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

re Grand Jury Proceeding of John Doe, Slip Opinion No. 2016-Ohio-8001.] 

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. 2016-OHIO-8001

IN RE GRAND JURY PROCEEDING OF JOHN DOE. 

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

may be cited as In re Grand Jury Proceeding of John Doe, Slip Opinion No. 

2016-Ohio-8001.] 

Final, appealable order—Grand jury subpoena ordering production of 

documents—Privilege—Order denying motion to quash grand jury 

subpoena and ordering party to testify or produce documents was final and 

appealable—Judgment reversed and cause remanded. 

(Nos. 2015-1181 and 2015-1182—Submitted February 24, 2016—Decided 

December 7, 2016.) 

APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga County, 

No. 102977. 

_________________ 

 
SUPREME COURT OF OHIO

2

SYLLABUS OF THE COURT

1. An order denying a motion to quash a grand jury subpoena and ordering a party 

to testify or produce documents is an order granting or denying a provisional 

remedy within the meaning of R.C. 2505.02(A)(3). 

2. An order enforcing a grand jury subpoena and ordering the production of 

allegedly privileged information is a final order pursuant to R.C. 

2505.02(B)(4). 

_________________ 

LANZINGER, J. 

{¶ 1} In this case, we are asked to determine whether an order denying a 

motion to quash a grand jury subpoena and ordering a party to testify or produce 

documents is a final order that may be appealed. We hold that it is. 

I. Case Background 

{¶ 2} During the course of grand jury proceedings, the state of Ohio1 issued 

eight grand jury subpoenas to individuals associated with appellants, an Ohio 

limited partnership and the president of its general partner.2 Appellants moved to 

quash the subpoenas, which sought documents and testimony, arguing that they 

required appellants and their former attorneys to disclose information protected 

variously by the attorney-client privilege, the attorney work-product doctrine, and 

the common-interest doctrine. The trial court issued an entry denying the motions, 

finding that the material sought was no longer or never had been privileged. 

{¶ 3} Appellants appealed to the Eighth District Court of Appeals, which 

sua sponte ordered appellants to show cause why their appeal should not be 

dismissed for lack of a final order. After the parties briefed the issue, the court of 

appeals held that the trial court’s journal entry did not constitute a final order, 

 

1. Though self-identified as “appellee,” the state supports appellants’ positions. 

2. The documents in this case have been filed under seal. We accordingly refrain from identifying 

appellants. 
January Term, 2016 

3

reasoning that grand jury proceedings are not “actions” under R.C. 2505.02(A)(3) 

and that an order requiring production of privileged information in response to a 

grand jury subpoena is not a provisional remedy subject to appeal under R.C. 

2505.02(B)(4). The Eighth District certified a conflict between its decision and 

those of the Fourth District Court of Appeals in In re Grand Jury Subpoena Duces 

Tecum Directed to the Keeper of Records of My Sister’s Place, 4th Dist. Athens 

No. 01CA55, 2002-Ohio-5600, and the Tenth District Court of Appeals in State v. 

Boschulte, 10th Dist. Franklin No. 02AP-1053, 2003-Ohio-1276. 

{¶ 4} We accepted the conflict certified to us by the Eighth District Court 

of Appeals: “Whether an order denying a motion to quash a grand jury subpoena 

and ordering a party to testify and/or produce documents is an order granting or 

denying a provisional remedy within the meaning of R.C. 2505.02(A)(3)?” 143 

Ohio St.3d 1477, 2015-Ohio-3958, 38 N.E.3d 900. We also accepted jurisdiction 

over appellants’ two propositions of law: 

1. An order enforcing a grand jury subpoena to produce privileged 

information is a final, appealable order pursuant to R.C. 

2505.02(B)(4). 

2. An order enforcing a grand jury subpoena to produce privileged 

information is a final, appealable order pursuant to R.C. 

2505.02(B)(1). 

Id. Upon accepting both the conflict and the jurisdictional appeal, we consolidated 

the two cases. Id. 

II. Analysis 

{¶ 5} We note at the outset of our analysis that the issues present in this case 

are related to, yet distinct from, the issues present in Burnham v. Cleveland Clinic, 

___ Ohio St.3d ___, 2016-Ohio-8000, __ N.E.3d __. In Burnham, we were 
SUPREME COURT OF OHIO

4

presented the question of whether an order compelling the production of materials 

alleged to be protected by the attorney-client privilege is a final, appealable order 

under R.C. 2505.02(B)(4). Id. at ¶ 2. In this case, we also address the appealability 

of orders compelling production of documents, but we do so in the unique context 

of grand jury proceedings. 

{¶ 6} Appellants argue that the appellate court improperly used a definition 

of the word “action” from R.C. 2307.01 to rule that an order denying a motion to 

quash a grand jury subpoena and commanding a party to reveal privileged 

information is not an order denying a provisional remedy under R.C. 

2505.02(B)(4). The state agrees with appellants that a motion to quash a subpoena 

is a final order. 

Which Statutes Apply?

{¶ 7} The statute that discusses final orders is R.C. 2505.02. It begins by 

defining “substantial right,” “special proceeding,” and “provisional remedy.” R.C. 

2505.02(A)(3) defines a “provisional remedy” 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 

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. 

(Emphasis added.) 

{¶ 8} Division (B) then sets forth seven situations in which an order is a 

final order that may be appealed, one of which is 
January Term, 2016 

5

(4) An order that grants or denies a provisional remedy and 

to which both of the following apply: 

(a) The order in effect determines the action with respect to 

the provisional remedy and prevents a judgment in the action in 

favor of the appealing party with respect to the provisional remedy. 

(b) 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. 

R.C. 2505.02(B)(4). 

How Have Appellate Courts Interpreted Motions to Quash Grand Jury Subpoenas? 

{¶ 9} In this case, the Eighth District Court of Appeals determined that 

“action,” undefined in R.C. 2505.02, was critical to that statute’s meaning. The 

court turned to the definition of “action” found in R.C. 2307.01, which provides, 

“An action is an ordinary proceeding in a court of justice, involving process, 

pleadings, and ending in a judgment or decree, by which a party prosecutes another 

for the redress of a legal wrong, enforcement of a right, or the punishment of a 

public offense.” 

{¶ 10} The court reasoned that because grand jury proceedings are 

investigatory proceedings from which no judgment or decree results, grand jury 

proceedings are not actions that can be prosecuted to a judgment. As a result, the 

court of appeals held that a ruling on a motion to quash a grand jury subpoena does 

not grant or deny a provisional remedy pursuant to R.C. 2505.02(B)(4). In so 

concluding, the Eighth District remarked, “[W]e are troubled that a trial court ruling 

concerning potentially privileged information is not subject to immediate appellate 

review.” The court continued, however, “[T]here are other means by which the 

question of privilege can be raised and determined, subject to appellate review,” 

without specifying what those means might be. 
SUPREME COURT OF OHIO

6

{¶ 11} The first of two cases certified as in conflict with the Eighth District 

is In re Grand Jury Subpoena Duces Tecum Directed to the Keeper of Records of 

My Sister’s Place, 4th Dist. Athens No. 01CA55, 2002-Ohio-5600. In that case, 

the Fourth District Court of Appeals took a different approach in defining what a 

ruling on a motion to quash a grand jury subpoena is, reasoning, “Grand juries are 

a province strictly for criminal proceedings and a motion to quash a grand jury 

subpoena is an ancillary action to the grand jury proceedings.” (Emphasis added.) 

Id. at ¶ 9. In reaffirming a previous entry that characterized an order granting a 

motion to quash a grand jury subpoena as a final order under R.C. 2505.02(B)(4), 

the Fourth District noted that it had previously stated, “[A] motion to quash a grand 

jury subpoena was a provisional remedy because it involved a proceeding that is 

ancillary to, i.e., attendant upon or aids, the grand jury.” Id. at ¶ 12. Thus, implicit 

in the Fourth District’s decision was a conclusion that a grand jury proceeding was 

an action within the meaning of “provisional remedy” under R.C. 2505.02(A)(3). 

{¶ 12} The second conflicting decision is State v. Boschulte, 10th Dist. 

Franklin No. 02AP-1053, 2003-Ohio-1276. The Tenth District Court of Appeals 

relied upon the Fourth District’s analysis in deciding that “an order seeking to 

compel the production of documents pursuant to a grand jury subpoena is a 

provisional remedy because it involves a proceeding that is ancillary to, i.e., 

attendant upon or aids the grand jury.” Id. at ¶ 12. In so holding, the Tenth District 

explained that an order compelling the production of documents pursuant to a grand 

jury subpoena satisfies both R.C. 2505.02(B)(4)(a) and (b) because the order 

“determine[s] the action with respect to the provisional remedy and prevent[s] a 

judgment in favor of appellant with respect to the provisional remedy,” and the 

appellant “would not have a meaningful or effective remedy by appealing the 

decision following the final judgment in the action because appellant would have 

already produced the disputed original documents.” Boschulte at ¶ 13. The Tenth 

District accordingly held that a final order exists in such a situation. Id. 
January Term, 2016 

7

Is the Grand Jury Proceeding an Action for Purposes of R.C. 2505.02?

{¶ 13} The ultimate question before us is whether a ruling granting or 

denying a motion to quash a grand jury subpoena is a final order. 

{¶ 14} But because R.C. 2505.02(A)(3) specifies that a provisional remedy 

is “a proceeding ancillary to an action” and a motion to quash grand jury subpoenas 

is ancillary to the grand jury proceedings, we must determine whether a grand jury 

proceeding constitutes an action—a question we have not previously decided. 

{¶ 15} We have explained that an action is distinct from a special 

proceeding: 

“[W]e suppose that any ordinary proceedings in a court of justice, 

by which a party prosecutes another for the enforcement or 

protection of a right, the redress or prevention of a wrong, or the 

punishment of a public offense, involving the process and pleadings, 

and ending in a judgment, is an action, while every proceeding other 

than an action, where a remedy is sought by an original application 

to a court for a judgment or an order, is a special proceeding.” 

(Brackets sic.) Bernbaum v. Silverstein, 62 Ohio St.2d 445, 446-447, 406 N.E.2d 

532 (1980), quoting Missionary Society v. Ely, 56 Ohio St. 405, 407, 47 N.E. 537 

(1897). We noted the dichotomy between actions and special proceedings in 

Polikoff v. Adam, 67 Ohio St.3d 100, 616 N.E.2d 213 (1993): “Orders that are 

entered in actions that were recognized at common law or in equity and were not 

specially created by statute are not orders entered in special proceedings pursuant 

to R.C. 2505.02.” Id. at syllabus. Later, we applied the reasoning from Polikoff to 

the context of grand jury proceedings in holding that “[g]rand jury proceedings, 

having existed at common law, are not ‘special proceedings,’ notwithstanding the 

fact that they have been codified.” In re Grand Jury, 76 Ohio St.3d 236, 238, 667 
SUPREME COURT OF OHIO

8

N.E.2d 363 (1996), citing State ex rel. Doerfler v. Price, 101 Ohio St. 50, 54, 128 

N.E. 173 (1920). 

{¶ 16} Thus, we have clearly stated that grand jury proceedings are not 

special proceedings. This fact forecloses any reliance by appellants on R.C. 

2505.02 (B)(2), which states that “[a]n order that affects a substantial right made in 

a special proceeding” is a final, appealable order. The implication of Bernbaum 

and Polikoff is that because they are not special proceedings, grand jury proceedings 

must be actions. While they do not fit under the definition of “action” set forth in 

R.C. 2307.01 and used by the Eighth District, we agree with appellants that the 

definition of “action” as set forth in our jurisprudence comports with a conclusion 

that grand jury proceedings are actions for the purpose of determining whether a 

final, appealable order exists under R.C. 2505.02. 

{¶ 17} R.C. Chapter 2307 specifically addresses civil actions, rather than 

criminal or grand jury proceedings. We accordingly do not read R.C. 2307.01 as 

setting forth the authoritative definition of “action” in the context of this case. 

Instead, the definition supplied in Bernbaum is of more use. In that case, we 

established that “any ordinary proceedings in a court of justice, by which a party 

prosecutes another for the enforcement or protection of a right, the redress or 

prevention of a wrong, or the punishment of a public offense, involving the process 

and pleadings, and ending in a judgment, is an action * * *.” (Emphasis added.) 

Bernbaum at 446. Grand jury proceedings are ordinary proceedings conducted in 

courts of justice. During those proceedings, the state conducts a type of preliminary 

prosecution seeking to redress a wrong against the public—a crime—and to punish 

the offender. The proceedings involve the regular process of our criminal 

procedure and end in the grand jury’s production of either a no bill decision or true 

bill decision, which will then result in a judgment for either the defendant or the 

state. Under the broader definition of “action” supplied in Bernbaum, a grand jury 

proceeding constitutes an action. 
January Term, 2016 

9

Is an Order Enforcing a Grand Jury Subpoena and Ordering Production of 

Allegedly Privileged Information a Final Order?

{¶ 18} Because we conclude that a grand jury proceeding constitutes an 

action, the next question before us is whether an order denying a motion to quash a 

grand jury subpoena and ordering a party to testify or produce documents is an 

order granting or denying a provisional remedy that is potentially subject to appeal 

pursuant to R.C. 2505.02(B)(4). R.C. 2505.02(A)(3) defines a provisional remedy 

as “a proceeding ancillary to an action.” As we have previously noted, the phrase 

“ancillary to an action” is undefined in the Revised Code. State v. Muncie, 91 Ohio 

St.3d 440, 448, 746 N.E.2d 1092 (2001). In Muncie, we held that for purposes of 

R.C. 2505.02(A)(3), “ ‘[a]n ancillary proceeding is one that is attendant upon or 

aids another proceeding.’ ” Id. at 449, quoting Bishop v. Dresser Industries, 134 

Ohio App.3d 321, 324, 730 N.E.2d 1079 (1999). We further noted that “ancillary” 

can be defined as “ ‘ “describing a proceeding attendant upon or which aids another 

proceeding considered as principal.” ’ ” Muncie at 449, quoting Sorg v. 

Montgomery Ward & Co., Inc., 6th Dist. Erie No. E-98-057, 1998 WL 904945, *3 

(Dec. 17, 1998), quoting Black’s Law Dictionary 78 (5th Ed.1979). Applying these 

definitions, we held that a petition for forced medication under R.C. 2945.38 was a 

provisional remedy ancillary to a criminal action undertaken by the state against an 

incompetent defendant, because without the petition for forced medication, an 

incompetent defendant would likely never be restored to legal competency. Muncie

at 450. 

{¶ 19} We similarly hold that an order denying a motion to quash a grand 

jury subpoena and ordering a party to testify or produce documents is an order 

granting or denying a provisional remedy as defined by R.C. 2505.02(A)(3). A 

motion to quash a subpoena is a proceeding that aids the grand jury proceeding 

because the decision on the motion will either allow or deny the grand jury access 

to information that could be determinative in reaching a decision. The motion to 
SUPREME COURT OF OHIO

10 

quash is accordingly “a proceeding ancillary to an action” and therefore a 

provisional remedy pursuant to R.C. 2505.02(A)(3). 

{¶ 20} It thus remains for us to determine whether this provisional remedy 

qualifies as a final order pursuant to R.C. 2505.02(B)(4). That statute specifies that 

an order granting or denying a provisional remedy is a final order that may be 

appealed when two criteria are met: 

 (a) The order in effect determines the action with respect to 

the provisional remedy and prevents a judgment in the action in 

favor of the appealing party with respect to the provisional remedy. 

(b) 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. 

{¶ 21} “An order compelling the production of materials alleged to be 

protected by the attorney-client privilege is a final, appealable order under R.C. 

2505.02(B)(4).” Burnham, ___ Ohio St.3d __, 2016-Ohio-8000, __N.E.3d __, ¶ 

30 (Court opinion). “Any order compelling the production of privileged or 

protected materials certainly satisfies 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.” Id. at ¶ 21. Applying this reasoning, 

we conclude that an order enforcing a grand jury subpoena and ordering production 

of allegedly privileged information similarly determines the action and prevents a 

judgment in favor of the appealing party with respect to the provisional remedy, for 

once the information is produced, it would no longer be possible to obtain a 

judgment preventing the disclosure of that information. The order in this case 

accordingly meets the criteria set forth in R.C. 2505.02(B)(4)(a). 
January Term, 2016 

11

{¶ 22} The second requirement in R.C. 2505.02(B)(4)—that the appealing 

party would not be afforded a meaningful or effective remedy by an appeal 

following final judgment—allows for appeals when the need for immediate review 

outweighs the substantial interest in avoiding piecemeal litigation. See id. at ¶ 22. 

When a party is compelled to produce material protected by the attorney-client 

privilege, harm extends beyond the actual case being litigated and causes the loss 

of a right that cannot be rectified by a later appeal, and R.C. 2505.02(B)(4)(b) is 

accordingly satisfied. Id. at ¶ 2. Identical concerns are present in this case, so we 

similarly conclude that the second requirement in R.C. 2505.02(B)(4) is met in this 

case.3

{¶ 23} Because both criteria set forth in R.C. 2505.02(B)(4) are met in this 

case, we hold that an order enforcing a grand jury subpoena and ordering 

production of allegedly privileged information is a final order pursuant to R.C. 

2505.02(B)(4). 

{¶ 24} Our decision that a final order exists and that appeal is accordingly 

possible is consistent with the axiom that a grand jury does not have power to 

consider privileged information. “[T]he grand jury’s subpoena power is not 

unlimited. It may consider incompetent evidence, but it may not itself violate a 

valid privilege, whether established by the Constitution, statutes, or the common 

law.” United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 38 L.Ed.2d 561 

(1974). Our conclusion that an order enforcing a grand jury subpoena and ordering 

of allegedly privileged information is final and appealable thus fits within the 

 

3

 In Burnham, we distinguished the protection provided by the attorney-work-product doctrine 

from the protection provided by the attorney-client privilege. Id. at ¶ 16. While in this case, 

appellants alleged protection arising from the attorney-client privilege, the attorney-work-product 

doctrine, and the common-interest doctrine, the propositions of law in this case specifically 

reference privileged materials. Our conclusion today that R.C. 2505.02(B)(4)(b) has been satisfied 

accordingly applies only to information alleged to be protected by privilege. Given the procedural 

posture of this case, we will not address whether the R.C. 2505.02(B)(4)(b) requirement is 

satisfied with regard to any information alleged to be protected by the attorney- work-product 

doctrine or the common-interest doctrine in this case. 
SUPREME COURT OF OHIO

12 

framework of our criminal procedure, for the only way to prevent grand juries from 

potentially violating a privilege and forcing parties to disclose privileged 

information is to allow those parties the opportunity to appeal before divulging that 

information. 

III. Conclusion 

{¶ 25} We accordingly hold that an order denying a motion to quash a grand 

jury subpoena and ordering a party to testify or produce documents is an order 

granting or denying a provisional remedy within the meaning of R.C. 

2505.02(A)(3). Furthermore, an order enforcing a grand jury subpoena and 

ordering production of allegedly privileged information is a final order pursuant to 

R.C. 2505.02(B)(4). We reverse the judgment of the Eighth District Court of 

Appeals holding that the trial court’s order is not final, and we remand this cause 

to the court of appeals so that it may proceed with the appeal. 

Judgment reversed 

and cause remanded. 

O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., concur. 

O’DONNELL, J., concurs in judgment and concurs in paragraph two of the 

syllabus. 

KENNEDY, J., concurs in judgment only, with an opinion joined by FRENCH, 

J. 

_________________ 

KENNEDY, J., concurring in judgment only. 

{¶ 26} I agree with the majority that a grand jury proceeding constitutes an 

action for purposes of determining whether a final, appealable order exists pursuant 

to R.C. 2505.02. However, the fact that an order was issued in a grand jury 

proceeding, as opposed to a personal-injury action, is not relevant to a 

determination as to whether R.C. 2505.02(B)(4) is satisfied. In other words, 
January Term, 2016 

13

regardless of whether the type of action in which an order to compel is issued is 

“unique,” the R.C. 2505.02(B)(4) analysis is unaffected. 

{¶ 27} R.C. 2505.02(B)(4) provides that an order that “grants or denies a 

provisional remedy” is a final appealable order if the order “determines the action 

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

afforded a meaningful or effective remedy by an appeal * * *.” The majority’s 

conclusion that the order at issue is a final, appeal order pursuant to R.C. 

2505.02(B)(4) relies on this court’s holding in Burnham v. Cleveland Clinic, ____ 

Ohio St.3d ___, 2016-Ohio-8000, ____ N.E.3d ____, which distorts the history of 

the work-product doctrine, ignores the constitutional underpinnings of Ohio’s 

work-product doctrine, and misses the nuances of Civ.R. 26. Id. at ¶ 44 (Kennedy, 

J., concurring in judgment only). Therefore, I concur in judgment only. 

{¶ 28} The appellants here moved to quash the subpoenas because the 

information sought was protected by the “attorney-client privilege, the attorneywork-product doctrine, and the common-interest doctrine.” Majority opinion at 

¶ 2. Without determining whether appellants’ attorney-client privilege claim was 

colorable, the majority, relying on Burnham, held the following: “[W]hen a party 

is compelled to produce material protected by the attorney-client-privilege, harm 

extends beyond the actual case being litigated and causes the loss of a right that 

cannot be rectified by later appeal, and R.C. 2505.02(B)(4)(b) is accordingly 

satisfied.” Majority opinion at ¶ 22. 

{¶ 29} This analysis raises questions. Is the majority declaring that all a 

litigant need do to trigger a final, appealable order pursuant to R.C. 

2505.02(B)(4)(b) is allege that the material sought is protected by the attorneyclient privilege? Or does a trial court, in addition to having to determine whether 

the material is discoverable, also have to determine under which protected category 

a document falls to know whether the order is a final, appealable order? 
SUPREME COURT OF OHIO

14 

{¶ 30} The majority answers appellants’ first proposition of law with the 

following broad syllabus language. “[A]n order * * * ordering the production of 

allegedly privileged information is a final order pursuant to R.C. 2505.02(B)(4).” 

(Emphasis added.) Majority opinion at paragraph two of the syllabus. 

{¶ 31} This syllabus language causes confusion. Is the majority declaring 

that all a litigant need do to qualify the order to release allegedly protected material 

as a final, appealable order pursuant to R.C. 2505.02(B)(4)(b) is allege that the 

material sought contains privileged information? Is the majority declaring that a 

trial court need only determine whether the privilege was adequately “alleged”? By 

“privileged,” does the majority mean in the “strict” or “loose” sense? See Burnham, 

__ Ohio St. 3d __, 2016-Ohio-8000, ___ N.E.3d ___, ¶ 36. And does the trial court 

have to concern itself with the “source of the privilege”? Id. at 44. 

{¶ 32} Regardless of how the majority attempts to avoid the problems this 

court created in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 

633, the time has come to set the matter right. But once again we fail, instead 

continuing the disservice we have done to the bar and bench that began in Chen. 

This court now requires “privilege” to be applied in its “strict sense,” rather than its 

“loose sense,” whatever these concepts mean, to determine whether an order 

compelling discovery of a privileged document is a final, appealable order. 

Burnham at ¶ 32 (Court opinion). As a result of this new legal architecture, trial 

courts must now consider materials protected by attorney-client privilege in a 

separate framework from those protected by work-product privilege, based on the 

source to the privilege. Id. Apparently, gray areas do not exist, and such 

distinctions are obvious. 

{¶ 33} Furthermore, Burnham wrongly declared that the work-product 

privilege did not exist at common law, which is “[t]he body of law derived from 

judicial decisions, rather than from statutes or constitutions.” Black’s Law 

Dictionary 334 (10th Ed.2014). This pronouncement ignores a wealth of English 
January Term, 2016 

15

case law that “developed the concept of privilege to include all documents prepared 

by or for counsel with a view to litigation.” Hickman v. Taylor, 329 U.S. 495, 510, 

67 S.Ct. 385, 91 L.Ed. 451 (1947), fn. 9. Moreover, it also ignores that the workproduct privilege predated Hickman. Id. See also Ex parte Schoepf, 74 Ohio St. 1, 

15, 77 N.E. 276 (1906), overruled in part on other grounds by ex parte Martin, 141 

Ohio St. 87, 47 N.E.2d 388 (1943), paragraph four of the syllabus (reports made in 

anticipation of possible litigation and that were in possession of counsel for use in 

the suit were privileged). Clearly, the pronouncements of the English courts, 

Hickman, and this court fall within the definition of common law. 

{¶ 34} The majority’s declaration also ignores the common-law component 

of the work-product privilege in this state. See Burnham at ¶ 35 (Kennedy, J., 

concurring in judgment only). The majority ignores our recent acknowledgement 

that Civ.R. 26 does not incorporate all the work-product doctrine. Squire, Sanders 

& Dempsey, L.L.P v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio4469, 937 N.E.2d 533, ¶ 58 (work-product doctrine extends to intangible work 

product to which Civ.R. 26(B)(3) does not apply). Accordingly, common law 

controls the resolution of some of this category of disputes. 

{¶ 35} Moreover, the majority’s treatment of the work-product privilege 

diminishes the protection provided under the Civil Rules, notwithstanding that the 

court’s authority to promulgate the rules is drawn from the Ohio Constitution. See 

Burnham, ___ Ohio St.3d ___, 2016-Ohio-8000, ___ N.E.3d ___, ¶ 34 (Kennedy, 

J., concurring in judgment only). Our procedural rules are controlling unless the 

legislature enacts a conflicting law that affects a substantive right. See also Morris 

v. Morris, __Ohio St.3d ___, 2016-Ohio-5002, ___ N.E.3d ___, ¶ 30. 

{¶ 36} The parsing of the term “privilege” in Burnham typifies the problem 

we have brought upon ourselves by failing to recognize that Chen was wrongly 

decided. In accord with my analysis in Burnham (Kennedy, J., concurring in 

judgment only), Chen should be overruled pursuant to the tripartite test in Westfield 
SUPREME COURT OF OHIO

16 

Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, 

paragraph one of the syllabus. 

{¶ 37} Accordingly, I concur in judgment only. 

FRENCH, J., concurs in the foregoing opinion. 

_________________ 

 Timothy McGinty, Cuyahoga County Prosecuting Attorney, and Matthew 

E. Meyer and Christopher D. Schroeder, Assistant Prosecuting Attorneys; and 

Daniel J. Kasaris, Senior Assistant Ohio Attorney General and Deputy Cuyahoga 

County Prosecuting Attorney, for appellee. 

 Walter Haverfield L.L.P., Ralph E. Cacarilla, and Darrell A. Clay; and 

Tucker Ellis L.L.P. and John F. McCaffrey, for appellant partnership. 

Martin G. Weinberg, P.C., and Martin G. Weinberg; and Baker Hostetler, 

L.L.P., George A. Stamboulidis, and Lisa M. Ghannoum, for appellant president. 

_________________