[Cite as McFarland v. W. Congregation of Jehovah’s Witnesses, Lorain, Ohio, Inc. , 2016-Ohio-5462.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

ELIZABETH MCFARLAND Appellee

v. WEST CONGREGATION OF JEHOVAH'S WITNESSES, LORAIN, OH, INC., et al. Appellants C.A. No. 15CA010740

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 13CV181057

DECISION AND JOURNAL ENTRY Dated: August 22, 2016

WHITMORE, Judge. {¶1} Defendant-Appellants, West Congregation of Jehovah’s Witnesses, Lorain, Ohio, Inc. (“West Congregation”), Watchtower Bi ble and Tract Society of New York, Inc. (“Watchtower”), and Christian Congregation of Jehovah’s Witnesses (“Ch ristian Congregation”) (collectively, “Appellants”), appeal from the order of the Lorain County Court of Common Pleas, granting a portion of Plaintiff-Appellee, Elizabeth McFarland’s, motion to compel the production of certain documents. This Court affirms in part and reverses in part.

I {¶2} West Congregation is one of many lo cal Jehovah’s Witnesses congregations throughout the country. Each local congregation has members who have been elevated to serve as elders for their particular congregation. The B odies of Elders at each congregation have many responsibilities, including disciplining any member s who have engaged in wrongful behavior.2

Additionally, the Bodies of Elders receive in structions from and communicate directly with

several national entities the Jehova h’s Witnesses operate to provi de leadership and maintain consistency among the local congregations. {¶3} Prior to 2001, Watchtower was responsible for disseminating literature to the

Bodies of Elders at each local congregation. Christian Congregation usurped that responsibility in 2001 and, since then, has regularly distributed to the Bodies of Elders letters instructing the elders as to the appropriate way to address various issues within their respective congregations. Additionally, Christian Congregation maintains a Service Department that is staffed with elders who serve at the national level. Both members and elders of local congregations may call or write to elders in the Service Department to seek their guidance on a particular issue. Service Department elders then may respond in kind, by providing guidance either over the phone or through a letter. {¶4} From 1997 to 2001, when she was between ten and fourteen years of age, McFarland was a member of West Congregation. Scott Silvasy was another member of the congregation during a portion of that time pe riod. Appellants concede that Silvasy was disfellowshipped twice from the congregation: once between June 1995 and April 1996 and once between October 1998 and February 2000. 1 They also concede that, at some point, “Silvasy informed an elder that, prior to his becoming one of Jehovah’s Witnesses, he had a minor female touch him inappropriately.” According to Mc Farland, Silvasy molested her over a period of several years before she finall y disclosed the abuse to her pa rents in 2001. McFarland alleges that her parents told the elders at West Cong regation about the abuse, but they neglected to

1 When a Jehovah’s Witness is disfellowshipped, he or she is no longer considered a practicing member of the faith or his or her congregation. A person who has been disfellowshipped can later seek reinstatement.3

discipline Silvasy or to report the matter and di scouraged her parents from doing so. Silvasy died in February 2003. {¶5} In 2013, McFarland brought suit against Appellants for negligence, ratification, and fraud by omission/concealment . McFarland alleged that Appellants were aware that Silvasy had previously molested a minor and was a danger to her, but failed to take measures to protect

her from his abuse and ratified his conduct by responding inappropriately once she reported the abuse. McFarland sought both compensatory and punitive damages from Appellants, alleging that they acted with intentional, malicious, and/or reckless disregard for her welfare. {¶6} After discovery commenced, McFarland serv ed Watchtower with a request for the production of certain documents. Included within that filing wa s a request that Watchtower produce “ALL DOCUMENTS received by YOU in re sponse to the Body of Elders letter dated March 14, 1997.” There is no dispute that the lett er in question was a letter from Watchtower to

the Bodies of Elders at each local congregation, regarding child molestation, the identification of child molesters, and the steps local elders should take to protect children within the congregation from harm. The letter specifically asked the el ders to supply Watchtower with reports “on anyone who is currently serving or who formerly served in a Society-appointed position in your congregation who is known to have been guilty of child molestation in the past.” In her discovery request, McFarland sought the reports Watchtower received in response to its letter. {¶7} Watchtower raised several objections to McFarland’s request. After the two were unable to resolve the matter themselves, Watchtower filed a motion for a protective order. Watchtower argued, among other things, that th e reports McFarland sought would not advance her case against Appellants because Silvasy ne ver served in a “Society-appointed position.” McFarland responded to Watchtower’s motion, and Watchtower filed a reply. The court4

ultimately determined that McFarland’s request was overbroad. It also wrote, however, that any reports that actually pertained to Silvasy were relevant. Consequen tly, the court granted Watchtower’s motion in part, but also ordered it to provide McFarland with “ unredacted copies of any and all reports by the body of elders at West Congregation to Defendant Watchtower concerning Scott Silvasy * * *.” {¶8} Following the court’s order, the par ties once again found themselves in a discovery dispute. Of interest to this appeal, McFarland sought (1) all letters that Watchtower/Christian Congregation issued to the Bodies of Elders between January 1, 1980, and December 31, 2002, and (2) any documents Appellant s had in their possession that related to Silvasy and/or herself. As to the latter, it was McFarland’s position that the court, in ruling on Watchtower’s motion for a protective order, had ordered Appellants to produce unredacted copies of any documents that related to Silvasy. Meanwhile, it was Appellants’ position that the court had only ordered them to produce any re ports that West Congregation had issued on Silvasy after receiving the March 14, 1997 letter fr om Watchtower. Because there were no such reports, Appellants argued that they had comp lied with the court’s order. They opposed McFarland’s discovery requests on the basis of clergy-penitent privilege, attorney-client privilege, and the First Amendment. Additionally, they challenged the scope of McFarland’s requests, noting that they were not specifically tailored to the time period of her alleged abuse. {¶9} McFarland ultimately filed a motion to compel the production of the documents she sought. Appellants opposed her motion, but also filed under seal all of the documents they identified as being at issue. McFarland then filed a reply brief. Following an in camera review of the sealed documents, the court issued its d ecision. The court granted McFarland’s motion to compel in part and ordered A ppellants to produce: (1) ten lette rs from the Service Department5

elders at Watchtower to the B odies of Elders at the local c ongregations; and (2) fifteen other documents that Appellants described as either le tters or memoranda sent, received, or transcribed by West Congregation elders, Service Departme nt elders, and non-parties to the litigation. Appellants then immediately appealed from the trial court’s order. {¶10} Appellants have appealed fro m the court’s order with respect to nineteen of the documents it ordered them to produce. Those nine teen documents are four of the ten letters from Service Department elders to the Bodies of Elders (“the Bodies of Elders letters”) and all fifteen of the remaining documents that Appellants described as either letters or memoranda. Appellants raise two assignments of error for our review.

II Assignment of Error Number One

THE TRIAL COURT ERRED WHEN IT ORDERED PRODUCTION OF DOCUMENTS PROTECTED FROM DISCOVERY BY THE CLERGYPENITENT PRIVILEGE AND THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION. {¶11} In their first assignment of error, Appellants argue that the trial court erred when it ordered them to produce nineteen documents for purposes of discovery. Specifically, they argue that the documents are protected from discovery by virtue of either the clergy-penitent privilege or the First Amendment. {¶12} “In general, discovery orders are re viewed under an abuse-of-discretion

standard.” Med. Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181, 2009-Ohio-2496, ¶ 13. That is because “courts have broad discretion over discovery matters.” State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register , 116 Ohio St.3d 88, 2007-Ohio-5542, ¶ 18. “However, the Supreme Court of Ohio has concl uded that the issue of whether [] information sought is confidential and privile ged from disclosure is a question of law that should be reviewed6

de novo.” Price v. Karatjas , 9th Dist. Summit No. 25361, 2011-Ohio-1048, ¶ 8, citing

Schlotterer at ¶ 13. Because the issue on appeal is whether the nineteen documents that Appellants filed under seal are pr ivileged and/or confidential, we review this matter de novo.

See Price at ¶ 8. “A de novo review requires an indepe ndent review of the tr ial court’s decision without any deference to the tr ial court’s dete rmination.” State v. Consilio , 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4. Clergy-Penitent Privilege {¶13} R.C. 2317.02(C) codifies the clergy-penite nt privilege in Ohio. The statute provides, in relevant part, that [a] cleric, when the cleric remains accountab le to the authority of that cleric’s church, denomination, or sect, [shall not te stify] concerning a confession made, or any information confidentially communicated, to the cleric for a religious counseling purpose in the cler ic’s professional character. R.C. 2317.02(C)(1). The clergy-penitent privilege generally may be waived either by express consent of the penitent or by opera tion of law under R.C. 2151.421(A)(4)(c). Id. Neither form of waiver applies, however, if the cleric’s disclo sure would violate a sacred trust, as defined in R.C. 2317.02(C)(2)(b). Id. The privilege “recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive [spiritual] consolation and guidance in return.” Trammel v. United States , 445 U.S. 40, 51 (1980). Nevertheless, “being in derogation of the common law, any statutory privilege must be strictly construed against the party seek ing to assert it and may be applied only to those circumstances specifically named in the statute.” Ward v. Summa Health Sys. , 128 Ohio St.3d 212, 2010-Ohio-6275, ¶ 15. “The party claiming the pr ivilege has the burden of proving that the privilege applies to the requested information.” Giusti v. Akron Gen. Med. Ctr. , 178 Ohio App.3d 53, 2008-Ohio-4333, ¶ 17 (9th Dist.).7

{¶14} As previously noted, Appellants seek to have nineteen separate documents protected from disclosure by virt ue of the clergy-penitent privilege . Four of those documents are the Bodies of Elders letters. The remaining fifteen are letters/memoranda sent, received, or transcribed by West Congregation elders, Serv ice Department elders, and non-parties to the litigation. We consider each se t of documents in turn.

The Bodies of Elders Letters {¶15} The Bodies of Elders letters were draf ted by Service Department elders at

Watchtower and addressed to all of the Bodi es of Elders on March 10, 1983; September 20, 1984; March 15, 1987; and January 15, 1990, respectively. The four letters provide instructions to elders at local congregations on a variety of topics. Appellants argue that the letters are privileged because they were “used to convey scri pturally based advice, guidance, and direction from the Elders in the Service Department to the Elders serving local congregations to assist the local Elders in shepherding their membership.” In support of their argument, Appellants rely upon the affidavit of Thomas Jefferson, an elder in the Service Department. In his affidavit, Jefferson averred that all Bodies of Elders letters are “strictly confidential communications.” He further averred that the purpose of the letters “is to make application of the Bible-based beliefs, practices, and procedures of Jehovah’s W itnesses on a wide variety of topics.” {¶16} As previously noted, Ohio’s clergy-pen itent privilege only protects “information confidentially communicated” when it is communicat ed to a cleric “for a religious counseling purpose in the cleric’s professional character.” R.C. 2317.02(C)(1). “Although the scope of the [clergy-penitent] privilege varies from State to State, * * * all States at a minimum ‘require that the communications be made in private, with an expectation of confidentiality, to a minister in his or her professional capacity as a member of the clergy.’” (Internal citation omitted.) Varner8

v. Stovall , 500 F.3d 491, 495 (6th Cir.2007), quoting Cassidy, Sharing Sacred Secrets: Is it (Past) Time for a Dangerous Person Exce ption to the Clergy-Penitent Privilege? , 44 Wm. & Mary L.Rev. 1627, 1645 (2003). Appellants concede that the Bodies of Elders letters are letters from one set of elders to another. Accordingly, the letters involve multip le individuals and are not an instance of any particular penitent confid ing in a cleric. Nor are they responsive to any individual inquiry for religious counseling. Fo r instance, they do not represent correspondence between an individual congregation and the Serv ice Department, based on a specific, spiritual inquiry posed by that individual congregation. Th e nature of the letters causes us to question whether they are confidential communications w ithin the meaning of R.C. 2317.02(C)(1). Even assuming that they are, however, we still cannot conclude that they were distributed for the purpose of religious counseling. {¶17} Not every word authored or spoken by a cleric is privileged. See People v. Bragg , 296 Mich.App. 433, 455 (2012), quoting Cox v. Miller , 296 F.3d 89, 106 (2d Cir.2002) (“[A] conversation is not privileged if made ‘with wh olly secular purposes solely because one of the parties to the conversati on happens to be a religious minister. ’”). The clergy-penitent privilege “may be applied only to those circumstances specifically named in the statute.” Ward , 128 Ohio St.3d 212, 2010-Ohio-6275, at ¶ 15. It does not pr otect communications made for secular purposes, even when those communications were intended to be confidential. See id. See also Niemann v. Cooley , 93 Ohio App.3d 81, 88-89 (1st Dist.1994) . Although Appellants contend

that the Bodies of Elders letters were issued for the purpose of conveying scripturally-based advice, the letters themselves are in the nature of administrative direction/instruction. They do not, by this Court’s reading, seek to impart spiritual wisdom. Accordingly, even if the letters

constitute confidential communica tions within the meaning of R.C. 2317.02(C)(1), Appellants9

have not shown that they were distribut ed for a religious counseling purpose. See Giusti , 2008- Ohio-4333, at ¶ 17. Because Appellants have not shown that the letters satisfy the statutory requirements set forth in R.C. 2317.02(C)(1), th e trial court did not err by ordering their production. See Ward at ¶ 15. We reject Appellants’ argument to the contrary. The Remaining Letters/Memoranda {¶18} The remaining fifteen letters/memoranda that the trial court ordered Appellants to produce all post-date the four-year period of abus e that McFarland alleged in her complaint. Consistent with their filing in the court belo w, Appellants have described each letter/memoranda in broad terms and have given a numerical reference for each one. We have reviewed each letter/memoranda and, for ease of discussion, separately analyze each document. Although Appellants numbered the documen ts in reverse chronological order, we analyze them chronologically. i. Letter Dated May 1, 2002 (#197) {¶19} Appellants describe the May 1, 2002 letter as a one-page letter sent from a nonparty to Christian Congregation’s Service Department. Appellants claim that the letter is privileged because the non-party’s purpose in writing it was to seek religious guidance from an elder in the Service Department. Appellants further claim that the letter is privileged because it concerns scriptural discipline. {¶20} As noted, the clergy-penitent privilege only protects confidential communications when they are made to a cleric “for a religi ous counseling purpose * * *.” R.C. 2317.02(C)(1). Strictly construing the privilege as we must, see Ward , 128 Ohio St.3d 212, 2010-Ohio-6275, at ¶ 15, we cannot conclude that the author of th e May 1, 2002 letter sent the letter for the purpose of receiving religious counseling. The author di d not pose any questions to the elders or request10

advice of a spiritual nature. Rather, the author appears to have sent the letter to draw attention to a particular matter and to express the author’s frustration with the handling of that matter. Because the letter was sent for a secular purpose , it is not protected by the clergy-penitent privilege. See Niemann , 93 Ohio App.3d at 88. See also Doe ex rel. Doe v. Catholic Diocese of Rockford , 395 Ill.Dec. 483 (2015), ¶ 56; Commonwealth v. Vital , 83 Mass.App.Ct. 669, 673 (2013); Roman Catholic Diocese of Jackson v. Morrison , 905 So.2d 1213 (2005), ¶ 116-117. {¶21} Appellants also argue that the trial cour t erred when it ordered them to produce the May 1st letter because the letter implicates the privacy rights of third-parties to this litigation. They argue that McFarland does not have a righ t “to discover confidentia l records of non-parties in a private lawsuit.” Yet, the cases upon which Appellants rely concern privileged documents. See, e.g., Roe v. Planned Parenthood Southwest Ohio Reg. , 122 Ohio St.3d 399, 2009-Ohio2973, ¶ 46-52 (privileged medical records); Wozniak v. Kombrink , 1st Dist. Hamilton No. C89053, 1991 WL 17213 (Feb. 13, 1991) (privileged medical records); Doe v. University of

Cincinnati , 42 Ohio App.3d 227 (10th Dist.1988) (privilege d medical records). We have alreadydetermined that the May 1st letter is not privileged, and Appellants have not argued that thirdparties have similar pr ivacy interests in unpr ivileged documents. See App.R. 16(A)(7). This Court will not undertake such an analysis on their behalf. See Cardone v. Cardone , 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998). As such, we reject Appellants’ argument regarding third-party privacy. ii. Letter Dated May 23, 2002 (#196) {¶22} Appellants describe the May 23, 2002 letter as a one-page letter from a Service Department elder to a non-party. In the court below, they further described the letter as a response to the letter the Service Departme nt received from the non-party on May 1, 2002.11

Appellants claim that the letter is privileged because it is in the nature of scriptural assistance. According to Appellants, the letter was “provi ded in response to an express request for religious/spiritual guidance and counsel.” {¶23} The May 23rd letter is a response to the Ma y 1st letter discussed above. It is not information confidentially communicated to a cler ic because it is directed to a non-cleric. Further, it is not responsive to a request for religious counseling. See R.C. 2317.02(C)(1). We have already determined that the May 1st letter is not privileged because it was sent for a secular purpose. Even if the purpose of the May 23rd letter was to provide the author of the May 1st letter with spiritual guidance, the clergy-penitent privilege does not apply to unsolicited religious counseling. Because the author of the May 1st letter did not confide in the Service Department for the purpose of receiving religious counselin g, Appellants have not shown that the Service Department’s response to the le tter satisfies the statutory requirements set forth in R.C. 2317.02(C)(1). See Ward , 128 Ohio St.3d 212, 2010-Ohio-6275, at ¶ 15. Thus, the trial court

did not err when it found that the privilege did not apply to it. {¶24} Appellants also argue that the trial cour t erred when it ordered them to produce the May 23rd letter because the letter implicates the privacy rights of third-parties to this litigation. Appellants have not shown, however, that third- parties have privacy rights in unprivileged documents. See discussion, supra . Because we have determined that the May 23rd letter is not privileged, we reject Appellants’ argument regarding third-party privacy. iii. Letter Dated July 11, 2002 (#195) {¶25} Appellants describe the July 11, 2002 letter as a two-page letter from the Body of Elders at West Congregation to an elder in the Service Department. In the court below, they further described it as a response to a request for information from the Service Department.12

Appellants argue that the letter is privileged because it concerns the “internal discipline of Jehovah’s Witnesses,” and “relays information of another party’s sp iritual confession to

misconduct.” {¶26} As previously noted, statutory privileges must be strictly construed against the party asserting them. Ward at ¶ 15. The clergy-penitent privilege does not protect communications when they serve a secular purpose or are not kept confidential. See R.C. 2317.02(C)(1). The privilege is meant to guard “t he human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive [spiritual] consolation and guidance in return.” Trammel , 445 U.S. at 51. Strictly construing the privilege against A ppellants, we cannot conclude th at it applies to the July 11th

letter. {¶27} The July 11th letter is an answer to an inquiry from the Service Department for certain background information. The letter is not a request for spiritual guidance, but a response sent for the purpose of aiding an investigation. Although it contains information that the Body of Elders at West Congregation learned from third-parties, it is not clear from the letter that the elders received that information by way of a requ est for religious counseling. Accordingly, even assuming that the letter satisfies the conf identiality component of R.C. 2317.02(C)(1), Appellants have not shown that it satisfies the statute’s religious counseling component. See

Giusti , 2008-Ohio-4333, at ¶ 17. The letter was sent fo r a secular purpose, so the clergy-penitent privilege does not apply to it. See Niemann , 93 Ohio App.3d at 88. See also Catholic Diocese of Rockford , 395 Ill.Dec. 483 at ¶ 56; Vital , 83 Mass.App.Ct. at 673; Morrison , 905 So.2d 1213 at ¶ 116-117. Thus, the trial court did not err wh en it found the privilege inapplicable.13

iv. Letter Dated July 28, 2002 (#194) {¶28} Appellants describe the Ju ly 28, 2002 letter as a one-page letter from a non-party elder to an elder in the Service Department. They argue that the letter is privileged because it is a confidential communication “addressing internal church disciplinary matters.” {¶29} By this Court’s reading, the July 28th letter is entirely divorced from any request for religious counseling. Much like the July 11 th letter, the July 28th letter provides certain background information relevant to an investiga tion. Appellants have not shown that the letter serves anything other than a secular purpose. See Guisti at ¶ 17. Accordingly, the trial court did not err when it found that the clergy-penitent privilege did not apply. See Niemann at 88. See also Catholic Diocese of Rockford at ¶ 56; Vital at 673; Morrison at ¶ 116-117. v. Letter Dated August 15, 2002 (#193) {¶30} Appellants describe the August 15, 2002 le tter as a one-page letter from a Service Department elder to the Body of Elders at We st Congregation. They argue that the letter is privileged because it was intended “to make sure th at Scriptural practices were followed and that any violations of Bible-based beliefs were dealt w ith properly.” They further argue that the letter is privileged because it relates to “the inte rnal discipline of the Jehovah’s Witnesses.” {¶31} As previously noted, not every word authored or spoken by a cleric is privileged. See Bragg , 296 Mich.App. at 455, quoting Cox , 296 F.3d at 106 (2d Cir.2002). Much like the July 28th letter, the August 15th letter bears no relationship to any request for religious counseling. The letter acknowledges the receipt of a different letter an d requests additional, factual information from the Body of Elders at West Congregation. Appellants have not shown that the letter serves anything other than a secular purpose. See Guisti at ¶ 17. Accordingly, the14

trial court did not err when it found that the penitent-clergy privile ge did not apply. See Niemann

at 88. See also Catholic Diocese of Rockford at ¶ 56; Vital at 673; Morrison at ¶ 116-117. vi. Letter Dated November 15, 2002 (#192) {¶32} Appellants describe the N ovember 15, 2002 letter as a one-page letter from the Body of Elders at West Congregation to elders at a different congregation who are non-parties to this suit. According to Appellants, the letter is privileged because it represents a “confidential communication from one Body of Elders to anot her requesting spiritual guidance for several non-parties.” {¶33} We do not agree with Appellants’ asser tion that the November 15th letter amounts to a request for spiritual guidance. Upon re view, the letter conveys certain background and

factual information. It does not seek to elicit any response, much less a response for spiritual counseling. Appellants have not shown that th e letter serves anything other than a secular

purpose. See Guisti at ¶ 17. Accordingly, the trial court did not err when it found that the clergy-penitent privilege did not apply. See Niemann at 88. See also Catholic Diocese of Rockford at ¶ 56; Vital at 673; Morrison at ¶ 116-117. {¶34} Appellants also argue that the trial cour t erred when it ordered them to produce the November 15th letter because the letter implicates the privacy rights of third-parties to this litigation. Appellants have not shown, however, that third- parties have privacy rights in unprivileged documents. See discussion, supra . Because we have determined that the November 15th letter is not priv ileged, we reject Appellants’ ar gument regarding third-party privacy.15

vii. Letter Dated February 27, 2003 (#191) {¶35} Appellants describe the February 27, 2003 letter as a one-page letter from a Service Department elder to the Body of Elders at West Congregation. In the court below, they further described it as a letter seeking a respons e to a previous request for information, dated August 15, 2002. Appellants argue that the February 27th letter is privileged, but do so strictly

on the basis that it was meant to remain confidential. {¶36} We have already determined that the Au gust 15th letter is not privileged. The February 27th letter essentially duplicates the Augu st 15th letter, as it requests a response of the same type posed by the August 15th letter. It is entirely secular in na ture. Indeed, Appellants have made no attempt to explain how the letter relates to a religious counseling purpose. See App.R. 16(A)(7); R.C. 2317.02(C)(1). Because the February 27th letter is wholly secular in nature, the trial court did not e rr when it found that the clergy-penitent privilege did not apply.

See Niemann at 88. See also Catholic Diocese of Rockford at ¶ 56; Vital at 673; Morrison at ¶

116-117. viii. Letter Dated June 9, 2003 (#190) {¶37} Appellants describe the J une 9, 2003 letter as a one-p age letter from a Service Department elder to the Body of Elders at West Congregation. In the court below, they further described it as yet another request for the elders at West Congregation to respond to the Service Department’s August 15th letter, requesting certain information. Appellants argue that the June 9th letter is privileged because it “pertains to internal communications regarding church disciplinary matters.” {¶38} For the reasons set forth in our discu ssion of the August 15th letter and the February 27th letter, the June 9th letter is also not privileged. The purpose of the letter is entirely16

secular. The clergy-penitent privilege does not apply to it because it is not a request or response to a request for religious counseling. See R.C. 2317.02(C)(1). Accordingly, the trial court did not err when it found that the privilege did not apply. See Niemann at 88. See also Catholic Diocese of Rockford at ¶ 56; Vital at 673; Morrison at ¶ 116-117. ix. Letter Dated June 22, 2003 (#189) {¶39} Appellants describe the June 22, 2003 letter as a one-page letter from the Body of Elders at West Congregation to the Service Department. They further describe the letter as a response to an earlier request from the Service Depa rtment for certain information. According to Appellants, the letter is privileged because the Service Department “asked for [the] information in order to be able to provide religious guidance.” {¶40} Appellants have not argued that the J une 22nd letter itself offers religious counseling. We understand their argument to be that the letter is priv ileged because it provides the reader with information that could, at so me future point, be used to offer religious counseling. The clergy-penitent privilege, however , is not so broad in scope. It requires the communication directly at issue to have been made for the pur pose of religious counseling. See R.C. 2317.02(C)(1). See also See Ward , 128 Ohio St.3d 212, 2010-Ohio-6275, at ¶ 15 (statutory privileges must be strictly c onstrued). The June 22nd letter onl y sets forth certain factual information and was not sent for the purpose of re questing religious counseling or offering it to a penitent. Accordingly, the tria l court did not err when it found th at the clergy-penitent privilege did not apply. See Niemann at 88. See also Catholic Diocese of Rockford at ¶ 56; Vital at 673;

Morrison at ¶ 116-117.17

x. Letter Dated July 7, 2003 (#188) {¶41} Appellants describe the July 7, 2003 le tter as a one-page letter from a Service Department elder to the Body of Elders at West Congregation. In the court below, they further described it as an acknowledgement of receipt of the letter that the Body of Elders sent to the Service Department on June 22, 2003. {¶42} While Appellants refer to the July 7th le tter as a confidential communication, they have not explained how it pertains to religious counseling. See R.C. 2317.02(C)(1). Appellants have conceded that the letter is an acknowledgement of the receipt of an earlier letter. They have not offered any argument as to how the letter serves a non-secular purpose, and we decline to

create one on their behalf. See App.R. 16(A)(7); Cardone , 1998 WL 224934, at *8. As such, we reject their argument that the trial court erred when it found that the clergy-penitent privilege did not apply to the July 7th letter. xi. Letter Dated August 28, 2011 (#187) {¶43} Appellants describe the August 28, 2011 letter as a one-page letter from a nonparty to an elder in the Service Department. They argue that the letter is privileged because it

“contains confession to a Servi ce Department Elder and seeks religious guidance as to how to

address confe ssed failings.” {¶44} As previously noted, Appellants supported th eir argument in the court below with the affidavit of Thomas Jefferson, an elder for th e Service Department. Jefferson averred that he

has served as an elder in the faith since 1981 and is “thoroughly familiar with the religious beliefs and practices of Jehovah’ s Witnesses, and with the Scriptural precedents for those religious beliefs and practices.” He averred that “[t]he confidentiality of spiritual/religious communications between members of the congrega tion and elders is a foundational element of18

the religious beliefs and practices of Jehovah’s W itnesses.” According to Jefferson, “if an elder * * * was compelled to disclose confidential information, his cred ibility and effectiveness as an elder, as well as the credibility and effectiveness of other elders * * *, would be adversely affected and compromised.” Jefferson averred that the letters at issue here “were sent with the expectation that their content would remain private and highly confidential pursuant to the Holy Scriptures and the religious beliefs and practices of Jehovah’s Witnesses.” {¶45} Having reviewed the August 28th letter, we must conclude that the trial court erred when it ordered Appe llants to produce it. The letter is not secular in nature. It is a plea from an individual who seeks spiritual guidance on a particular issue from an elder in the Service Department. McFarland does not di spute that Service Department elders are clerics within the meaning of R.C. 2317.02(C)(1). Further, Appellants set forth evidence that the confidentiality of spiritual communications between congregation member s and elders is of such importance that it is “a foundational element of the religious belie fs and practices of Jehovah’s Witnesses.” Because Appellants have shown that the August 28th letter satisfies the statutory elements of R.C. 2317.02(C)(1), we must conclude that the le tter is privileged. Accordingly, Appellants need not produce it. xii. Letter Dated October 24, 2011 (#186) {¶46} Appellants describe the October 24, 2011 letter as a one-page letter from a Service Department elder to a non-party. In th e court below, they further described it as a response to a non-party’s written plea for spiritu al guidance, dated August 28, 2011. Appellants argue that the October 24th letter is privileged because it “contains Scriptural assistance and religious counseling * * *.”19

{¶47} The October 24th letter is a response to the August 28th letter discussed above. We have already determined that the August 28th letter is privileged and we likewise conclude that the October 24th response to that letter is pr ivileged. The October 24th letter is not secular in nature. It offers spiritual counseling in response to an indivi dual’s confidential request for the same. Further, Appellants set forth evidence that a cleric authored the letter and that elders, while serving as clerics, are bound by the tenets of their faith to uphold the confidentiality of such communications. Because Appellants have s hown that the October 24th letter satisfies the statutory elements of R.C. 2317.02(C)(1), we must conclude that the letter is privileged and that the trial court erred by ordering its producti on. Accordingly, Appellants need not produce the

October 24th letter. xiii. Letter Dated May 3, 2012 (#185) {¶48} Appellants describe the May 3, 2012 letter as a one-page letter from a non-party to an elder in the Service Department. They fu rther describe it as “a continuation of an on-going conversation” instituted by the non- party. Appellants argue that the letter is privileged because it is in the nature of religious/spiritual c ounseling and reveals Scriptural discipline. {¶49} This Court has reviewed the May 3rd letter and portions of it are undoubtedly

secular in nature. Were we to view the lette r in isolation, we might question its overarching purpose. As Appellants have not ed, however, the letter is one in an ongoing conversation. Specifically, it is a reply to the October 24th letter that the Service Department issued in response to the same non-party’s August 28th lett er. Because the October 24th letter represents a continuation of the ongoing, privileged communi cation between the non-party and the Service Department, we must conclude that it too is privileged. Accordingly, the trial court erred by ordering its production. Appellants need not produce the May 3rd letter.20

xiv. Telephone Memorandum Da ted August 1, 2013 (#184) {¶50} Appellants describe the August 1, 2013 telephone memorandum as a one-page memorandum documenting a phone call from a non-part y to an elder in the Service Department. Appellants argue that the tele phone memorandum is privileged b ecause the non-party called the Service Department for the purpose of seeking spiritual guidance and the memorandum includes the guidance given to the non-party. {¶51} Having reviewed the August 1st memorandum , we must conclude that it is not privileged. First, it is not clear that the memorandum is a confidential communication. See R.C. 2317.02(C)(1). According to Appellants, the lett er is a “record of a telephone call from a nonparty to an Elder * * *.” They have not indi cated, however, whether the elder who accepted the

call transcribed the memorandum or if someone else tran scribed it on the elder’s behalf. Further,

the memorandum contains a section that records information received from a second individual. Appellants describe that section as recording a “discussion between an Elder in the Service Department and Watchtower’s Legal Department.” Thus, th e memorandum is not a direct communication from a penitent to a cleric and it is apparent that the information contained within it was shared with multiple individuals who may or may not have been elders. Because the clergy-penitent privilege only protects conf identially communicated information, we question whether the memorandum satisfies that element of the privilege. See id. Even assuming that it does, however, Appellants still have not shown that the memorandum serves a religious counseling purpose. Id. See also Giusti , 2008-Ohio-4333, at ¶ 17. {¶52} It is not clear from the August 1st memorandum that the non-party who initiated the telephone call at issue in the memorandum cont acted the Service Department for the purpose of receiving religious counseling. The memoran dum does include a very brief recitation of the21

spiritually-motivated response th at the Service Department offe red the caller. It does not, however, show that the caller asked for religious c ounsel. The fact that a cleric responds to an individual’s lament on a pa rticular point with spiritual advi ce does not mean that the individual sought to elicit religious counseling. The clergy-p enitent privilege stems fr om a penitent’s desire to receive spiritual counsel, not a cleric’s desire to give it. See Trammel v. United States , 445 U.S. 40, 51 (1980). The August 1st memorandum re lays information about a particular situation and documents the actions taken in response to th at information. Appellants have not satisfied their burden of demonstrating that the memorandum serves a religious counseling purpose rather

than a secular one. See R.C. 2317.02(C)(1). See also Niemann , 93 Ohio App.3d at 88. See also Catholic Diocese of Rockford , 395 Ill.Dec. 483 at ¶ 56; Vital , 83 Mass.App.Ct. at 673; Morrison , 905 So.2d 1213 at ¶ 116-117. Thus, the trial cour t did not err when it found the privilege inapplicable. {¶53} Appellants also argue that the trial cour t erred when it ordered them to produce the August 1st memorandum because it implicates the privacy rights of third-parties to this litigation. Appellants have not shown, however, that third- parties have privacy rights in unprivileged documents. See discussion, supra . Because we have determined that the August 1st memorandum is not privileged, we reject Appella nts’ argument regarding third-party privacy. xv. Letter Dated September 15, 2014 (#183) {¶54} Appellants describe the Se ptember 15, 2014 letter as a three-page letter from nonparties to an elder in the Service Department. Appellants argue that the letter is privileged because it “makes confessional disclosures” and “seeks Scriptural guidance and religious

direction * * *.”22

{¶55} Having reviewed the September 15th letter, we must conclude that the trial court erred when it ordered Appellants to produce it. The le tter is not secular in nature. It is a specific request for religious counseling from two individual s to an elder in the Service Department. As previously noted, McFarland does not dispute that Service Department elders are clerics within the meaning of R.C. 2317.02(C)(1). Further, Appellants set forth evidence that the confidentiality of spiritual communications between congregation members and elders is of such importance that it is “a foundational element of th e religious beliefs and practices of Jehovah’s Witnesses.” Because Appellants have shown that the September 15th letter satisfies the statutory elements of R.C. 2317.02(C)(1), we must conclude that the letter is privileged. Accordingly, Appellants need not produce it.

First Amendment {¶56} Appellants also argue that the trial court’s ruling on McFarland’s motion to compel violates the First Amendment because it “exposes [their] internal discipline procedures and beliefs regarding repentance, mercy, and redemption to external, secular scrutiny.” Initially, we note that we need not consider Appellants’ ar guments in light of all nineteen documents at issue in this appeal. We have already dete rmined that four of those documents, #183, #185, #186, and #187, are privileged. Beca use Appellants do not have to produce those documents, we need not consider whether their production woul d violate the First Amendment. Further, on appeal, Appellants have not raised a First Ame ndment argument with respect to two of the documents, #189 and #196. Because Appellants have not set forth a First Amendment argument with respect to those two documents, we need not include them in our discussion. See App.R. 16(A)(7). Finally, in the court below, Appella nts failed to raise a First Amendment argument with respect to three of the documents, #188, #191, and #192. Even assuming that Appellants23

could do so now via a claim of plain error, they have not attempted to do so. We, therefore, exclude the three foregoing do cuments from our discussion. See Buckingham, Doolittle, Burroughs, L.L.P. v. Izaldine , 9th Dist. Summit No. 27956, 2016-Ohio-2817, ¶ 13. We need only consider Appellants’ arguments in light of the Bodies of Elders letters and the six remaining documents, #184, #190, #193, #194, #195, and #197. {¶57} The First Amendment to the United Stat es Constitution provides that “Congress shall make no law respecting an es tablishment of religion, or prohi biting the free exercise thereof * * *.” The Establishment Clause and Free Exercise Clause prohibit States from “enact[ing] [] laws that have the purpose or effect of adva ncing or inhibiting relig ion,” or expressing a preference for any one religious denomination. (Internal quotations and citations omitted.)

Varner , 500 F.3d at 495. The Clauses apply “to th e judiciary as well as the legislature, Kreshik

v. St. Nicholas Cathedral , 363 U.S. 190, 191 (1960), and limit[] the power of the courts to hear suits ‘whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by * * * church judicatories * * *.’” Ogle v. Hocker , 6th Cir. No. 06-2236, 2008 WL 2224863, *3 (May 29, 2008), quoting Watson v. Jones , 80 U.S. 679, 727 (1871). “Courts have variously termed this restraint as the church autonomy doctrine or ecclesiastical

abstention.” Ogle at *3. {¶58} “[R]eligious freedom encompasses the ‘pow er (of religious bodies) to decide for themselves, free from state interference, matters of church government as well as those of faith

and doctrine.’” Serbian Eastern Orthodox Diocese for United States of America and Canada v. Milivojevich , 426 U.S. 696, 721-722 (1976), quoting Kedroff v. St. Nicholas Cathedral of

Russian Orthodox Church in North America , 344 U.S. 94, 116 (1952). Accord Harrison v. Bishop , 6th Dist. Lucas No. L-14-1137, 2015-Ohio-5308, ¶ 19, quoting Tibbs v. Kendrick , 9324

Ohio App.3d 35, 41 (8th Dist.1994) (“It is well estab lished that civil courts lack jurisdiction to hear or determine purely ecclesiastical or spiritual disputes of a church or religious organization.”); Fischer v. Archdiocese of Cincinnati , 1st Dist. Hamilton No. C-130295, 2014- Ohio-944, ¶ 35-38. Yet, “[t]he First Amendment does not prevent courts from deciding secular civil disputes involving religious institutions when and for the reason that they require reference to religious matters.” Martinelli v. Bridgeport Roman Catholic Diocesan Corp. , 196 F.3d 409, 431 (2d Cir.1999). Accord Bell v. Presbyterian Church (U.S.A.) , 126 F.3d 328, 331 (4th Cir.1997), quoting General Council on Finance and Administ ration of the United Methodist Church v. California Superior Court , 439 U.S. 1369, 1373 (1978) (Rehnquist, Circuit Justice) (religious organization may be held liable in ci vil court for “purely secular disputes between third parties and a particular de fendant, albeit a religiously affilia ted organization.”). “Whether a secular court may hear a tort suit despite the church autonomy doctrine turns on the availability of secular standards and the ability of a court to resolve the controversy without reference to religious doctrine.” Ogle at *3. {¶59} The question presently before us on appeal is strictly whether the trial court erred in ordering Appellants to produce ten unpriv ileged documents in re sponse to McFarland’s request for discovery. “Courts in other jurisdic tions have explicitly rejected the argument that the [F]irst [A]mendment protects religious ins titutions from disclosing relevant, non-privileged

information.” Thopsey v. Bridgeport Roman Catholic Diocesan Corp. , Sup. Ct. of Conn. New Haven No. NNHCV106009360S, 2012 WL 695624, *11 (F eb. 15, 2012). Once the trial court determined that the documents here were not priv ileged, it could order their discovery so long as it found them “relevant to the subject matter involved in the pending action * * *.” See Civ.R. 26(B)(1). That decision did not require the court to interpret or evaluate Appellants’ religious25

beliefs or internal governance. See Thopsey at *11. See also Lopez v. Watchtower Bible and Tract Society of New York, Inc. , 246 Cal.App.4th 566, 598-599 (2016); Krystal G. v. Roman Catholic Diocese of Brooklyn , 34 Misc.3d 531, 542-543 (2011); People v. Campobello , 348 Ill.App.3d 619, 627-631 (2004). The question of relevance was purely secular and did not require the court to delve into religious law and polity. Compare Serbian Eastern Orthodox Diocese for United States of America at 708-710; Howard v. Covenant Apostolic Church, Inc. , 124 Ohio App.3d 24, 28-29 (1st Dist.1997). Consequent ly, we reject Appellants’ argument that the trial court violated the First Amendment when it ordered them to produce the ten documents

at issue. {¶60} Appellants also argue that the trial court’ s order violates Article 1, Section 7 of the Ohio Constitution. They rely upon Humphrey v. Lane , 89 Ohio St.3d 62 (2000), to argue that the Ohio Constitution affords broader protection than the United States Constitution with respect to the protection of religious freedoms. Appe llants, however, did not develop the foregoing argument in the court below. Indeed, they failed to even cite Humphrey in their memorandum in opposition to McFarland’s motion to compel. More over, they have not assigned as error on appeal that the court’s order vi olates the Ohio Constitution. This Court declines to address an additional argument that Appella nts did not raise in their capti oned assignment of error or develop in the court below. See 22 Exchange, L.L.C. v. E xchange Street Assocs., L.L.C. , 9th Dist. Summit No. 27472, 2015-Ohio-1719, ¶ 21; JPMorgan Chase Bank, Natl. Assn. v. Burden , 9th Dist. Summit No. 27104, 2014-Ohio-2746, ¶ 12.

Conclusion {¶61} The trial court erred when it ordered Appellants to produce four documents: #183, #185, #186, and #187. Those four documents are prot ected from disclosure by virtue of the26

clergy-penitent privilege. To the extent Appellants’ first assignment of error pertains to those four documents, it is sustained on that basis. {¶62} The trial court did not err when it concluded that the remaining fifteen documents at issue here are not protected from disclosure by virtue of either the clergy-penitent privilege or the First Amendment. To the extent Appellants’ fi rst assignment of error pe rtains to those fifteen documents, it is overruled. Assignment of Error Number Two

THE TRIAL COURT ERRED WHEN IT ORDERED PRODUCTION OFDOCUMENTS PROTECTED FROM DISCLOSURE BY THE ATTORNEYCLIENT PRIVILEGE. {¶63} In their second assignment of error, A ppellants argue that the trial court erred when it ordered them to produce six documents because those six documents are protected from disclosure by the attorney-client privilege. Specif ically, they argue that the court should not have

ordered them to disclose documents #184, #189, #190, #191, #193, and #195. {¶64} Initially, we note that Appellants did not object to the production of documents

#190 and #195 in the court below on the basis of a ttorney-client privilege. Appellants objected to the production of those two documents strictly on the basis of the clergy-penitent privilege and the First Amendment. “Arguments that were not ra ised in the trial court cannot be raised for the first time on appeal.” JPMorgan Chase Bank, Natl. Assn. , 2014-Ohio-2746, at ¶ 12. Even assuming that Appellants could assert the privilege on appeal via a claim of plain error, they have not done so. Consequently, we will not ad dress their attorney-clie nt privilege argument with respect to documents #190 and #195. See id. {¶65} We incorporate the standard of review set forth in Appellants’ first assignment of error. Because this assignment of error likewise concerns the applicability of a privilege, the27

issue is a question of law that we review de novo. Price , 2011-Ohio-1048, at ¶ 8. Consequently, we undertake “an independent review of the tria l court’s decision without any deference to the

trial court’s de termination.” Consilio , 2006-Ohio-649, at ¶ 4. {¶66} “In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A),

and in cases that are not addresse d in R.C. 2317.02(A), by common law.” State ex rel. Leslie v. Ohio Hous. Fin. Agency , 105 Ohio St.3d 261, 2005-Ohio-1508, ¶ 18. “[T]he statutory privilege governs communications directly betw een an attorney and a client.” Jackson v. Greger , 110 Ohio St.3d 488, 2006-Ohio-4968, ¶ 7. It does not apply to communications beyond testimonial speech or between clients and agents of an attorney. See State ex rel. Dawson v. Bloom-Carroll

Local Sch. Dist. , 131 Ohio St.3d 10, 2011-Ohio-6009, ¶ 27; State v. McDermott , 72 Ohio St.3d 570, 574 (1995). Instead, the common law privilege applies in those instances and “protects against any dissemination of information obt ained in the confidential relationship.” American Motors Corp. v. Huffstutler , 61 Ohio St.3d 343, 348 (1991). Appellants only argue that the common law privilege applies here . Consequently, we need not analyze the statutory privilege. {¶67} The attorney-client privilege “recognize s that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.” Upjohn Co. v. United States , 449 U.S. 383, 389 (1981). Under the [common law] attorney-client privilege, “(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unl ess the protection is waived.” State ex rel. Leslie at ¶ 21, quoting Reed v. Baxter , 134 F.3d 351, 355-356 (6th Cir.1998). The “privilege ‘does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the28

rendition of legal services or advice, the communication is privileged.’” State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth. , 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 27, quoting

Dunn v. State Farm Fire & Cas. Co. , 927 F.2d 869, 875 (5th Cir.1991). The purpose of the privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. , 127 Ohio St.3d 161, 2010-Ohio4469, ¶ 16, quoting Upjohn Co. v. United States , 449 U.S. 383, 389 (1981). {¶68} “[T]he party seeking protection under the [attorney-client] privilege carries the burden of establishing the exis tence of that privilege.” Nageotte v. Boston Mills Brandywine Ski

Resort , 9th Dist. Summit No. 26563, 2012-Ohio-6102, ¶ 8, quoting Perfection Corp. v. Travelers

Cas. & Sur. , 153 Ohio App.3d 28, 2003-Ohio-2750, ¶ 12 (8th Dist.). Appellants argue that documents #184, #189, #191, and #193 are privileged b ecause they reference “the activities or contain[] requests and communicati ons between the Legal Department that gives legal advice to Watchtower and local elders such as [] West Co ngregation Elders after they received notice of McFarland’s allegations of sexual abuse.” According to Appellants, the attorneys in the Legal Department function as in-house counsel for th e religious organization, so the confidential

communications that elders have w ith those attorneys are privileged. {¶69} None of the four documents at issue here involve communications either directly from or to an attorney. Three of the documents are letters from one elder or set of elders to

another elder or set of elders. The fourth is a memorandum from an elder in the Service Department. Appellants argue that the documents are privileged because the attorney-client privilege protects “communications between an or ganization and its in-hous e legal department.” See Upjohn Co. v. United States , 449 U.S. 383 (1981). The documents, however, are not29

communications between members of an organization and its in-house counsel. They are strictly

communications between members. Appellants have not addre ssed the issue of whether the attorney-client privilege protects communications between members of the same organization

when those communications do not involve an attorney. See Boone v. Vanliner Ins. Co. , 91 Ohio St.3d 209, 215 (2001) (attorney-client privilege did not apply to communications between two employees where organization’s attorney was “not involved in these communications on the issue in question.”). {¶70} As the parties seeking to assert the pr ivilege here, Appellants bore the burden of establishing its existence. See Nageotte at ¶ 8, quoting Perfection Corp. at ¶ 12. Appellants

have not shown that the four documents at issue here constitute confidential communications between a client and attorney made for the purpose of securing legal advice. See State ex rel.

Leslie , 105 Ohio St.3d 261, 2005-Ohio-1508, at ¶ 21, quoting Reed , 134 F.3d at 355-356. Nor have they shown that the communications “would facilitate the rendition of legal services or

advice * * *.” State ex rel. Toledo Blade Co. , 121 Ohio St.3d 537, 2009-Ohio-1767, at ¶ 27, quoting Dunn , 927 F.2d at 875. The four documents here reference contact with the Legal Department either having been made or not made and outline certain facts. See Upjohn Co. , 449 U.S. at 395-396, quoting Philadelphia v. Westinghouse Electric Corp. , 205 F.Supp. 830, 831 (1962) (“[T]he protection of the privilege extends only to communi cations and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing.”). See

also State v. Mitchell , 9th Dist. Summit No. 17029, 1995 WL 678624, *9 (Nov. 15, 1995) (“The mere fact that a meeting occurred, or did not occur, does not constitute a ‘communication’ for purposes of the attorney -client privilege.”); State v. Smith , 9th Dist. Summit No. 13730, 1989 WL 28698, *3 (Mar. 29, 1989) (attorney permitted to testify regarding her “unsuccessful30

attempts to contact [the defe ndant] to remind him of his tria l date”). The case law upon which Appellants rely does not resolve the issue on appeal. See App.R. 16(A)(7). Because Appellants have not shown that the attorney-c lient privilege applies to the four documents at issue here, we reject their argument that the trial court erred by granting McFarland’s motion to compel. See Nageotte at ¶ 8, quoting Perfection Corp. at ¶ 12. Consequently, Ap pellants’ second assignment

of error is overruled.

III {¶71} Appellants’ first assignment of error is sustained with respect to documents #183, #185, #186, and #187. Appellants need not produce t hose four documents. Appellants’ first assignment of error is overruled with respect to the remaining documents. Additionally, Appellants’ second assign ment of error is overruled. Appe llants must produce the Bodies of

Elders letters as well as doc uments #184 and #188 through #197. The judgment of the Lorain County Court of Common Pleas is affirmed in pa rt, reversed in part, and remanded for further proceedings consistent with the foregoing opinion. Judgment affirmed in part, 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 Lorain, State of Ohio, to carry th is 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 docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the31

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 both parties.

BETH WHITMORE FOR THE COURT

HENSAL, P. J. SCHAFER, J. CONCUR.

APPEARANCES: AMANDA MARTINSEK and MARQUETTES D. ROBINSON, Attorneys at Law, for Appellants. FRANCIS J. MCNAMARA, Attorney at Law, for Appellants. KONRAD KIRCHER, Attorney at Law, for Appellee. IRWIN M. ZALKIN and DEVIN M. STOREY, Attorneys at Law, for Appellee.