[Cite as Lytle v. Mathew, 2014-Ohio-1606.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

CAROL LYTLE, ADMINISTRATIX OF 

THE ESTATE OF TRACY J. LYTLE 

 Appellant 

 v. 

SHILA MATHEW, et al. 

 Appellants 

C.A. No. 26932 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV2012-02-0809 

DECISION AND JOURNAL ENTRY

Dated: April 16, 2014 

 

BELFANCE, Presiding Judge. 

{¶1} Plaintiff-Appellant Carol Lytle, individually and as the administratrix of the estate 

of Tracy Lytle appeals the ruling of the Summit County Court of Common Pleas denying her 

motion to quash a subpoena and motion for a protective order. 

I. 

{¶2} In 2004, Tracy Lytle was working for Tremont, Inc. as a driver and was injured in 

an automobile accident. The injuries required her to receive medical and psychological 

treatment from various medical professionals. That treatment included prescription medications. 

Tracy Lytle sought and received temporary total disability benefits from the Bureau of Workers’ 

Compensation related to her workplace injury. Attorney Natalie Grubb represented Tracy Lytle 

in filing her claim for Workers’ Compensation benefits. At the time of her death in February 

2010, Tracy Lytle and Attorney Grubb were being investigated for Workers’ Compensation 
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fraud. It was contended that Tracy Lytle was working for Attorney Grubb while receiving 

benefits. 

{¶3} In February 2012, Carol Lytle filed a wrongful death complaint against Shila 

Mathew, M.D., Konstantin Kushnir, M.D., Kaiser Foundation Health Plan of Ohio, Ohio 

Permanente Medical Group, Inc., CareWorks of Ohio, Ltd., Discount Drug Mart, Inc., 

Brunswick Orthopedics, Inc., and John Does 1-10. The complaint alleged that Tracy Lytle’s 

death was the proximate result of the Defendants’ negligent failure to ensure that the medications 

prescribed to her did not pose a high risk of a negative drug interaction. Additionally, Carol 

Lytle asserted that the negligence of CareWorks of Ohio, Ltd. and Discount Drug Mart, Inc. in 

the failure to follow proper protocols in dispensing prescription medication caused Tracy Lytle’s 

death. In April 2012, Carol Lytle dismissed her claims against CareWorks of Ohio, Ltd. without 

prejudice. 

{¶4} Attorneys for the named Defendants sought to depose Attorney Grubb and obtain 

certain documents from her related to her employment of Tracy Lytle. The Defendants wished 

to explore the possibility that stress from Tracy Lytle’s involvement in the Workers’ 

Compensation fraud investigation caused or contributed to her death. They issued a subpoena 

directing that Attorney Grubb bring with her to the deposition “[a]ny and [a]ll records of 

employment of Tracy Lytle and any and all cancelled checks, bank ledgers, bank statements, or 

any other documents that relate to compensation to Tracy Lytle from Natalie F. Grubb or Grubb 

& Associates, LPA.” 

{¶5} Attorney Grubb filed a motion to quash the subpoena and a motion for a 

protective order.1

 The motion asserted both that the materials sought to be obtained were 

 1

 Attorney Grubb also represented Carol Lytle in the wrongful death suit. 
3 

 

irrelevant and that Attorney Grubb’s conversations were protected by attorney-client privilege. 

The Defendants opposed the motion maintaining that the subpoena was reasonably calculated to 

lead to the discovery of admissible evidence and that the crime-fraud exception to the attorneyclient privilege applied. The trial court conducted an oral hearing on the matter and at the end of 

the hearing denied the motions. After the hearing, that same day, Discount Drug Mart, Inc. filed 

supplemental exhibits in support of its opposition to the motion to quash and for a protective 

order. In its written entry filed two days later, the trial court concluded the material was relevant 

and that the crime-fraud exception to the attorney-client privilege applied and thus, the 

conversations between Attorney Grubb and Tracy Lytle in furtherance of the crime/fraud were 

not privileged. The entry specifically mentions and relies upon information from the 

supplemental exhibits and compels Attorney Grubb to disclose the documents and submit herself 

to deposition. 

{¶6} Carol Lytle thereafter filed the instant appeal raising a single assignment of error 

for our review. 

II. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

OVERRULED APPELLANT’S MOTION TO QUASH SUBPOENA AND 

COMPELLED ATTORNEY NATALIE GRUBB TO SUBMIT TO 

APPELLEES’ DEPOSITION AND DOCUMENT REQUESTS. 

{¶7} In her sole assignment of error, Carol Lytle asserts that the trial court erred in 

overruling Attorney Grubb’s motion to quash and motion for a protective order. 

{¶8} As a preliminary matter, this Court is obligated to raise sua sponte questions 

related to its jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co., Inc., 29 Ohio St.2d 184, 
4 

 

186 (1972). This Court has jurisdiction to hear appeals only from final judgments. Article IV, 

Section 3(B)(2), Ohio Constitution; R.C. 2505.02. 

{¶9} Orders regarding discovery are considered interlocutory and, in general, are not 

immediately appealable. Walters v. Enrichment Ctr. of Wishing Well, Inc., 78 Ohio St.3d 118, 

120-121 (1997). R.C. 2505.02(B)(4) states that 

[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, 

with or without retrial, when it is * * * [a]n 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. 

The legislature has defined provisional remedy as including, but not limited to, “a proceeding for 

a preliminary injunction, attachment, discovery of privileged matter, [or] suppression of evidence 

* * *.” R.C. 2505.02(A)(3). This Court has held that “an order requiring production of 

privileged materials may constitute a final, appealable order.” Callahan v. Akron Gen. Med. 

Ctr., 9th Dist. Summit No. 22387, 2005-Ohio-5103, ¶ 28. 

{¶10} In her motion in the trial court, Attorney Grubb asserted both that the discovery 

was irrelevant and that the conversations between Attorney Grubb and Tracy Lytle were 

privileged under the attorney-client privilege, and therefore, she was not subject to deposition. 

To the extent Attorney Grubb’s motion was based upon a relevancy argument, and to the extent 

the trial court concluded that the discovery was relevant, the trial court’s ruling is not appealable. 

Hope Academy Broadway Campus v. White Hat Mgt., LLC., 10th Dist. Franklin No. 12AP-116, 

2013-Ohio-911, ¶ 43 (“[T]o the extent an order pertains to matters other than those concerning 

discovery of privileged matters, the order is deemed interlocutory and therefore not final and 
5 

 

appealable.”) (Internal quotations and citation omitted.). “Consistent with this reasoning, 

appellate courts have declined to consider arguments that materials to be produced under a 

discovery order were not relevant.” Id. 

{¶11} Notably, it does not appear that any argument was developed below, or on appeal, 

explaining why the documents requested were privileged under the attorney-client privilege. 

Instead counsel’s argument seemed to focus on the notion that they were irrelevant. The 

subpoena sought “[a]ny and [a]ll records of employment of Tracy Lytle and any and all 

cancelled checks, bank ledgers, bank statements, or any other documents that relate to 

compensation to Tracy Lytle from Natalie F. Grubb or Grubb & Associates, LPA.” Carol Lytle 

has not explained how documents pertaining to the employment of Tracy Lytle by Attorney 

Grubb would be protected by the attorney-client privilege. See App.R. 16(A)(7). We fail to see 

how such documents would implicate the attorney-client relationship, and absent any developed 

argument on the issue, we decline to create one for her. See Cardone v. Cardone, 9th Dist. 

Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). 

{¶12} However, this Court will consider the merits of Carol Lytle’s contention that the 

conversations between Attorney Grubb and Tracy Lytle were protected by attorney-client 

privilege, thus preventing Attorney Grubb to be subject to deposition. Essentially, it appears the 

trial court concluded that the communications between Attorney Grubb and Tracy Lytle were 

privileged but that the crime-fraud exception applied to remove the protections of the attorneyclient privilege.2

 

 2

 We note that it is questionable whether all of Attorney Grubb’s and Tracy Lytle’s 

conversations were protected by the attorney-client privilege in light of the assertion that Tracy 

Lytle worked for Attorney Grubb. However, that argument has not been made in this Court. 
6 

 

{¶13} “[I]n Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), 

and in cases that are not addressed in R.C. 2317.02(A), by common law.” (Internal quotations 

and citation omitted.) Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio 

St.3d 161, 2010-Ohio-4469, ¶ 17. “R.C. 2317.02(A) provides a testimonial privilege – i.e., it 

prevents an attorney from testifying concerning communications made to the attorney by a client 

or the attorney’s advice to a client. A testimonial privilege applies not only to prohibit testimony 

at trial, but also to protect the sought-after communications during the discovery process.” 

(Internal quotations and citation omitted.) Id. at ¶ 18. 

{¶14} Nonetheless, the Supreme Court of Ohio has “previously recognized several 

exceptions to the attorney-client privilege codified by R.C. 2317.02(A) notwithstanding their 

absence from the statutory text.” Id. at ¶ 24. One such exception is the crime-fraud exception. 

See id. at ¶ 27. Thus, “the privilege does not attach in a situation where the advice sought by the 

client and conveyed by the attorney relates to some future unlawful or fraudulent transaction.” 

Id. “‘[A] communication is excepted from the attorney-client privilege if it is undertaken for the 

purpose of committing or continuing a crime or fraud.’” Id. at ¶ 28, quoting State ex rel. Nix v. 

Cleveland, 83 Ohio St3d. 379, 383 (1998). “‘[A] party invoking the crime-fraud exception must 

demonstrate that there is a factual basis for a showing of probable cause to believe that a crime or 

fraud has been committed and that the communications were in furtherance of the crime or 

fraud.’” Givaudan Flavors Corp. at ¶ 28, quoting State ex rel. Nix at 384. Upon making the 

appropriate showing, not all communications between the attorney and client are excepted from 

the attorney-client privilege, rather only those which are undertaken for the purpose of 

committing or continuing a crime or fraud. See Givaudan Flavors Corp. at ¶ 28, quoting State 

ex rel. Nix at 383 (stating that “‘[a] communication is excepted from the attorney-client privilege 
7 

 

if it is undertaken for the purpose of committing or continuing a crime or fraud.’”) (Emphasis 

added.) 

{¶15} The problem in this case is that the Defendants never submitted any evidentiary 

materials demonstrating the applicability of the crime-fraud exception prior to the hearing or 

even at the hearing. No witnesses were called at the hearing, and no one present was sworn in. 

Instead, information relevant to the crime-fraud exception was relayed to the trial court only 

through the argumentation of the Defendants’ attorneys and was not based upon personal 

knowledge. See State ex rel Nix. at 384 (in concluding that relators failed to introduce sufficient, 

credible evidence to overcome the attorney-client privilege based on the crime-fraud exception, 

the Supreme Court noted that the “evidence consist[ed] mostly of affidavits replete with 

allegations based on belief and speculation rather than on personal knowledge[]”). The 

Defendants’ attorneys discussed the fact that Tracy Lytle was interviewed by Bureau of 

Workers’ Compensation investigators and that she ultimately admitted to working illegally for 

Attorney Grubb while receiving benefits; however, the Defendants’ attorneys’ recitations of what 

the investigation revealed are not evidence and certainly not evidence of the kind envisioned by 

the Supreme Court in State ex rel. Nix. See id. The fact that everyone was aware of, and knew 

that, this information existed did not transform that information into evidence. 

{¶16} At the end of the hearing, the trial court concluded that the crime-fraud exception 

was applicable and that Attorney Grubb would be required to submit to a deposition and answer 

questions related to the Workers’ Compensation fraud allegations. Following the hearing, that 

same day, Defendant Drug Mart, Inc. submitted supplemental exhibits including documents 

which appear to be from the Bureau of Workers’ Compensation investigation. It is also clear 

that, in issuing its written ruling two days later, the trial court relied upon those documents in 
8 

 

concluding the crime-fraud exception applied.3 The problem with the trial court considering 

those exhibits is that Carol Lytle was not provided any opportunity to respond or object to the 

trial court’s consideration of those exhibits. Given that the certificate of service states that the 

supplemental exhibits were sent to Attorney Grubb via regular mail, it is questionable whether 

they would have even received the exhibits at the point in time when the trial court issued its 

ruling based in part on information contained in those exhibits. While Attorney Grubb asserted 

at the hearing that information from those exhibits should not be considered there was never any 

indication at the hearing that the exhibits themselves would be submitted as evidence. Drug 

Mart, Inc. did not indicate on the record at the hearing that it was going to submit materials to 

support its allegation that the crime-fraud exception applied, nor was there any discussion or 

admission of exhibits at the hearing. Accordingly, we conclude that the trial court erred in 

issuing its ruling prior to giving Attorney Grubb the opportunity to respond to Drug Mart, Inc.’s 

submission of supplemental exhibits, which the trial court relied on in issuing its ruling. See In 

re Brothers Publishing Co., L.L.C., 2d Dist. Darke No. 2013-CA-6, 2014-Ohio-133, ¶ 32-33; see 

also Smith v. Ray Esser & Sons, Inc., 9th Dist. Lorain No. 10CA009798, 2011-Ohio-1529, ¶ 15-

16 (noting that a reply brief should not set forth new arguments and, if it does, a party should be 

given the opportunity to respond in some manner to the new argument prior to the trial court’s 

ruling on the motion for summary judgment). We sustain in part Carol Lytle’s assignment of 

error and remand the matter so that she can respond the supplemental exhibits filed by Drug 

Mart, Inc. 

 3

 Absent these exhibits, the trial court did not have any evidence before it concerning the 

applicability of the crime-fraud exception aside from Ms. Grubb’s acknowledgment at the 

hearing that she had pleaded guilty to misdemeanor aiding and abetting Workers’ Compensation 

fraud. 
9 

 

III. 

{¶17} In light of the foregoing, we dismiss this appeal to the extent Carol Lytle appeals 

the trial court’s relevancy determinations and conclude the trial court erred in issuing its written 

ruling on the motion to quash prior to allowing her to respond the filing of supplemental exhibits 

that were utilized in the trial court’s ruling. 

Appeal dismissed in part, 

judgment reversed in part, 

and cause remanded. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed equally to all parties. 

 

 EVE V. BELFANCE 

 FOR THE COURT 
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HENSAL, J. 

WHITMORE, J. 

CONCUR.

APPEARANCES:

NATALIE F. GRUBB and DANIEL A. KIRSCHNER, Attorneys at Law, for Appellant. 

RUSSELL D. KORNBLUT, Attorney at Law, for Appellant. 

LOUIS M. DEMARCO and JAMES J. REAGAN, Attorneys at Law, for Appellee. 

JEFFREY VAN WAGNER and CLAIRE C. CURTIS, Attorneys at Law, for Appellee. 

THOMAS KILBANE and MICHELLE J. SHEEHAN, Attorneys at Law, for Appellee.