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

Burnham v. Cleveland Clinic, Slip Opinion No. 2016-Ohio-8000.] 

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-8000

BURNHAM, APPELLEE, v. CLEVELAND CLINIC ET AL., APPELLANTS. 

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

may be cited as Burnham v. Cleveland Clinic, Slip Opinion No. 

2016-Ohio-8000.] 

Privilege—Work-product doctrine—Order compelling production of materials 

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

order—Smith v. Chen, limited.

(No. 2015-1127—Submitted May 4, 2016—Decided December 7, 2016.) 

APPEAL from the Court of Appeals for Cuyahoga County, No. 102038, 

2015-Ohio-2044. 

_____________________ 

LANZINGER, J.

{¶ 1} We accepted this discretionary appeal to resolve whether an order 

compelling the production of documents allegedly protected by the attorney-client 

privilege is a final, appealable order under R.C. 2505.02(B)(4). We also accepted 

review to clarify our holding regarding privilege, the attorney work-product 
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2

doctrine, and R.C. 2505.02(B)(4)(b) in Smith v. Chen, 142 Ohio St.3d 411, 2015-

Ohio-1480, 31 N.E.3d 633. 

{¶ 2} We hold that an order requiring the production of information 

protected by the attorney-client privilege causes harm and prejudice that inherently 

cannot be meaningfully or effectively remedied by a later appeal. Thus, a discovery 

order that is alleged to breach the confidentiality guaranteed by the attorney-client 

privilege satisfies R.C. 2505.02(B)(4)(b) and is a final, appealable order that is 

potentially subject to immediate review. Other discovery protections that do not 

involve common law, constitutional, or statutory guarantees of confidentiality, such 

as the attorney work-product doctrine, may require a showing under R.C. 

2505.02(B)(4)(b) beyond the mere statement that the matter is privileged. Our 

holding in Chen is limited to the latter context. 

{¶ 3} Because appellants, the Cleveland Clinic and Cleveland Clinic Health 

System (“Clinic”), have plausibly alleged that the attorney-client privilege would 

be breached by disclosure of the requested materials, the order compelling the 

disclosure is a final, appealable order. Contrary to the dissent’s view, we are not 

characterizing the requested material as being covered by the attorney–client 

privilege, but are merely requiring appellate review of the trial court’s decision. 

We therefore reverse the dismissal of the appeal and remand to the court of appeals 

to determine whether the trial court erred in ordering the incident report released. 

BACKGROUND

{¶ 4} In March 2014, appellee, Darlene Burnham, brought a personal-injury 

action against the Clinic and certain Clinic employees. She alleged that she had 

slipped and fallen in her sister’s hospital room at the Clinic in July 2012. Allegedly, 

an employee had poured liquid on the floor and had failed to warn Burnham of the 

hazardous condition. 

{¶ 5} During discovery, Burnham requested identification of any person 

who had made statements or reports about her accident and copies of any written 
January Term, 2016 

3

statements or reports. Although the employee involved was identified, neither party 

could locate her for deposition. Burnham also requested an incident report that she 

learned had been created. But the Clinic alleged that the report was not 

discoverable because it was shielded by various discovery protections, including 

the attorney-client privilege. 

{¶ 6} Burnham filed a motion to compel discovery. The trial court ordered 

the Clinic to provide Burnham with a privilege log and directed the parties to brief 

the issue of privilege. Included with the Clinic’s privilege log, filed under seal, was 

a copy of the report and an affidavit from the Clinic’s deputy chief legal officer 

averring that the report had been generated as part of its protocol to notify the 

Clinic’s legal department of events that might be the basis for legal action. After 

reviewing the parties’ briefs and the privilege log, the court concluded that 

Burnham’s motion to compel should be granted. The court ordered the Clinic to 

produce the July 2012 incident report. 

{¶ 7} The Clinic appealed to the Eighth District Court of Appeals, arguing 

that the incident report was protected by the attorney-client privilege and was not 

discoverable. The Eighth District dismissed the appeal for lack of jurisdiction, 

citing Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633. The 

appellate court held that there was no final, appealable order to review because the 

Clinic had failed to affirmatively establish that there would be prejudice resulting 

from disclosure of the incident report sufficient to satisfy R.C. 2505.02(B)(4). 

2015-Ohio-2044, ¶ 13. 

{¶ 8} We accepted the appeal on one proposition of law: “An order 

requiring production of privileged documents, conversations or other materials is a 

final, appealable order pursuant to R.C. 2505.02(B)(4), thereby conferring 
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jurisdiction over the issue to the court of appeals under Article IV, Section 

3(B)(2).”1

 144 Ohio St.3d 1425, 2015-Ohio-5225, 42 N.E.3d 762. 

LEGAL ANALYSIS

{¶ 9} We accepted jurisdiction to clarify Chen, a case that reviewed R.C. 

2505.02(B)(4)(b) to determine whether a discovery order involving attorney work 

product was final and appealable. As some confusion seems to exist over the 

breadth of that decision, we limit it solely to its facts. We see no need to overrule 

the case altogether despite the impassioned arguments within the lengthy 

concurring opinion. 

{¶ 10} Here, the Clinic asserts that its report is protected under the attorneyclient privilege and that an order requiring disclosure should be reviewable 

immediately. R.C. 2505.02(B) states that an order is final and reviewable when it 

is: 

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

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. 

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

but not limited to * * * discovery of privileged matter.” R.C. 2505.02(A)(3). 

 

1. This provision of the Ohio Constitution states: “Courts of appeals shall have such jurisdiction as 

may be provided by law to review and affirm, modify, or reverse judgments or final orders of the 

courts of record inferior to the court of appeals within the district * * *.” 
January Term, 2016 

5

{¶ 11} Chen, although considering the same statutory language, involved 

only the attorney work-product doctrine rather than the attorney-client privilege and 

does not determine the outcome here.

Smith v. Chen 

{¶ 12} In a medical malpractice action brought by Henry Smith against Dr. 

Ying Chen and OrthoNeuro (“Chen”), the trial court ordered Chen to disclose a 

video-surveillance recording that his attorney had prepared for use as impeachment 

evidence at trial. Smith v. Chen, Franklin C.P. No. 10 CV 18058 (Dec. 5, 2012). 

Chen had claimed that the video was privileged as attorney work product pursuant 

to Civ.R. 26(B)(3), which allows discovery of the opposing party’s attorney work 

product “only upon a showing of good cause.” The trial court found the plaintiff 

to have shown good cause because the risk to Smith of surprise and unfairness 

during trial outweighed Chen’s interest in nondisclosure prior to trial. 

{¶ 13} The Tenth District Court of Appeals affirmed the trial court’s order. 

While acknowledging that discovery orders are interlocutory and therefore 

generally not final and appealable, it held that it had appellate jurisdiction over 

discovery orders involving privilege. Smith v. Chen, 10th Dist. Franklin No. 12AP1027, 2013-Ohio-4931, ¶ 10. The court of appeals stated that because the attorney 

work-product doctrine is a “qualified privilege,” an order for its disclosure is final 

and appealable. Id. at ¶ 11. 

{¶ 14} We initially accepted discretionary review on whether an order 

compelling production of surveillance video created only for impeachment 

purposes violates the attorney work-product doctrine of Civ.R. 26(B)(3). 138 Ohio 

St.3d 1447, 2014-Ohio-1182, 5 N.E.3d 666. We later ordered the parties to show 

cause why the matter should not have been dismissed for lack of a final, appealable 

order pursuant to R.C. 2505.02. Smith v. Chen, 141 Ohio St.3d 1461, 2015-Ohio370, 24 N.E.3d 1180. In his response, Chen merely repeated the appellate court’s 

observation regarding qualified privileges. 2013-Ohio-4931, at ¶ 11. We 
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concluded that Chen had failed to satisfy R.C. 2505.02(B)(4)(b), which requires an 

appellant to establish that he “ ‘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.’ ” Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 

633, at ¶ 5, quoting R.C. 2505.02(B)(4). We noted: 

This ruling does not adopt a new rule, nor does it make an appeal 

from an order compelling disclosure of privileged material more 

difficult to maintain. An order compelling disclosure of privileged 

material that would truly render a postjudgment appeal meaningless 

or ineffective may still be considered on an immediate appeal.

(Emphasis sic.) Id. at ¶ 9. This language concerning “privilege” may seem to 

extend to all discovery orders. However, we emphasized that Chen involved a 

failure to respond to the issue being adjudicated: 

Dr. Chen and OrthoNeuro have never argued, much less established, 

that they would not be afforded a meaningful or effective remedy 

through an appeal after a final judgment is entered by the trial court 

resolving the entire case. They did not address the issue in any of 

their briefs here or in the court of appeals. The only reference to the 

statute defining final, appealable order that Dr. Chen and 

OrthoNeuro make is in their docketing statement filed in the court 

of appeals, in which the statute is listed as a statute requiring 

interpretation or application on appeal. Notably, Dr. Chen and 

OrthoNeuro again failed to address the requirement in R.C. 

2505.02(B)(4)(b) after this court ordered them to show cause why 
January Term, 2016 

7

this matter should not be dismissed for lack of a final, appealable 

order. 

Chen at ¶ 6. 

{¶ 15} In addition to the explicitly limited nature of our holding in Chen, 

differences between the attorney-client privilege and the attorney work-product 

doctrine make clear why Chen does not control the outcome of this case. The 

attorney-client privilege and the attorney-work-product doctrine provide different 

levels of protection over distinct interests, meaning that orders forcing disclosure 

in these two types of discovery disputes do not necessarily have the same result that 

allows an immediate appeal. 

Attorney-client privilege v. work product 

{¶ 16} The concurring justice would have us overrule Chen and treat 

attorney work- product and attorney-client privilege the same. But the attorneyclient privilege and the attorney work-product doctrine do not share the same 

origins or occupy the same provisions of statutory or common law. The main 

purpose behind the attorney-client privilege is to promote “ ‘full and frank 

communication between attorneys and their clients and thereby promote broader 

public interests in the observance of law and the administration of justice.’ ” Boone 

v. Vanliner Ins. Co., 91 Ohio St.3d 209, 210, 744 N.E.2d 154 (2001), fn. 2, quoting 

Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 

(1981). On the other hand “[t]he purpose of the work-product doctrine is ‘to 

prevent an attorney from taking undue advantage of his adversary’s industry or 

efforts.’ ” Id. quoting Civ.R. 26(A)(2). Although both the attorney-client privilege 

and the work-product doctrine might often apply to the same material, the 

protections do not overlap completely. See In re Election of Nov. 6, 1990 for the 

Office of Atty. Gen. of Ohio, 57 Ohio St.3d 614, 615, 567 N.E.2d 243 (1991). 
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{¶ 17} The attorney-client privilege is one of the oldest privileges 

recognized in the common law. Swidler & Berlin v. United States, 524 U.S. 399, 

403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). In Ohio, the testimonial privilege is 

governed by R.C. 2317.02, which prohibits attorneys from revealing 

communications that a client made to an attorney. The privilege belongs to the 

client, and unless a wavier or other exception causes the privilege to not apply, it 

offers full protection from discovery. R.C. 2317.02(A); Civ.R. 26(B)(1). 

{¶ 18} By contrast, an attorney’s work product is not included among the 

privileges protected by R.C. 2317.02 or the common law. Hickman v. Taylor, 329 

U.S. 495, 508, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (the protections of attorney-client 

privilege do not extend to an attorney’s work or information collected). In Ohio, 

protection for an attorney’s work product is codified in Civ.R. 26, which notably 

recognizes work product as separate from privileged matters. See Civ.R. 26(B)(6) 

(differentiating between privilege and protection of trial-preparation material). See 

also 1980 Staff Note, Evid. R. 501 (attorney work product is not governed by 

privilege rules as held in Hickman). The protection belongs to the attorney, but 

Civ.R. 26(B)(6) allows the protection to be removed by an opposing party’s 

demonstration of a need for the materials. Jackson v. Greger, 110 Ohio St.3d 488, 

2006-Ohio-4968, 854 N.E.2d 487, paragraph two of the syllabus and ¶ 16; Civ.R. 

26(B)(3). Thus, the common law and judicial rules recognize the attorney workproduct doctrine as a rule that may provide protection from discovery. 

{¶ 19} We have long recognized that the protection against discovery of 

matters identified as “privileged” in Civ.R. 26(B)(1) is limited to those derived 

from a specific constitutional or statutory provision. State ex rel. Grandview Hosp. 

& Med. Ctr. v. Gorman, 51 Ohio St.3d 94, 95, 554 N.E.2d 1297 (1990), citing In 

re Story, 159 Ohio St. 144, 147, 111 N.E.2d 385 (1953). Although not technically 

a privilege in the strict sense, the attorney work-product doctrine is frequently 

called a privilege in the popular sense. See, e.g., United States v. Nobles, 422 U.S. 
January Term, 2016 

9

225, 239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Squire, Sanders & Dempsey, 

L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 

N.E.2d 533, ¶ 55; Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at 

¶ 9. Using “privilege” as shorthand for the attorney work-product doctrine can be 

useful in many contexts when it promotes conceptual simplicity. But the use of 

“privilege” as shorthand does not cause an attorney’s work product to be on the 

same footing as a client’s substantive right to confidentiality. 

Interlocutory appeal of discovery orders 

{¶ 20} To show that an order for a provisional remedy such as the discovery 

of privileged or protected materials is final and appealable, R.C. 2505.02(B)(4)(a) 

requires a showing that the order determines the privilege issue and prevents a 

judgment in favor of the appellant regarding that issue, while R.C. 2505.02(B)(4)(b) 

requires a showing that the harm caused by the privilege-related discovery order 

cannot be meaningfully or effectively remedied by an appeal after final judgment. 

See State v. Muncie, 91 Ohio St.3d 440, 446, 746 N.E.2d 1092 (2001). 

{¶ 21} 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. But the irreversible nature of the order alone does 

not satisfy R.C. 2505.02(B)(4)(b), which requires consideration of whether an 

appeal after judgment can rectify the damage of an erroneous trial court ruling. 

Muncie at 451. Given the differing interests and protections of the attorney-client 

privilege and the attorney work-product doctrine, the damage that needs to be 

rectified and the need for immediate appeal may differ as well. 

{¶ 22} R.C. 2505.02(B)(4)(b) recognizes that in certain situations, the need 

for immediate review outweighs the substantial interest in avoiding piecemeal 

litigation. This recognition has its roots in Amato v. Gen. Motors Corp., 67 Ohio 

St.2d 253, 423 N.E.2d 452 (1981), overruled by Polikoff v. Adam, 67 Ohio St.3d 
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10

100, 616 N.E.2d 213 (1993), at syllabus. Amato expanded upon the specialproceeding standard now found in R.C. 2505.02(A)(2) and provided a balancing 

test to determine whether a special proceeding—and thereby a final, appealable 

order—was involved: “This test weighs the harm to the ‘prompt and orderly 

disposition of litigation,’ and the consequent waste of judicial resources, resulting 

from the allowance of an appeal, with the need for immediate review because 

appeal after final judgment is not practicable.” Amato at 258. 

{¶ 23} Polikoff rejected this balancing test to determine whether a “special 

proceeding” existed and overruled Amato. Although discovery orders were then 

held to be interlocutory and not immediately appealable, we noted that it was the 

General Assembly’s prerogative to expand the scope of R.C. 2505.02 to include 

matters such as discovery orders. Walters v. Enrichment Ctr. of Wishing Well, Inc., 

78 Ohio St.3d 118, 122-123, 676 N.E.2d 890 (1997), fn. 2. Shortly after Walters, 

the legislature amended R.C. 2505.02(B)(4)(b), 1998 Sub.H.B. No. 394, 147 Ohio 

Laws, Part II, 3277, 3278, to essentially adopt the Amato balancing test. Thus, 

although Amato and related cases were overruled, the reasoning in those cases 

provides insight into the application of R.C. 2505.02(B)(4)(b). 

{¶ 24} Under the Amato standard, we had held that discovery orders that 

breached a protected interest in confidentiality were final, appealable orders. 

Humphry v. Riverside Methodist Hosp., 22 Ohio St.3d 94, 488 N.E.2d 877 (1986) 

(physician-patient privilege); State v. Port Clinton Fisheries, Inc., 12 Ohio St.3d 

114, 465 N.E.2d 865 (1984) (informant confidentiality). The reason for finding an 

immediate need for review in those cases was that they 

implicated underlying privacy or law enforcement interests that 

extended beyond any particular litigation. While an appellate court 

could provide some relief after final judgment from the disclosure 
January Term, 2016 

11 

of such privileged information, such relief could not adequately 

undo the extrajudicial harm done to those interests by disclosure. 

Nelson v. Toledo Oxygen & Equip. Co., Inc., 63 Ohio St.3d 385, 389, 588 N.E.2d 

789 (1992). Under the same standard, we determined that an order compelling 

production of materials allegedly protected by the work-product doctrine under 

Civ.R. 26(B)(3) was not a final, appealable order. Nelson at syllabus. The reason 

for finding no need for immediate review in this latter situation was: 

Because the work-product exemption protects materials that are 

peculiarly related to litigation, any harm that might result from the 

disclosure of those materials will likewise be related to litigation. 

An appellate court review of such litigation will necessarily be able 

to provide relief from the erroneous disclosure of work-product 

materials. 

Id. at 389. 

{¶ 25} Exposure of the information that is to be protected by attorney-client 

privilege destroys the confidentiality of possibly highly personal or sensitive 

information that must be presumed to be unreachable. Taylor v. Sheldon, 172 Ohio 

St. 118, 121, 173 N.E.2d 892 (1961). We have already recognized that an order 

compelling production of material covered by the attorney-client privilege is an 

example of that for which there is no effective remedy other than immediate appeal 

as contemplated by R.C. 2505.02(B)(4)(b). Muncie, 91 Ohio St.3d at 451, 746 

N.E.2d 1092 (2001), citing Cuervo v. Snell, 10th Dist. Franklin Nos. 99AP-1442, 

99AP-1443, and 99AP-1458, 2000 WL 1376510 (Sept. 26, 2000). 

{¶ 26} But the same guarantee of confidentiality is not at risk with an 

attorney’s work product. And as we stated in Nelson, any harm from disclosure 
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would likely relate to the case being litigated, meaning that appellate review would 

more likely provide appropriate relief. Nelson at 389. This is not to say that 

compelling the disclosure of an attorney’s work product pursuant to Civ.R. 

26(B)(3) would never satisfy R.C. 2505.02(B)(4)(b) and require an interlocutory 

appeal. But it does not necessarily involve the inherent, extrajudicial harm involved 

with a breach of the attorney-client privilege. 

Limitation of Chen 

{¶ 27} We were unable to explore the relationship between the attorney 

work-product doctrine and R.C. 2505.02(B)(4)(b) in Chen despite our request to 

show cause. We dismissed Chen for lack of a final, appealable order, holding that 

an appellant must demonstrate that “[a]n order compelling disclosure of privileged 

material [ ] would truly render a postjudgment appeal meaningless or ineffective.” 

(Emphasis sic.) Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at 

¶ 9. Our use of “privilege” in the looser, popular sense seems to have suggested 

that Chen did create a new rule. But Chen’s actual holding was not broad or 

expansive, being limited to the attorney work-product doctrine. We now clarify 

that Chen did not apply to the attorney-client privilege. 

{¶ 28} Finally, because responses to motions to compel may assert various 

claims of privilege in resisting disclosure of materials, a trial court should explain 

why a motion granting production has been granted. In that way, a reviewing court 

can determine the pertinent issues and whether the requirements of R.C. 

2505.02(B)(4)(a) and (b) are satisfied. 

{¶ 29} Here, although the trial court’s order compelling the disclosure of 

the Clinic’s incident report did not specify why it was rejecting the claim of 

attorney-client privilege or other protections claimed, it is clear from the briefing 

that the attorney-client privilege had been rejected and was the only remaining 

discovery protection being sought. Because the Clinic raised a colorable claim that 
January Term, 2016 

13 

its report was protected by the attorney-client privilege, the court’s order 

compelling disclosure of that report was a final, appealable order. 

CONCLUSION

{¶ 30} 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). Prejudice would be inherent in violating the confidentiality 

guaranteed by the attorney-client privilege, and therefore, an appeal after final 

judgment would not provide an adequate remedy. We reverse the judgment of the 

Eighth District Court of Appeals and remand the cause to that court for 

consideration of the merits of the Clinic’s appeal. 

Judgment reversed 

and cause remanded. 

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

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

O’DONNELL and FRENCH, JJ. 

PFEIFER, J., dissents, with an opinion. 

_________________ 

KENNEDY, J., concurring in judgment only. 

{¶ 31} I concur that the trial court’s order to provide Darlene Burnham with 

the Cleveland Clinic’s July 2012 incident report is final and appealable. I cannot 

join in the court’s opinion, however, because its analysis is incomplete and 

disingenuous. 

{¶ 32} Before this court’s decision in Smith v. Chen, the law of whether a 

trial court’s order to compel discovery of a privileged document was a final, 

appealable order was stable and predictable. 142 Ohio St.3d 411, 2015-Ohio-1480, 

31 N.E.3d 633, at ¶ 14 (Kennedy, J., dissenting). Every appellate district across 

Ohio had determined that “[o]rders compelling discovery of privileged information 

[were] “final, appealable orders under R.C. 2505.02(B)(4).” Id. In holding 
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otherwise, Chen did not distinguish between material privileged as attorney work 

product or as attorney-client communications. Id. at ¶ 5, 8, 9. 

{¶ 33} As a result of Chen, a split has now developed among the appellate 

districts. See Walker v. Taco Bell, 1st Dist. Hamilton No. C-150182, 2016-Ohio124, ¶ 8; Nationwide Mut. Fire Ins. Co. v. Jones, 4th Dist. Scioto No. 15CA3709, 

2016-Ohio-513, ¶ 11; Lavin v. Hervey, 5th Dist. Stark No. 2015CA00021, 2015-

Ohio-3458, ¶ 12. Instead of admitting its mistake and overruling Chen with the 

tripartite test established in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-

Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus, the court’s opinion 

doubles down and creates new law wherein a discovery order that is alleged to 

breach the confidentiality guaranteed by the attorney-client privilege satisfies R.C. 

2505.02(B)(4)(b) and is a final, appealable order, [but] [o]ther discovery 

protections that do not involve common law, constitutional, or statutory guarantees 

of confidentiality, such as the attorney work-product doctrine, may require a 

showing under R.C. 2505.02(B)(4)(b) beyond the mere statement that the matter is 

privileged. (Emphasis added.) Court opinion at ¶ 2. 

{¶ 34} This conclusion, however, is myopic. It does not recognize the 

common-law origins of the work-product doctrine and that some of the protection 

provided by the work-product doctrine exceed the protection of Civ.R. 26(B)(3). 

The conclusion also elevates statutory privileges over the work-product doctrine 

set forth in Civ.R. 26(B)(3), even though the Civil Rules are promulgated pursuant 

to the authority conferred upon the court by the Ohio Constitution. 

{¶ 35} Moreover, the conclusion ignores that Civ.R. 26 provides protection 

to a broader class of documents and materials than does the attorney-client 

privilege. Accordingly, the court’s opinion is denying “a meaningful or effective 

remedy by an appeal following final judgment,” R.C. 2505.02(B)(4)(b), to orders 

to produce documents protected by the work-product doctrine. See State v. Muncie, 
January Term, 2016 

15 

91 Ohio St.3d 440, 451, 746 N.E.2d 1092 (2001). The consequences will be farreaching. 

{¶ 36} Because I cannot agree that the protection afforded attorney work 

product can be parsed between whether we use the word privilege in a “strict” or 

“loose” sense or that an order compelling the disclosure of attorney work product 

will render a “meaningful or effective remedy” on appeal, I concur in judgment 

only. I would hold that an order requiring the release of privileged documents, 

whether protected by the attorney-client privilege or work-product doctrine, is a 

final, appealable order because the “ ‘proverbial bell cannot be unrung,’ ” Muncie 

at 451, quoting Gibson-Myers & Assocs., Inc. v. Pearce, 9th Dist. Summit No. 

19358, 1999 WL 980562, *2 (Oct. 27, 1999). I would therefore overrule Chen in 

accord with Galatis and restore stability and predictability to Ohio law. 

 I. Smith v. Chen

{¶ 37} The court’s opinion obfuscates its holding in Chen, alternatively 

limiting Chen to “its facts,” Court opinion at ¶ 9, when not limiting it to all cases 

involving the work-product doctrine, Court opinion at ¶ 14. This is all after creating 

a new, mysterious test for determining whether discovery orders in work-productdoctrine cases are final, appealable orders, Court opinion at ¶ 2. Henceforth, says 

the court opinion, discovery protections involving the attorney work-product 

doctrine “may require a showing under R.C. 2505.02(B)(4)(b) beyond the mere 

statement that the matter is privileged.” (Emphasis added.) Court opinion at ¶ 2. 

The court offers no pathway for judges and litigants to determine when, how, or 

before whom that showing is to be made. 

{¶ 38} For a case that has no bearing on the instant controversy and does 

not announce a “new rule,” Court opinion at ¶ 14, the court’s opinion expends pages 

explaining and defending its decision in Chen, a case that was dismissed for lack 

of a final, appealable order. While the treatment of Chen in this case is perplexing, 

blaming Chen’s counsel for the erroneous outcome because “Chen involved a 
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failure to respond the issue being adjudicated” is inexcusable. Court opinion at 

¶ 14. 

{¶ 39} We accepted the following proposition of law in Chen: “The Tenth 

District’s decision is one of first impression in that it has allowed during the course 

of discovery for the production of surveillance videotapes to be used for 

impeachment purposes in direct violation of Ohio’s work-product doctrine as set 

forth in Civ.R. 26(B)(3).” State v. Chen, 138 Ohio St.3d 1447, 2014-Ohio-1182, 5 

N.E.3d 666. 

{¶ 40} Because this court issued a show-cause order on a matter that “was 

not raised or briefed by the parties,” Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 

31 N.E.3d 633, at ¶ 12 (Kennedy, J., dissenting), I’m not sure what counsel for 

Chen could have done to satisfactorily obey the court’s order. This court does not 

permit the submission of evidence on appeal. State v. McKelton, __ Ohio St.3d __, 

2016-Ohio-5735, __ N.E.2d __, ¶ 79, citing State v. Keith, 79 Ohio St.3d 514, 536-

537, 684 N.E.2d 47 (1997). Therefore, counsel for Chen responded in the only 

manner possible, by citing the law in its appellate district: “[T]he Tenth District 

Court of Appeals’ determination that the discovery order commanding the release 

of attorney work product was a final, appealable order.” Chen at ¶ 12 (Kennedy, J. 

dissenting). This court ignored, however, the appellate court’s discussion of “the 

interlocutory nature of discovery orders” and its reliance on the established 

precedent of Legg v. Hallet, 10th Dist. Franklin No. 07AP-170, 2007-Ohio-6595, 

¶ 15. Chen, at ¶ 13 (Kennedy, J. dissenting). Also ignored was the fact that counsel 

for Smith did not respond to the show-cause order at all. Counsel for Chen fulfilled 

their professional duties before this court. 

 II. Attorney-Client Privilege and Work-Product Privilege Generally 

{¶ 41} In its attempt to salvage Chen, the court opinion manufactures an 

artificial distinction between a “strict sense” and a “popular sense” of “privilege” 

and then creates a narrative to support the appearance of adhering to precedent. 
January Term, 2016 

17 

“Privilege” is defined as a “special legal right, exemption, or immunity granted to 

a person or class of persons; an exemption to a duty.” Black’s Law Dictionary 1390 

(10th Ed.2014). As it relates to discovery, privilege provides “qualified immunity 

of an attorney’s work product from discovery or other compelled disclosure.” Id. 

at 1844. A “privileged communication” is a “communication that is protected by 

law from compelled disclosure in a legal proceeding.” Id. at 337. “Attorney-client 

privilege” is the “client’s right to refuse to disclose and to prevent any other person 

from disclosing confidential communications between the client and the attorney. 

Id. at 1391. In other words, both the work-product doctrine and attorney-client 

privilege involve privilege. 

{¶ 42} In Squire, Sanders & Dempsey, L.L.P v. Givaudan Flavors Corp., 

we explained the distinction between the attorney-client privilege and the workproduct privilege. 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 16 and 

55. Recognized as one of the oldest confidential privileges to promote full, frank 

communication between attorneys and clients, the attorney-client privilege is 

codified in R.C. 2317.02(A), and for those cases not covered by the statute, by 

common law. Id. at ¶ 16-17. The attorney-client privilege is held by the client, is 

waivable, and is subject to several recognized exceptions. Id. at ¶ 16-54. 

{¶ 43} Squire also traced the origin of the work-product doctrine. Id. at 

¶ 54. The United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 508, 

67 S.Ct. 385, 91 L.Ed. 451 (1947) explained that the work-product doctrine is a 

qualified privilege that protects the mental processes of the attorney. In Ohio, it is 

partially codified in Civ.R. 26. Squire at ¶ 54-55, 58. 

{¶ 44} To further distinguish between the attorney-client privilege and the 

work-product privilege, the court opinion focuses on the source of the protection. 

The attorney-client privilege was recognized at “common law” and is protected by 

R.C. 2317.02(A), while the attorney work-product privilege is not protected by 

common law or statute, but rather by Civ.R. 26, according to the court opinion. 
SUPREME COURT OF OHIO

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Court opinion at ¶ 17. From this distinction, the court opinion creates a new rule 

and distinguishes Chen—specifically, that a discovery order that is alleged to 

breach attorney-client privilege automatically satisfies R.C. 2505.02(B)(4)(b) and 

is a final, appealable order, but that the work-product doctrine, which does not 

“involve common law, constitutional, or statutory guarantees of confidentiality 

* * * may require a showing under R.C. 2505.02(B)(4)(b) beyond the mere 

statement that the matter is privileged.” Court opinion at ¶ 2. This declaration 

however, demonstrates that the court opinion has no understanding of the 

development of the work-product doctrine, the constitutional underpinnings of 

Ohio’s work-product doctrine, or the nuances of Civ.R. 26. 

 III. Common-Law Development of Work-Product Doctrine 

{¶ 45} “Common law” is [t]he body of law derived from judicial decisions, 

rather than from statutes or constitutions.” Black’s at 334. 

A. English Common Law 

{¶ 46} While a treatise could be written on the development of the workproduct doctrine in England, it is sufficient to begin with the United States Supreme 

Court’s recognition in Hickman that “English courts have developed the concept of 

privilege to include all documents prepared by or for counsel with a view to 

litigation.” 329 U.S. at 510, 67 S.Ct. 385, 91 L.Ed. 451, fn. 9. 

{¶ 47} English common law developed “seven grounds” of privilege on 

which a production request could be denied. Odgers & Harwood, Principles of 

Pleading and Practice in Civil Actions in the High Court of Justice 262 (12th 

Ed.1939). One was “documents prepared with a view to litigation”—that is, 

documents “called into existence with the purpose—but not necessarily the sole 

purpose—of assisting the deponent or his legal advisers in any actual or anticipated 

litigation.” Id. at 264. 

{¶ 48} For example, in the British case Birmingham & Midland Motor 

Omnibus Co. v. London & N.W. Ry Co., 3 K.B. 850, 856 (1913), the appellate court 
January Term, 2016 

19 

upheld the trial court’s denial of the plaintiff’s discovery request of documents that 

had been prepared in anticipation of litigation. Id. at 856. See also Adam Steamship 

Co., Ltd. v. London Assur. Corp., 3 K.B. 1256 (1914). 

{¶ 49} Additionally, in denying a motion for the production of documents, 

namely a report of an accountant and draft of pleadings, Vice-Chancellor Sir W. 

Page Wood held that when a solicitor employs a person to “assist him and to give 

his opinion, such communications are as much privileged as if they came from the 

solicitor himself.” Walsham v. Stainton, 2 H. & M. 357, 358 (1863). See also

Goldstone v. Williams, Deacon & Co., 1 Ch.D. 47 (1899). 

{¶ 50} In another case involving denying an application for inspection of 

documents that contained information that plaintiffs obtained “with a view to 

consulting their professional adviser,” Cockburn, C.J. stated that maintaining the 

confidences between a client and solicitor are “essential to the interests of justice 

and the well-being of society.” Southwark & Vauxhall Water Co. v. Quick, 3 

Q.B.D. 315, 317-318 (1878). See also Ankin v. London & N.E. Ry. Co., 1 K.B. 527 

(1930). 

B. Ohio Common Law 

{¶ 51} Like the English pleading system, Ohio established a statutory 

pleading system. Ohio Legislative Service Commission, Problems of Judicial 

Administration 48 (Feb.1965). In conjunction, procedural rights to obtain 

discovery and remedies to secure it were developed. Woodle, Discovery Practice 

in Ohio—Pathway to Progress, 8 Case W.Res.L.Rev. 117, 119-120 (1957). 

However, confronting Ohio lawyers was “[t]he common law [which] generally 

allowed litigant parties to conceal from each other, up to the time of trial, the 

evidence on which they meant to rely, and would not compel either of them to 

supply * * *.” Id. at 120, quoting Reynolds v. Burgess Sulphite Fiber Co., 71 N.H. 

332, 334, 51 A. 1075 (1902). And the historical basis for discovery proceedings in 

Ohio was judicial pronouncements. Id. at 121. 
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{¶ 52} While statutes required parties to “produce” evidence, this court was 

carving out exceptions. See Ex parte Schoepf, 74 Ohio St. 1, 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. In reversing judgments of the trial and 

circuit courts that held a witness in contempt for refusing to answer deposition 

questions and produce documents pursuant to a statute, this court declared: 

The statement of the witness that the reports were made in 

anticipation of possible litigation and that they are in 

possession of counsel for use in the suit which did ensue 

stands uncontradicted, and must, therefore, be taken as true. 

This clearly brings the documents within the rule as to 

privilege; and we see no reason to limit or modify the rule 

because the defendant is a corporation and obtained its 

information and made its memoranda for the purposes 

stated, through the usual agencies of a corporation. 

(Emphasis added.) Id. at 15-16. 

 IV. Enactment of the Federal Rules of Civil Procedure 

{¶ 53} The United States Supreme Court promulgated the Federal Rules of 

Civil Procedure in 1938. Subrin, Fishing Expeditions Allowed: The Historical 

Background of the 1938 Federal Discovery Rules, 39 B.C.L.Rev. 691 (1998), fn. 

4. The Rules merged law and equity proceedings and simplified the pleading 

practice, thereby expanding the need and role of discovery. Anderson, Cadieux, 

Hays, Hingerty, & Kaplan, The Work Product Doctrine, 68 Cornell L.Rev. 760, 

766-767 (1983). Fed.R.Civ.P. 26 created a “pre-trial deposition-discovery 

mechanism” requiring the disclosure of “any relevant matter which is not 

privileged.” Hickman, 329 U.S. 495, 500 and 507, 67 S.Ct. 385, 91 L.Ed. 451. 
January Term, 2016 

21 

 V. Hickman v. Taylor: Federal Common-Law Work-Product Doctrine 

{¶ 54} After the implementation of the Federal Rules of Civil Procedure, “a 

great divergence of views among the district courts” emerged regarding the 

protection of the work product of the lawyer. Id. at 500. As characterized by the 

court, the facts of Hickman presented the problem of “the extent to which a party 

may inquire into oral and written statements of witnesses, or other information, 

secured by an adverse party’s counsel in the course of preparation for possible 

litigation after a claim has arisen.” Id. at 497. 

{¶ 55} In Hickman, a tug boat owned by Taylor sank, killing five of the nine 

crew members, on February 7, 1943. 329 U.S. at 498. To defend against a possible 

suit, the tug owner and underwriter hired a lawyer, who “privately interviewed the 

survivors and took statements from them with an eye toward the anticipated 

litigation” and interviewed others. Id. He reduced some of those interviews to 

memoranda. Id. 

{¶ 56} Hickman, a representative of a deceased crewmember, brought suit 

and submitted interrogatories to the tug owners. In addition, he sought copies of 

statements of any interviews. Id. at 498-499. Counsel for the tug owners asserted 

privilege over the statements of survivors because they had been “ ‘obtained in 

preparation for litigation,’ ” and seeking them constituted an attempt to “ ‘obtain 

indirectly counsel’s private files.’ ” Id. at 498. 

{¶ 57} The trial court held that the matters were not privileged and ordered 

them disclosed. Id. at 500. The court of appeals reversed, holding “that the 

information here sought was part of the ‘work product of the lawyer’ and hence 

privileged from discovery under the Federal Rules of Civil Procedure.” Id. The 

United States Supreme Court granted certiorari and affirmed. Id. 

{¶ 58} While recognizing that the “deposition-discovery rules are to be 

accorded a broad and liberal treatment” and are to permit “either party [to] compel 

the other to disgorge whatever facts he has in his possession,” the procedure 
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22

nevertheless has “ultimate and necessary boundaries.” Hickman, 329 U.S. at 507, 

67 S.Ct. 385, 91 L.Ed. 451. 

{¶ 59} In rejecting the holding of the district court, the court held: 

 In our opinion, neither Rule 26 nor any other rule dealing 

with discovery contemplates production under such circumstances. 

That is not because the subject matter is privileged or irrelevant, as 

those concepts are used in these rules. Here is simply an attempt, 

without purported necessity or justification, to secure written 

statements, private memoranda and personal recollections prepared 

or formed by an adverse party’s counsel in the course of his legal 

duties. As such, it falls outside the arena of discovery and 

contravenes the public policy underlying the orderly prosecution 

and defenses of legal claims. Not even the most liberal discovery 

theories can justify unwarranted inquiries into the files and the 

mental impressions of an attorney. 

(Emphasis added.) Id. at 509-510. 

{¶ 60} “That was 1947; the work-product doctrine was case law.” Cohn, 

The Work-Product Doctrine: Protection, Not Privilege, 71 Geo.L.J. 917, 920 

(1983). This doctrine acknowledging the existence of the federal attorney-workproduct privilege would last for 23 years. During that time, district courts 

“struggled to put flesh on the doctrine,” and decisions were inconsistent. Id. 

{¶ 61} In 1953, the Advisory Committee proposed changes to the Federal 

Rules of Civil Procedure to “clarify the effect of Hickman.” Anderson, 68 Cornell 

L.Rev. at 782. However, the amendments regarding Hickman were rejected. Id. at 

783. Extensive amendments to the Rules resulted in a new Fed.R.Civ.P. 26(B)(3) 

in 1970, which codified Hickman, but not completely. Id. at 783. 
January Term, 2016 

23 

 VII. Promulgation of the Ohio Rules of Civil Procedure 

{¶ 62} The simplification of civil litigation was achieved with the 

promulgation of the Ohio Rules of Civil Procedure. The genesis of the Rules was 

the 1968 passage of Issue 3, after approval by the General Assembly, which resulted 

in the Modern Courts Amendment’s becoming part of the Ohio Constitution. 

Milligan & Pohlman, The 1968 Modern Courts Amendment to the Ohio 

Constitution, 29 Ohio St.L.J. 811 (1968), citing 1967 Am.Sub.H.J.Res.No. 42; see

also Article IV, Section 5(B), Ohio Constitution. 

{¶ 63} One aspect of the amendment was a recognition that the “keystone 

to the reform of judicial procedure was the conferring of rule-making power on the 

courts.” Corrigan, A Look at the Ohio Rules of Civil Procedure, 43 Ohio St.Bar 

Assn. Rep. 727, 728 (1970). See also Havel v. Villa St. Joseph, 131 Ohio St.3d 

235, 2012-Ohio-552, 963 N.E.2d 1270, ¶ 2 (Modern Courts Amendment conferred 

authority on this court “to promulgate rules relating to matters of procedure in 

courts of Ohio”). The amendment empowered this court—not the General 

Assembly—with rulemaking authority. Id. “The power vested in the Court is 

complete,” Corrigan at 728, because the “[p]rocedural rules promulgated pursuant 

to the Modern Courts Amendment supersede conflicting statutes that affect 

procedural matters.” Havel, at ¶ 2. 

{¶ 64} Thereafter, the Supreme Court of Ohio directed the Rules Advisory 

Committee to propose the Ohio Rules of Civil Procedure for its consideration, 

recommending that the Federal Rules of Civil Procedure be the general model. 

Corrigan at 728. Modeling Ohio’s Rules on the Federal Rules was a “distinct 

advantage,” as there was “a considerable body of decisions” interpreting and 

applying the Federal Rules, and some states had adopted similar rules. Id. at 729. 

{¶ 65} The Rules promulgated by the court, effective July 1, 1970, unified 

and simplified the discovery practice that previously “had been based on a 
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conglomerate of statutes, case law and custom. 1970 Staff Notes 1, Civ.R. 26. A 

review of Civ. R. 26 as promulgated in 1970 reveals these roots. 

VIII. Civ.R. 26 as Promulgated in 1970

{¶ 66} Both the original and current Civ.R. 26(A) (in which a reference to 

electronically stored information has been added—otherwise the versions are the 

same) set forth the policy of the rules: 

(A) Policy; discovery methods. It is the policy of these rules 

(1) to preserve the right of attorneys to prepare cases for trial with 

that degree of privacy necessary to encourage them to prepare their 

cases thoroughly and to investigate not only the favorable but the 

unfavorable aspects of such cases and (2) to prevent an attorney 

from taking undue advantage of an adversary's industry or efforts. 

{¶ 67} This language was not contained within the Federal Rules, but was 

a statement of Ohio policy for interpreting the discovery rules. 1970 Staff Notes 2, 

Civ.R. 26. It was taken almost verbatim from the California Code of Civil 

Procedure. See Knepper, Ohio Civil Practice, Section 6.05, at 122 (1975). The 

California legislature added this language “to correct unduly liberal rulings of the 

California courts invading the work product of attorneys.” Id. Knepper opined that 

the provision is supportive of Justice Robert Jackson’s concurring opinion in 

Hickman, 329 U.S. at 514-519, 67 S.Ct. 385, 91 L.Ed. 451, “which emphasized the 

necessity of preserving the independence of the lawyer and the adversary system.” 

Knepper at 122, fn. 60.

{¶ 68} Except for reference to electronically stored material, the language 

of Civ.R. 26(B)(1) and (3) is the same today as when promulgated in 1970. Civ.R. 

23(B)(1) provides the scope of discovery and adopts the liberal philosophy of the 

Federal Rules. However, Civ.R. 26(B)(3) reveals that while liberal, discovery is 
January Term, 2016 

25 

not an entitlement. Civ.R. 26(B)(3) carves out a conditional exception for 

privileged materials—“documents and tangible things prepared in anticipation of 

litigation or for trial” by or for the adverse party or party’s representative, including 

counsel. As discussed above, the recognition of these materials as falling within the 

definition of privileged materials and therefore excluded from discovery unless 

good cause is demonstrated finds its roots in case law. See In re Hyde, 149 Ohio 

St. 407, 79 N.E.2d 224 (1948), paragraph one of the syllabus (reports concerning 

accident involving company vehicle are privileged when made in course of business 

and turned over to company’s legal counsel); In re Keough, 151 Ohio St. 307, 85 

N.E.2d 550 (1949), paragraph two of the syllabus (same). Moreover, while 

liberalizing the discovery practice, Civ. R. 26(B)(3) “does not destroy the privacy 

of the attorney’s mental impressions or the concept that each side should prepare 

its case independently. It does not allow the lazy lawyer to automatically have the 

fruits of the work of the diligent lawyer.” 1970 Staff Note 3(c), Civ.R. 26(B)(1). 

XI. Shortcomings of the Court Position 

{¶ 69} The court opinion’s analysis fails to perceive the larger picture. It 

does not recognize that the protection provided by the work-product doctrine 

originated in English, federal, and Ohio common law. Accordingly, under the court 

opinion’s reasoning, a discovery order alleging a breach of this protection would 

not require a showing under R.C. 2505.02(B)(4)(b) beyond the trial court’s 

statement that the matter is privileged. Court opinion at ¶ 2. 

{¶ 70} Moreover, the court opinion does not appreciate that the workproduct doctrine provides protection outside the scope of Civ.R. 26(B)(3) (trial 

preparation-materials): 

 While the protections for attorney work product provided in 

Civ.R. 26(B)(3) expressly apply to “documents, electronically 

stored information and tangible things prepared in anticipation of 
SUPREME COURT OF OHIO

26

litigation,” protection also extends to intangible work product. 

Hickman, 329 U.S. at 511, 67 S.Ct. 385, 91 L.Ed. 451; In re Cendant 

Corp. Securities Litigation (C.A.3, 2003), 343 F.3d 658, 662; United 

States v. One Tract of Real Property (C.A.6, 1996), 95 F.3d 422, 

428, fn. 10; 8 Wright, Miller, Kane & Marcus, Federal Practice and 

Procedure (3d Ed.2009), Section 2024. The protection for 

intangible work product exists because “[o]therwise, attorneys’ files 

would be protected from discovery, but attorneys themselves would 

have no work product objection to depositions.” In re Seagate 

Technology, L.L.C. (C.A.Fed., 2007), 497 F.3d 1360, 1376. 

Squire, 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, at ¶ 58. Resolution 

of this category of work-product doctrine disputes is by common law. So again, 

under the court opinion’s reasoning, an order arising from this situation would 

qualify as a discovery order that would need only the statement that the matter is 

privileged to meet the final-appealable-order requirement of R.C. 

2505.02(B)(4)(b). Court opinion at ¶ 2. 

{¶ 71} The court opinion is also diminishing the significance of our 

procedural rules, which draw their authority from the Ohio Constitution. As set 

forth above, Article IV, Section 5(B) was added to the Ohio Constitution pursuant 

to the 1968 Modern Courts Amendment and conferred upon this court the authority 

to promulgate rules of procedure. Havel, 131 Ohio St.3d 235, 2012-Ohio-552, 963 

N.E.2d 1270, ¶ 2. The procedural rules are controlling unless the General Assembly 

enacts a conflicting law affecting a substantive right. See Morris v. Morris, __ Ohio 

St.3d __, 2016-Ohio-5002, __ N.E.2d __, ¶ 43. Moreover, procedural rules 

“supersede conflicting statues that affect procedural matters.” Havel at ¶ 2. 

Additionally, under the court opinion’s reasoning, a discovery order alleging a 

breach of the work-product protection would not require a showing under R.C. 
January Term, 2016 

27 

2505.02(B)(4)(b) beyond the mere statement that the matter is privileged, as the 

authority for the promulgation of Civ.R. 26 is the Ohio Constitution. Court opinion 

at ¶ 19. 

{¶ 72} The short shrift with which the court opinion treats the work-product 

privilege, an interrelated and vital aspect of the administration of justice in the 

protection of the attorney and client relationship, is alarming. As Hickman states: 

 Historically, a lawyer is an officer of the court and is bound 

to work for the advancement of justice while faithfully protecting 

the rightful interests of his clients. In performing his various duties, 

however, it is essential that a lawyer work with a certain degree of 

privacy, free from unnecessary intrusion by opposing parties and 

their counsel. Proper preparation of a client’s case demands that he 

assemble information, sift what he considers to be the relevant from 

the irrelevant facts, prepare his legal theories, and plan his strategy 

without undue and needless interference. That is the historical and 

the necessary way in which lawyers act within the framework of our 

system of jurisprudence to promote justice and to protect their 

clients’ interests. This work is reflected, or course, in interviews, 

statements, memoranda, correspondence, briefs, mental 

impressions, personal beliefs, and countless other tangible and 

intangible ways—aptly though roughly termed * * * the “ ‘[w]ork 

product of a lawyer.’ ” Were such materials open to opposing 

counsel on mere demand, much of what is now put down in writing 

would remain unwritten. An attorney’s thoughts, heretofore 

inviolate, would not be his own. Inefficiency, unfairness and sharp 

practices would inevitably develop in the giving of legal advice and 

in the preparation of cases for trial. The effect on the legal 
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28

profession would be demoralizing. And the interests of the clients 

and the cause of justice would be poorly served. 

 We do not mean to say that all written materials obtained or 

prepared by an adversary’s counsel with an eye toward litigation are 

necessarily free from discovery in all cases. Where relevant and 

non-privileged facts remain hidden in an attorney’s file and where 

production of those facts is essential to the preparation of one’s case, 

discovery may properly be had. * * * But the general policy against 

invading the privacy of an attorney’s course of preparation is so well 

recognized and so essential to an orderly working of our system of 

legal procedure that a burden rests on the one who would invade that 

privacy to establish adequate reasons to justify production through 

a subpoena or court order. 

329 U.S. at 510-512, 67 S.Ct. 385, 91 L.Ed. 451. 

{¶ 73} With this decision, the court opinion systematically declares that a 

document allegedly privileged under the work-product doctrine does not meet the 

standard established in R.C. 2505.02(B)(4)(b) unless some special showing is 

somehow made. Given that Civ.R. 26 provides protection to a broad class of 

documents and materials, the release of privileged documents necessarily puts the 

party protecting these materials into the category of those “not * * * afforded a 

meaningful or effective remedy by an appeal following final judgment.” A released 

document never regains privileged status. The “proverbial bell cannot be unrung.” 

See Muncie, 91 Ohio St.3d at 451, 746 N.E.2d 1092. 

 X. Smith v. Chen Should Be Overruled 

{¶ 74} The diminution in status of the work-product privilege by the court 

opinion will in my view cause irreparable harm. Moreover, this decision will not 

settle the law that has now been upended. Limiting Chen as applying only to an 
January Term, 2016 

29 

asserted privilege for work-product materials and not to materials covered by 

attorney-client privilege is without basis, and the folly of that exercise will been 

seen in the litigation that is sure to follow. The only proper way to resolve the 

problem that we have created is to apply Galatis, 100 Ohio St.3d 216, 2003-Ohio5849, 797 N.E.2d 1256, paragraph one of the syllabus, to overrule Chen: “A prior 

decision of the Supreme Court may be overruled where (1) the decision was 

wrongly decided at that time, or changes in circumstances no longer justify 

continued adherence to the decision, (2) the decision defies practical workability, 

and (3) abandoning the precedent would not create an undue hardship for those who 

have relied upon it.” 

{¶ 75} First, Chen was wrongly decided. Without warning, Chen overruled 

long-established precedent in every Ohio appellate district. Chen, 142 Ohio St.3d 

411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 14 (Kennedy, J., dissenting). Indeed, 

the court opinion relies on precedent that also rejects the analysis and holding of 

Chen. Court opinion at ¶ 20, citing Muncie, 91 Ohio St.3d at 446, 746 N.E.2d 1092. 

{¶ 76} Second, Chen has proven difficult to apply. Chen offers no guidance 

as to what R.C. 2505.02(B)(4)(b) requires in order to render an appeal of an order 

compelling disclosure of allegedly privileged material “truly * * * meaningless.” 

(Emphasis sic.) Chen at ¶ 9. And this decision limiting Chen to claims of privilege 

regarding material sought under the work-product doctrine does not offer any 

enlightenment. 

{¶ 77} Finally, since Chen was decided last year and has been inconsistently 

applied by the lower courts, the number of cases seeking clarification from us 

continues to grow. See, e.g., In re Grand Jury Proceedings of Doe, jurisdiction 

accepted at __ Ohio St.3d __, 2016-Ohio-467, __ N.E.3d __; Mentor Way Real 

Estate Partnership v. Hertanu, jurisdiction declined at __ Ohio St.3d __, 2016-

Ohio-5792, __ N.E.3d __; and Branche v. Motorists Mut. Ins. Co., jurisdiction 

declined at __ Ohio St.3d __, 2016-Ohio-7877, __ N.E.3d __. Overruling Chen
SUPREME COURT OF OHIO

30

would return stability to the law. Consequently, Chen’s demise will not create an 

undue hardship. 

{¶ 78} As a result of the court opinion’s disparate treatment of privileged 

documents, I predict three outcomes. First, Ohio lawyers will now have to gauge 

the risk of creating and preparing documents and materials. Second, the cost of 

protecting privileged materials will significantly increase as litigants expend large 

sums to protect the work product of their attorneys. Third, this court will continue 

to distinguish Chen “to the vanishing point, creating an illusion of certainty in the 

law while leaving only a shadow of an ancient landmark.” United Gas 

Improvement Co. v. Continental Oil Co., 381 U.S. 392, 406, 85 S.Ed. 1517, 14 

L.Ed.2 466 (Douglas, J., dissenting). However, “[a]s far as I am aware, the public 

is not under the illusion that we are infallible. I see little harm in admitting that we 

made a mistake * * *.” Dickerson v. United States, 530 U.S. 428, 464, 120 S.Ct. 

2326, 147 L.Ed.2d 405 (2000) (Scalia, J., dissenting). 

{¶ 79} Because I would overrule Chen in accordance with Galatis, 100 

Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, and restore the stability and 

predictability to the law as it existed before Chen, I concur in judgment only. 

 O’DONNELL and FRENCH, JJ., concur in the foregoing opinion. 

_________________ 

PFEIFER, J., dissenting. 

{¶ 80} I dissent from elevating the incident report in this case to the exalted 

status of being the product of attorney-client privilege, requiring the immediate 

intervention of the appellate court to protect the Cleveland Clinic from what 

exactly—the disclosure of its top-secret ratio of water to Mop & Glo? This was a 

run-of-the-mill, wet-floor, slip-and-fall case that generated an automatically 

produced report, a business record that involved in its production no interaction 

between the client and its in-house or outside counsel; its purpose was to notify the 

risk-management and law departments of an event that might result in legal action. 
January Term, 2016 

31 

{¶ 81} “Trial courts * * * have extensive jurisdiction over discovery, 

including inherent authority to direct an in camera inspection of alleged privileged 

materials * * *.” State ex rel. Abner v. Elliott, 85 Ohio St.3d 11, 16, 706 N.E.2d 

765 (1999). The trial court did its job here and found the report to not be privileged; 

its decision can be reviewed on appeal in due course without doing damage to the 

sanctity of the attorney-client privilege. 

_________________ 

Obral, Silk & Associates, L.L.C., Alexander L. Pal, and Thomas J. Silk, for 

appellee. 

Bonezzi, Switzer, Polito & Hupp Co. L.P.A., Bret C. Perry, and Jason A. 

Paskan, for appellants. 

Reminger Co., L.P.A., and Martin T. Galvin, urging reversal for amicus 

curiae Academy of Medicine of Cleveland & Northern Ohio. 

Bricker & Eckler L.L.P, Anne Marie Sferra, and Kara Herrnstein, urging 

reversal for amici curiae Ohio Hospital Association and Ohio State Medical 

Association. 

Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for 

amicus curiae Ohio Association for Justice. 

_________________