing and orally. Rather, the trial 

court ordered appellant to supplement its responses to the interrogatories and submit a 

privilege log of documents, communications, or information it claims are privileged. 

Further, the trial court did not actually order the release of the documents. Rather, the 

trial court ordered appellant to submit a privilege log with a description of the nature of 
Tuscarawas County, Case No. 2015 AP 0027 6 

the documents, communications, or things not produced to the trial court for review. The 

trial court can then hold an in-camera inspection with regards to the documents or 

communications at issue. 

{¶17} With regards to appellant’s argument as to depositions, they are not at issue 

in this motion to compel, as the motion deals only with responses to interrogatories and 

production of documents. The trial court has not been presented with or ruled on the 

testimonial issue. Further, the record is not sufficiently developed to determine whether 

any deposition would result in the disclosure of privileged materials. See Autumn Health 

Care of Zanesville, LLC v. DeWine, 10th Dist. Franklin No. 14AP-593, 2015-Ohio-2655. 

{¶18} Based on the foregoing, we find appellant failed to satisfy the requirement 

in R.C. 2505.02(B)(4)(b) as to why an immediate appeal is necessary in this case and we 

must presume an appeal in the ordinary course would be meaningful and effective. 

Accordingly, we are without jurisdiction to address the assignments of error and, 

consequently, the above-captioned appeal is dismissed. 

By Gwin, J., 

Farmer, P.J., and 

Wise, J., concur