[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Ctr. for Media & Democracy v. Yost, Slip Opinion No. 2024-Ohio-2786.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2024-OHIO-2786

THE STATE EX REL. CENTER FOR MEDIA AND DEMOCRACY ET AL.,

APPELLEES, v. OFFICE OF ATTY. GEN. YOST, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Ctr. for Media & Democracy v. Yost, Slip Opinion 

No. 2024-Ohio-2786.]

Final, appealable order—Provisional remedy—Court of appeals’ order denying 

protection order regarding discovery in public-records mandamus case 

meets provisional-remedy requirement and is appealable under R.C. 

2505.02(B)(4) because order determines the action and prevents a 

judgment and appealing party would not be able to obtain effective relief 

through appeal following final judgment—Motion to dismiss denied and 

oral argument ordered.

(No. 2023-0270—Submitted November 14, 2023—Decided July 25, 2024.)

APPEAL from the Court of Appeals for Franklin County, No. 20AP-554,

2023-Ohio-364.

__________________
SUPREME COURT OF OHIO

2

DEWINE, J., authored the opinion of the court, which KENNEDY, C.J., and 

FISCHER and DETERS, JJ., joined. BRUNNER, J., dissented, with an opinion joined 

by DONNELLY and STEWART, JJ.

DEWINE, J.

{¶ 1} This matter is before us on an appeal from a discovery order issued 

by the Tenth District Court of Appeals in a mandamus action. In this decision, we 

consider a motion to dismiss the appeal.

{¶ 2} The appeal arises out of a lawsuit that alleges that the Ohio attorney 

general has violated the Public Records Act by failing to produce certain 

documents. The attorney general has asserted that the documents in question do 

not constitute public records. The merits of this contention remain unresolved and 

are not before us.

{¶ 3} But in the proceeding below, the Tenth District Court of Appeals 

issued an order that allowed David Armiak and the Center for Media and 

Democracy (collectively, “Armiak”) to conduct broad discovery to “test” the 

attorney general’s contention that the documents at issue do not constitute public 

records. One problem—as the attorney general explains—is that the discovery 

order is so broad that it allows Armiak to obtain almost everything he would obtain 

if he ultimately prevails on the merits in his public-records case—and a great deal 

more. 

{¶ 4} The attorney general has appealed the discovery order to this court, 

asserting, among other things, that a qualified privilege prevents Armiak from 

taking his deposition and from engaging in other overly burdensome discovery. 

The attorney general asserts that separation-of-powers principles place limits on the 

judiciary in subjecting him to extremely burdensome discovery that interferes with 

the discharge of his constitutional obligations. Armiak has filed a motion to dismiss 

the appeal for lack of a final, appealable order.
January Term, 2024

3

{¶ 5} We do not address the merits of the attorney general’s challenge to 

the discovery orders at this juncture, but we do find that the attorney general is 

entitled to appeal the Tenth District’s order. We therefore deny Armiak’s motion 

to dismiss and sua sponte set this matter for oral argument on the merits under

S.Ct.Prac.R. 17.02(A).

I. BACKGROUND

{¶ 6} In March 2020, Armiak submitted a public-records request to the 

attorney general. The request sought “all records that pertain to the Republican 

Attorneys General Association [(‘RAGA’)], Rule of Law Defense Fund

[(‘RLDF’)], and the RAGA Winter Meeting held February 29 through March 2 [of 

2020] from the Office of Attorney General Dave Yost.” The attorney general 

declined to produce the requested records, arguing that documents responsive to 

the request did not document the functions of the attorney general’s office and thus 

did not meet the statutory definition of a public record. See R.C. 149.011(G)

(“‘Records’ includes any document, device, or item . . . which serves to document 

the organization, functions, policies, decisions, procedures, operations, or other

activities of the office.”).

{¶ 7} Armiak then filed a mandamus action in the Tenth District, requesting 

a writ to compel the attorney general to provide documents in response to his

public-records request. During the course of that action, Armiak deposed four 

members of the attorney general’s staff and served interrogatories and requests for 

production on the attorney general himself. The attorney general provided some 

documents to Armiak and submitted other documents to a court-appointed 

magistrate for in camera review. The attorney general also responded to the 

interrogatories, asserting objections as he believed appropriate. Ultimately, an 

impasse arose regarding the breadth of Armiak’s discovery requests. Armiak 

sought an order compelling additional responses to the interrogatories and 

document requests. Armiak also served the attorney general with a notice of 
SUPREME COURT OF OHIO

4

deposition. The attorney general sought a protective order to prevent Armiak from 

deposing him, pointing out that he “neither participated in nor has first-hand 

knowledge of the search for responsive records in this case.” In support of his 

request for a protective order, the attorney general cited a broad range of caselaw 

that had placed policy limits on the depositions of high-ranking government 

officials to avoid “the undue burden of intrusive discovery and compelled testimony 

that interrupts the day-to-day operations of government.”

{¶ 8} A Tenth District magistrate granted Armiak’s motion to compel 

responses to some of the interrogatories and document requests. The magistrate

found that Armiak was not limited to obtaining the “described records in the 

underlying public records request,” No. 20AP-554, ¶ 15 (10th Dist. Feb. 8, 2023), 

but could “pursu[e] information that will help determine whether the requested 

records are in fact public records,” id. at ¶ 70. Further, the magistrate found that 

Armiak was “entitled to reasonable discovery to test [the attorney general’s] claim 

that his relationship with RAGA and RLDF is a purely personal matter unrelated to 

the substantive work of his office.” Id. In doing so, however, the magistrate 

misconstrued the attorney general’s argument: the attorney general had not argued 

that his relationship with the RAGA and the RLDF was “personal,” but rather that 

the documents in question “were not records of the office because they do not

document the functions of the office.”

{¶ 9} The magistrate ultimately ordered the attorney general to answer

interrogatories that went beyond the scope of the records that Armiak sought to 

obtain. For example, the attorney general was ordered to identify any employee 

who assisted in the drafting of any document that “in any way” involved other 

states’ Republican attorneys general. He was ordered to identify RAGA and RLDF 

events that he or any member of his staff attended. And he was required to identify 

all court filings, agency submissions, and interactions with public officials for 

which RAGA or RLDF provided input.
January Term, 2024

5

{¶ 10} The magistrate also ordered the attorney general to produce a broad 

range of documents to Armiak, including documents that Armiak sought to obtain 

in the public-records action and other documents that Armiak would not have been 

able to obtain even if he were successful in the action. For example, the magistrate

required that the attorney general produce “all documents from all staff related to 

planning, attendance, preparation, and signature of letters, amicus briefs, and events 

attended or prepared in conjunction with other RAGA members.” Id. at ¶ 78. He 

was also required to conduct searches of personal email accounts of office staff. Id. 

at ¶ 77.

{¶ 11} The magistrate further ordered that the attorney general sit for a 

deposition, No. 20AP-554 at ¶ 87 (10th Dist. Feb. 8, 2023), despite the attorney 

general’s lack of involvement in public-records production. The magistrate posited 

that the attorney general’s testimony was necessary for the court to make the legal 

determination about what constituted a public record, stating that the attorney 

general was the “only person” who could explain the office’s “definition of what 

constituted responsive records.” Id. at ¶ 84. The magistrate also reasoned that the 

attorney general himself, “far more than his staff, has the pertinent information 

regarding the extent to which participation in RAGA and RLDF activities should 

be considered within the scope of his public duties.” Id. at ¶ 85. In issuing the 

discovery order, the magistrate did not place any restrictions on the scope or 

parameters of the deposition.

{¶ 12} A divided panel of the Tenth District denied the attorney general’s 

motion to set aside the magistrate’s order. In doing so, it criticized the attorney 

general for relying on the statutory definition of “public record,” 2023-Ohio-364, 

¶ 49 (10th Dist.), to support his claim that the magistrate’s order was impermissibly 

broad. The Tenth District reasoned that such an argument constituted an “attempt 

to cabin the definition of what is permissible discovery with public records law,”

id. at ¶ 50. Thus it rejected as an “artificial limitation,” id., the idea that the scope 
SUPREME COURT OF OHIO

6

of discovery should be proportionate to the public records sought to be obtained. 

But see Civ.R. 26(B)(1) (discovery must be “relevant” and “proportional to the 

needs of the case”).

{¶ 13} Judge Klatt dissented. He explained that under this court’s 

precedent, Armiak had failed to establish the “extraordinary circumstances” 

required to justify the deposition of a high-ranking government official. Id. at ¶ 53

(Klatt, J., dissenting). Such a deposition, in his view, would “significantly intrude[]

upon government business,” id. at ¶ 57, and was not justified in a case that presented 

the “straightforward legal question” of whether the sought-after documents 

constituted public records, id. at ¶ 55. As to the document and interrogatory 

requests, Judge Klatt wrote, “[T]he scope of the search required to respond to the 

discovery goes far beyond the scope of the public records request at issue here.” 

Id. at ¶ 59. Judge Klatt further explained that Armiak’s “discovery requests are 

designed to elicit information about which [Armiak] simply has an interest, rather 

than information that is likely to be relevant to the public records dispute at issue

here.” Id.

{¶ 14} The attorney general now appeals the Tenth District’s decision. 

Armiak has also filed a motion to dismiss the appeal for lack of subject-matter 

jurisdiction, which the attorney general opposes.

II. ANALYSIS

{¶ 15} Under the Ohio Constitution, this court has “appellate jurisdiction .

. . [i]n appeals from the courts of appeals as a matter of right in . . . [c]ases 

originating in the courts of appeals.” Ohio Const., art. IV, § 2(B)(2)(a)(i). Prior to 

1912, the Constitution allowed the General Assembly to control our jurisdiction. 

See former Ohio Const., art. IV, § 2 (1851) (providing that the Supreme Court shall 

have “such appellate jurisdiction as may be provided by law”). But since the 1912 

amendments to the Ohio Constitution, our jurisdiction is provided directly by the 
January Term, 2024

7

Constitution itself. See State v. Jones, 2024-Ohio-2719, ¶ 25-28 (Kennedy, C.J., 

concurring in judgment only).

{¶ 16} Thus, there can be no doubt that we have jurisdiction to review an 

appeal from the court of appeals in an original action. But the Constitution does 

not directly address the timing of when we are to exercise our appellate jurisdiction 

over a case originating in the court of appeals. So, the question is whether we 

review that order now or whether its resolution should await the end of all 

proceedings in the appellate court.

{¶ 17} Both Armiak and the attorney general point to a statute, R.C. 

2505.02(B)(4), as being determinative of whether we should immediately review 

this matter. Though the General Assembly lacks the authority to alter our 

constitutional jurisdiction, it may be appropriate as a prudential matter to look to 

the Revised Code for guidance as to the timing of when we exercise our jurisdiction. 

Compare State ex rel. Anderson v. Spence, 94 Ohio St. 252, 255 (1916) (“Although 

the jurisdiction of this court is conferred by the Constitution, yet the method of 

exercising it may be provided by law.”). And because both parties here invoke R.C. 

2505.02(B)(4), we turn to that provision.

{¶ 18} It provides that an order granting or denying a “provisional remedy”

may be immediately appealed if (1) it “determines the action” with respect to the 

provisional remedy and “prevents a judgment” and (2) the appealing party would 

not be able to obtain effective relief through appeal following a final judgment. 

R.C. 2505.02(B)(4)(a) and (b). Thus, the first question is whether the appealedfrom order grants or denies a provisional remedy.

{¶ 19} “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, suppression of evidence, a prima-facie showing 
SUPREME COURT OF OHIO

8

pursuant to section 2307.85 or 2307.86 of the Revised Code, a 

prima-facie showing pursuant to section 2307.92 of the Revised 

Code, or a finding made pursuant to division (A)(3) of section

2307.93 of the Revised Code.

R.C. 2505.02(A)(3).

{¶ 20} As we have stated before, “‘An ancillary proceeding is one that is 

attendant upon or aids another proceeding.’ ” State v. Muncie, 91 Ohio St.3d 440, 

448 (2001), quoting Bishop v. Dresser Industries, 134 Ohio App.3d 321, 324 (3d 

Dist. 1999). That means a “separate procedure[] tied to a main action, acting in 

furtherance of the main action” but having its own life. Community First Bank & 

Trust v. Dafoe, 2006-Ohio-1503, ¶ 26. Put even more simply, we have 

characterized a provisional remedy as “a remedy other than a claim for relief.” 

State ex rel. Butler Cty. Children Servs. Bd. v. Sage, 95 Ohio St.3d 23, 25 (2002).

{¶ 21} Here, the appealed-from order is ancillary to the underlying publicrecords action. And as the attorney general points out, it is similar to one of the 

listed examples of a provisional remedy—“discovery of privileged matter,” R.C. 

2505.02(A)(3). The attorney general’s argument is that separation-of-powers 

principles and public-policy reasons shield him from being forced to provide overly 

burdensome discovery—including an unnecessary deposition—that is far removed 

from the question whether certain documents constitute public records. The 

attorney general recognizes that the protection he seeks does not amount to a 

statutory or common-law privilege but argues that it is sufficiently similar to such 

a privilege as to place the proceeding within the definition of a provisional remedy. 

He correctly points out in this regard that the provisional-remedy definition 

explicitly provides that the listed examples are illustrative, not exclusive. The 

statute says “including, but not limited to,” R.C. 2505.02(A)(3). The word 

“including” necessarily means that a list is “exemplary” rather than “exhaustive.” 
January Term, 2024

9

Scalia & Garner, Reading Law: The Interpretation of Legal Texts 132-133 (2012), 

citing Garner’s Dictionary of Legal Usage (3d Ed. 2011).

{¶ 22} Our recent precedent supports this. In State ex rel. Thomas v. 

McGinty, 2020-Ohio-5452, we dealt with the question whether Marsy’s Law, Ohio 

Const., art. I, § 10a, allowed a victim the right to immediately appeal a discovery 

order. We explained that the right asserted by the victim did not implicate “the 

discovery of records that are protected by a statutory or common-law privilege.” 

McGinty at ¶ 45. Nonetheless, we concluded that the trial court’s discovery order 

constituted a provisional remedy because the constitutional protection afforded to 

the victim by Marsy’s Law was “akin to a privilege.” Id.

{¶ 23} Thus, there are two appropriate questions to consider in determining

whether we should review, at this juncture, the court of appeals’ judgment affirming 

the magistrate’s discovery order. The first is whether the order the attorney general 

appeals is akin to the examples listed in the statute. And the second is whether the 

order “determines the action” and “prevents a judgment” in favor of the attorney 

general with respect to the discovery dispute.

A. The Magistrate’s Order Is Akin to the Provisional Remedies Listed in 

R.C. 2505.02(A)(3)

{¶ 24} We need not resolve the merits of the attorney general’s assertion 

that separation-of-powers principles place constraints on overly burdensome 

discovery to determine whether the Tenth District’s order is appealable. “To 

impose such a requirement would force an appellate court ‘to decide the merits of 

an appeal in order to decide whether it has the power to hear and decide the merits 

of an appeal.’ ” Byrd v. U.S. Xpress, Inc., 2014-Ohio-5733, ¶ 12 (1st Dist.), quoting 

Bennett v. Martin, 2009-Ohio-6195, ¶ 35 (10th Dist.). Rather, to determine whether 

the order satisfies the provisional-remedy requirement for appealability, we need 

review only whether the attorney general has made a colorable claim that the order 
SUPREME COURT OF OHIO

10

directs him to disclose information that might be protected. See State v. Glenn, 

2021-Ohio-3369, ¶ 13.

{¶ 25} Extrapolating from the statutory examples of provisional remedies, 

the attorney general argues that this proceeding is analogous to privilege claims that 

we have found to be provisional remedies. The attorney general asserts that the 

discovery at issue here is “so broad and unjustified that it risks intruding upon the 

qualified privilege that inheres in the separation of powers—namely, the qualified 

privilege from being subjected to immensely burdensome discovery unless the 

ordered discovery strictly accords with law.” In this view, “[b]y virtue of the 

Constitution’s separation of powers, constitutional officers and offices . . . possess 

a qualified privilege against discovery that would unjustly interfere with their 

ability to discharge their constitutional roles.”

{¶ 26} Such a limitation finds support in our caselaw. We have held that 

only under “extraordinary circumstances,” when certain factors have been satisfied, 

may a high-ranking government official be deposed. See State ex rel. Summit Cty. 

Republican Party Executive Commt. v. Brunner, 2008-Ohio-1035, ¶ 3-4. Our 

decision in Brunner borrowed a four-factor test from a decision of the Vermont 

Supreme Court, Monti v. State, 151 Vt. 609 (1989). In that case, the Vermont high 

court allowed an immediate challenge to an order requiring the deposition of the 

state’s governor. In addressing the merits of the dispute, it explained that “[t]he 

federal courts have uniformly held that a highly-placed executive branch 

governmental official should not be called upon personally to give testimony by 

deposition, at least unless a clear showing is made that such a proceeding is 

essential to prevent prejudice or injustice to the party requesting it” and that “[t]he 

few states that have had occasion to reach this question have adopted this standard 

as well.” Monti at 611-612. It characterized the doctrine as not “related to the 

content of the testimony, for which an executive branch official might claim 

executive privilege, but rather a doctrine founded on notions of the public’s interest 
January Term, 2024

11

in limiting unnecessary demands on the time of highly-placed public officials.” Id.

at 612-613.

{¶ 27} The attorney general maintains that by subjecting “one of Ohio’s 

constitutional officers to exceptionally burdensome discovery,” the judiciary has 

interfered with protections “inherent in a system of separated powers, as such orders 

interfere with the executive offices’ and officers’ ability to discharge their duties.”

While not a statutory or common-law privilege, this claimed protection “is akin to 

a privilege,” McGinty, 2020-Ohio-5452, at ¶ 45.1 We find that the attorney general 

has made a colorable claim that the discovery order directs him to disclose 

information he deems to be protected and denies him a protective order. See Glenn, 

2021-Ohio-3369, ¶ 13. Thus, we find that the order in question meets the 

provisional-remedy requirement.

B. The Magistrate’s Order Satisfies R.C. 2505.02(B)(4)

{¶ 28} Having determined that the magistrate’s order meets the provisionalremedy requirement, it follows that it is appealable under R.C. 2505.02(B)(4). The 

order “determines the action” and “prevents a judgment” in favor of the attorney 

general with respect to the discovery dispute. See R.C. 2505.02(B)(4)(a). As we 

have stated, “‘Any order compelling the production of privileged or protected

1. The dissent hinges much of its argument on an assertion that “[t]he attorney general admits that 

he did not assert any privilege in the discovery proceeding below” (emphasis in original), dissenting 

opinion, ¶ 2. But under our caselaw, the attorney general need not assert a statutory or commonlaw privilege, merely a protection “akin to a privilege.” McGinty at ¶ 45. The attorney general 

recognized this, arguing that regardless of whether the claimed right “is a privilege or merely like a 

privilege, an order infringing that right is covered by the statutory definition of ‘provisional 

remedy.’” (Emphasis in original.) 

The dissent also accuses the attorney general of raising the separation-of-powers argument 

for the first time on appeal. While it’s true that the attorney general’s separation-of-powers 

argument was not distilled in so many words below, the Brunnertest itself is based on the separationof-powers doctrine. See Monti at 614, fn. 8. And the attorney general relied extensively on Brunner

below, arguing that a court cannot compel the deposition of a high-ranking executive official. Just 

because the attorney general now articulates his argument in different terms does not mean he failed 

to raise it below.
SUPREME COURT OF OHIO

12

materials certainly [determines the action under R.C. 2505.02(B)(4)(a)] because it 

would be impossible to later obtain a judgment denying the motion to compel 

disclosure if the party has already disclosed the materials.’ ” (Emphasis added.) In 

re Grand Jury Proceeding of Doe, 2016-Ohio-8001, ¶ 21, quoting Burnham v. 

Cleveland Clinic, 2016-Ohio-8000, ¶ 21.

{¶ 29} Nor would the attorney general be afforded a meaningful or effective 

remedy by an appeal following final judgment as to all proceedings in the action. 

The attorney general’s contention that the ordered discovery itself will interfere 

with his constitutional responsibilities is not an injury that can be repaired after the 

discovery has taken place. See McGinty, 2020-Ohio-5452, at ¶ 47. This case 

presents the proverbial bell that cannot be unrung. See Muncie, 91 Ohio St.3d at

451.

{¶ 30} Because the court of appeals’ order meets the requirements of

R.C. 2505.02(B)(4), this court will address the merits of the attorney general’s 

appeal.

III. CONCLUSION

{¶ 31} We deny Armiak’s motion to dismiss. We sua sponte order oral 

argument, pursuant to S.Ct.Prac.R. 17.02(A), the date of which will be established 

by subsequent entry.

Motion to dismiss 

denied.

_________________

BRUNNER, J., joined by DONNELLY and STEWART, JJ., dissenting.

{¶ 32} A bedrock principle of our appellate jurisdiction is that we review 

only orders that are final. See In re Adoption of Y.E.F., 2020-Ohio-6785, ¶ 40 

(DeWine., J., dissenting) (“The final-order requirement is a long-standing feature 

of appellate jurisdiction with its origins in the English common law.”). This court 

often expends considerable effort to ensure that our decisions do not foster 
January Term, 2024

13

piecemeal litigation, which is not only inefficient and costly for litigants, but also 

may lead to inconsistent outcomes, abuses of the system, and a resultant lack of 

confidence in the judiciary. See H.R. v. P.J.E., 2023-Ohio-4185, ¶ 15 (issuing 

sanctions and declaring counsel to be vexatious litigators for instituting numerous 

appeals of nonfinal orders).

{¶ 33} Yet today, the majority eagerly accepts appellant the Ohio attorney 

general’s request for this court to entertain an immediate appeal of an interlocutory 

discovery order that is balanced on a wobbly and unrecognized theory under which 

the attorney general is entitled to a qualified privilege against discovery based on 

the separation-of-powers doctrine. The attorney general admits that he did not 

assert any privilege in the discovery proceeding below. Generally, parties are not 

permitted to raise issues for the first time on appeal, see State ex rel. White v. Aveni, 

2024-Ohio-1614, ¶ 22, which is another bedrock principle that the majority has 

discarded in this appeal.

{¶ 34} The attorney general has invoked a theory of qualified privilege in 

order to get his foot in the door to this court. But his arguments on the merits are 

no more than run-of-the-mill defenses to discovery requests under Civ.R. 26(B) and 

case law regarding application of that rule. The majority’s extrapolating, 

characterizing, contorting, and speculating in trying to make cogent arguments on 

behalf of the attorney general on separation-of-powers grounds and a so-called 

qualified privilege is tiring just to read. There are two major problems with the 

majority’s doing this: (1) the attorney general did not assert a privilege in the lower 

court and (2) he does not assert that any of the information in the discovery sought 

from him is otherwise protected.

{¶ 35} The majority sweepingly concludes that the discovery order issued 

by a magistrate in the Tenth District Court of Appeals is so broad that it would 

allow appellees, David Armiak and the Center for Media and Democracy 

(collectively, “Armiak”), “to obtain almost everything [they] would obtain if [they] 
SUPREME COURT OF OHIO

14

ultimately prevail[ed] on the merits in [their] public-records case—and a great deal 

more.” Majority opinion, ¶ 3. This is hogwash. The magistrate’s order does not 

compel the disclosure of any protected or exempted information.

{¶ 36} The attorney general has already produced documents to the court of 

appeals for in camera inspection and has agreed to produce in the same manner 

responses to 8 of the 16 requests for production of documents. 2023-Ohio-364, ¶75 

(10th Dist.). The magistrate refused to compel responses to certain requests, id. at 

¶ 73, 79, reserved a decision on whether some documents must be produced, id. at 

¶ 75, and ordered the attorney general to conduct an email search to determine 

whether further production would be overly burdensome, id. at ¶ 77. These orders 

do not compel disclosure of anything and cannot be deemed to be final, appealable 

orders.

{¶ 37} The magistrate ordered the attorney general to respond to requests 

for documents related to the attorney general’s staff’s involvement in the “planning, 

attendance, preparation, and signature of letters, amicus briefs, and events attended 

or prepared in conjunction with other [Republican Attorneys General Association] 

members.” Id. at ¶ 78. Although this is more than Armiak requested in their publicrecords request, the attorney general does not explain how this information is 

protected or why it should be shielded from discovery in a manner that requires 

immediate review by this court. The discovery stage of litigation, by its nature, is 

designed to lead to the discovery of admissible evidence; but in and of itself, 

discoverable documents are not always required to be admissible on its own. See 

Civ.R. 26(B)(1) (“Information within this scope of discovery need not be 

admissible in evidence to be discoverable.”).

{¶ 38} The court of appeals denied the attorney general’s request for a 

protective order regarding the taking of his deposition. But again, requiring the 

attorney general to sit for a deposition does not compel the attorney general to 

disclose any protected information. The attorney general argues that these orders 
January Term, 2024

15

are burdensome or disproportionate, but that alone does not give rise to a privilege. 

This court established the test for whether a high-ranking government official may 

be deposed in State ex rel. Summit Cty. Republican Party Executive Commt. v. 

Brunner, 2008-Ohio-1035, which recognized the need for an extraordinarycircumstances standard, but not a privilege, id. at ¶ 3, 10.

{¶ 39} It is also concerning that the attorney general’s position has 

continued to evolve over the course of this action. First, his office told Armiak that 

the records they were requesting were “exempt from disclosure” and “not a record” 

of the attorney general’s office. See 2023-Ohio-364 at ¶ 3. Then his office took 

the position that “no such email, text, drafts, memo, minutes, or other 

correspondence records exist.” See id. at ¶ 62. The attorney general then produced 

some documents for in camera inspection and informed the court of appeals that 

although additional emails pertaining to the request existed, it was the position of 

the attorney general’s office that “these personal emails containing no publicrecords content are not responsive to the public records request and are not subject 

to an in camera review in a public records mandamus action.”

{¶ 40} But this entire case concerns whether those emails actually do 

contain public information. The magistrate concluded that “[b]y stating that no 

responsive documents exist because any documents that do exist are not records of 

his office, [the attorney general] evades any inquiry by [Armiak] or the court into 

the status of potentially responsive documents that do exist.” (Emphasis in 

original.) Id. at ¶ 85. If there is any separation-of-powers issue present in this case, 

it appears to be one wished for and created by the attorney general in attempting to 

invade what is “emphatically the province and duty of the judicial department,” 

Marbury v. Madison, 5 U.S. 137, 177 (1803). Even though the attorney general 

possesses the power to issue limited advisory opinions, see R.C. 109.12 through 

109.14, the attorney general may not decide what constitutes a public record or 

what is or is not subject to in camera inspection. Those are questions that may only 
SUPREME COURT OF OHIO

16

be decided by the judiciary, which is the governmental branch that says what the 

law is. See Marbury at 177.

{¶ 41} A separation-of-powers privilege against discovery is an emperor 

with no clothes. Moreover, the attorney general did not assert any privilege before 

the tribunal below. It is patently wrong and overtly political for this court to broadly 

conclude that the discovery order issued below is a final, appealable order under 

the provisional-remedy standard in R.C. 2505.02(B) pertaining to discovery orders 

and privileged materials. And to do so usurps legislative power.

{¶ 42} I therefore flatly disagree with the majority’s decision to consider 

the attorney general’s appeal under its stated rationale. I do, however, recognize 

that in extraordinary circumstances the denial of a request for a protective order 

may be a final, appealable order. But what the attorney general argues here is not 

one of those circumstances. The attorney general has failed to articulate any 

argument beyond that of the discovery order’s constituting a provisional remedy 

(i.e., discovery of privileged matter), and it is not for us to formulate the necessary 

arguments for parties so that one can win over another. See State v. Quarterman, 

2014-Ohio-4034, ¶ 19. The attorney general relies solely on a separation-of-powers 

privilege that does not exist and that was not raised in support of the motion for a 

protective order before the tribunal below. I therefore dissent and would dismiss 

the appeal because it is not from a final, appealable order.

_________________

The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, for 

appellees.

Dave Yost, Attorney General, Michael J. Hendershot, Chief Deputy 

Solicitor General, and Julie Pfeiffer and Ann Yackshaw, Assistant Attorneys 

General, for appellant.

Office of the Utah Attorney General, Melissa A. Holyoak, Utah Solicitor 

General, and Christopher A. Bates, Deputy Solicitor General, urging reversal for 
January Term, 2024

17

amici curiae the states of Utah, Alabama, Alaska, Arkansas, Florida, Georgia, 

Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, 

Nebraska, Oklahoma, South Carolina, Texas, and Virginia.

Marshall Forman & Schlein, L.L.C., Madeline J. Rettig, and John S. 

Marshall; and Louis A. Jacobs, urging affirmance for amici curiae League of 

Women Voters of Ohio, the Marshall Project, and Ohio NOW Education and Legal 

Fund.

_________________