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

v. Glenn, Slip Opinion No. 2021-Ohio-3369.] 

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. 2021-OHIO-3369

THE STATE OF OHIO, APPELLEE, v. GLENN, APPELLANT. 

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

may be cited as State v. Glenn, Slip Opinion No. 2021-Ohio-3369.] 

Criminal law—R.C. 2505.02—Crim.R. 16—Discovery—Final, appealable 

orders—Trial court’s order for defense counsel to prepare and disclose 

summaries of defense-witness statements did not satisfy the requirements of 

R.C. 2505.02(B)(4) for being a final, appealable order—Court of appeals’ 

judgment affirmed. 

(No. 2020-0338—Submitted April 13, 2021—Decided September 28, 2021.) 

APPEAL from the Court of Appeals for Montgomery County, No. 28736. 

_______________________ 

DEWINE, J.

{¶ 1} This case is about the timing of an appeal. Samuel Glenn is set to be 

tried on a sexual-battery charge. He claims to have an alibi—and the judge 

presiding over the case has ordered Glenn’s attorney to provide information to the 

prosecution about what Glenn’s alibi witnesses intend to say at trial. Glenn asserts 
SUPREME COURT OF OHIO

 2

that the judge has made a mistake; he contends that he shouldn’t have to turn over 

the information because it is protected from disclosure by the attorney-workproduct doctrine. The question before us is when can Glenn challenge the trial 

judge’s decision: can he appeal now, or does he need to wait until the end of his 

case? For reasons that we will explain, we conclude that Glenn must wait until the 

end of his case. 

I. The trial court’s discovery order

{¶ 2} Glenn is a high-school teacher. He was indicted on allegations that 

he had engaged in sexual conduct with one of his students at his apartment. During 

the pretrial phase of the case, Glenn’s attorney filed a notice of alibi and provided 

a list of defense witnesses to the prosecution. As later amended, the notice listed 

three locations where Glenn claimed to have been at the time that the incident was 

alleged to have occurred and identified ten people who he says were with him at 

one point or another that night. The state filed a motion to compel discovery, asking 

the trial court to order defense counsel to produce witness statements and 

investigative reports regarding the expected testimony of Glenn’s witnesses. In 

response, Glenn’s attorney said that he did not have any written or recorded witness 

statements. 

{¶ 3} The state later filed a supplemental motion to compel discovery, again 

requesting “[w]itness statements and/or reports summarizing proposed testimony 

of defense witnesses.” The state was most interested in finding out the expected 

testimony of Glenn’s ex-girlfriend, one of the alibi witnesses. The motion 

explained that defense counsel had informed the prosecutor that Glenn’s exgirlfriend would testify that she had been with Glenn for the entire night of the 

alleged crime. The state contended that this testimony would directly conflict with 

that of the victim, who claimed to have been assaulted by Glenn at his apartment 

the same night. 
January Term, 2021 

3

{¶ 4} According to the state, a detective attempted to contact Glenn’s exgirlfriend, but she retained an attorney and refused to talk to any representative of 

the state or provide a written witness statement. She did, however, speak to Glenn’s 

attorney and a defense investigator. The state acknowledged that defense counsel 

had “verbally relayed the content of those conversations to prosecutors,” but it 

asked the court to order defense counsel to provide written summaries of the 

expected testimony of Glenn’s ex-girlfriend and other defense witnesses, asserting 

that the defense had “provided nothing to the State that would allow the prosecution 

to conduct an effective cross-examination.” 

{¶ 5} Following a hearing, the trial court issued an order granting the state’s 

motion to compel. The trial court determined that Crim.R. 16 mandates disclosure 

of written summaries of oral conversations with witnesses and that the defense has 

a reciprocal duty to disclose to the prosecution any evidence that tends to support 

an alibi. The trial court further noted that even if Crim.R. 16 does not mandate such 

disclosure, the Second District Court of Appeals has held that the local rules of the 

Montgomery County Court of Common Pleas require reciprocal discovery of all 

statements made by witnesses. See State v. Rohde, 2d Dist. Montgomery No. 

26087, 2014-Ohio-5580, ¶ 34-35. 

{¶ 6} The trial court rejected Glenn’s argument that its order would 

erroneously compel the production of protected attorney work product. The court 

concluded that disclosures mandated under the Ohio Rules of Criminal Procedure 

supersede the work-product protection. It further noted that such statements are 

subject to disclosure only to the extent that they do not contain “internal 

communication of impressions, conclusions, strategy, or opinions.” The trial court 

also made clear that its disclosure order does not apply to information that would 

incriminate Glenn or statements intended to be used solely as impeachment 

evidence. With those caveats, the trial court ordered defense counsel “to provide 

the State with written summaries of the statements made to defense counsel and the 
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defense investigator by the witnesses [the] defense intends to call regarding 

[Glenn’s] alibi.” And the court warned that the failure to comply with the order 

would result in the exclusion of the witnesses’ testimony. 

{¶ 7} Glenn appealed the trial court’s discovery order to the Second District 

Court of Appeals, and the state moved to dismiss the appeal for lack of a final, 

appealable order. Glenn’s attorney responded that the order was immediately 

appealable, because it required him to create written summaries of his oral 

conversations with witnesses, which he contended were protected as attorney work 

product. 

{¶ 8} The Second District granted the state’s motion to dismiss. The court 

held that Glenn had not made a sufficient showing that he “would not be afforded 

a meaningful or effective remedy by an appeal following final judgment,” as 

required by R.C. 2505.02(B)(4)(b) for the order to be final and appealable. 2d Dist. 

Montgomery No. 28736, ¶ 11. 

{¶ 9} Glenn appealed the Second District’s judgment to this court, and we 

accepted the case. See 159 Ohio St.3d 1434, 2020-Ohio-3634, 148 N.E.3d 592. 

Glenn asserts that an order requiring an attorney to create and turn over to the 

prosecution summaries of conversations that the attorney has had with potential 

witnesses is a final, appealable order. He further contends that an order that 

compels the disclosure of attorney work product in a criminal case should always 

be treated as a final, appealable order. 

II. Elements of a final order 

{¶ 10} The Ohio Constitution grants the courts of appeals “such jurisdiction 

as may be provided by law” to review “final orders” rendered by inferior courts. 

Ohio Constitution, Article IV, Section 3(B)(2). R.C. 2505.02 helps fill in the 

“provided by law” part of that jurisdictional grant by setting forth a definition of 

what constitutes a final order. The general rule is that all orders in a case must be 

reviewed in a single appeal after final judgment. See Anderson v. Richards, 173 
January Term, 2021 

5

Ohio St. 50, 55, 179 N.E.2d 918 (1962) (acknowledging “the principle that there 

should be only one appeal in the cause itself wherein all errors can be urged 

simultaneously”); Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 

114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (the “general rule [is] that a party is entitled 

to a single appeal, to be deferred until final judgment has been entered, in which 

claims of [trial] court error at any stage of the litigation may be ventilated”). But 

R.C. 2505.02 provides a limited exception by including within the definition of a 

final order certain types of interlocutory decisions of a trial court. 

{¶ 11} Relevant here is the provision addressing orders granting or denying 

a “provisional remedy.” Under R.C. 2505.02(B)(4), an appellate court has 

jurisdiction to review, affirm, modify, or reverse an “order that grants or denies a 

provisional remedy” when both of the following circumstances are satisfied: 

 (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. 

This provision guides our analysis and resolution of this case.

A. The order grants a provisional remedy

{¶ 12} The threshold requirement for an order to be appealable under R.C. 

2505.02(B)(4) is that the order must grant or deny a provisional remedy. A 

provisional remedy is “a proceeding ancillary to an action” and includes a 

proceeding for “discovery of privileged matter.” R.C. 2505.02(A)(3). This court 

has held that a discovery order compelling the disclosure of attorney work product 

falls within the rubric of “discovery of a privileged matter” and is therefore a 
SUPREME COURT OF OHIO

 6

provisional remedy. Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 

N.E.3d 633, ¶ 5-6; see also Squire, Sanders & Dempsey, L.L.P. v. Givaudan 

Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 55. 

{¶ 13} Still, that leaves something of a chicken/egg quandary: the state 

disputes that the order requires the disclosure of attorney work product. But at this 

juncture, we need not resolve the question whether the trial court’s order 

definitively compels the disclosure of protected attorney work product. “To impose 

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

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

appeal.’ ” Byrd v. U.S. Xpress, Inc., 2014-Ohio-5733, 26 N.E.3d 858, ¶ 12 (1st 

Dist.), quoting Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, 928 

N.E.2d 763, ¶ 35 (10th Dist.). Rather, to determine whether the order satisfies the 

provisional-remedy requirement for appealability, we need review only whether 

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

that might be protected attorney work product. Id.

{¶ 14} The trial court ordered Glenn’s attorney to create summaries of his 

conversations with defense witnesses. Yet the scope of the order is somewhat 

circumscribed: it suggests that in creating those summaries, Glenn is not required 

to disclose any “internal communication of impressions, conclusions, strategy, or 

opinions,” nor must Glenn provide the prosecution with any incriminating 

information or statements that the defense intends to use only for impeachment. 

{¶ 15} Our discovery rules encourage the disclosure of “information 

necessary for a full and fair adjudication of the facts.” Crim.R. 16(A). Indeed, we 

have long said that the overall objective of our criminal rules “ ‘ “is to remove the 

element of gamesmanship from a trial.” ’ ” State v. Darmond, 135 Ohio St.3d 343, 

2013-Ohio-966, 986 N.E.2d 971, ¶ 19, quoting Lakewood v. Papadelis, 32 Ohio 

St.3d 1, 3, 511 N.E.2d 1138 (1987), quoting State v. Howard, 56 Ohio St.2d 328, 

333, 383 N.E.2d 912 (1978). And we have recognized that our discovery rules 
January Term, 2021 

7

were designed to “ ‘prevent surprise and the secreting of evidence favorable to one 

party.’ ” Id., quoting Lakewood at 3. Thus, with limited exceptions, Crim.R. 16 

imposes a reciprocal duty on the defense and the prosecution to disclose material 

information to the opposing party. Crim.R. 16(A) and (H). 

{¶ 16} Nonetheless, the United States Supreme Court has recognized that 

certain aspects of an attorney’s efforts on behalf of his client—reflected in 

“interviews, statements, memoranda, correspondence, briefs, mental impressions, 

personal beliefs, and countless other tangible and intangible ways”—may be 

protected from disclosure as attorney work product. Hickman v. Taylor, 329 U.S. 

495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Hickman arose out of an appeal from 

a contempt citation by an attorney who had refused to disclose certain materials 

prepared by the attorney in preparation for possible litigation. Id. at 500-501. The 

court explained that the disclosure of memoranda summarizing an attorney’s oral 

interviews with witnesses is “particularly disfavored because it tends to reveal the 

attorney’s mental processes,” Upjohn Co. v. United States, 449 U.S. 383, 399, 101 

S.Ct. 677, 66 L.Ed.2d 584 (1981), citing Hickman at 513 (noting that such 

summaries would reflect “what [the attorney] saw fit to write down regarding 

witnesses’ remarks”), and Hickman at 516-517 (Jackson, J., concurring) 

(explaining that “the statement would be [the attorney’s] language permeated with 

his inferences”). We have recognized the work-product doctrine, noting that it 

emanates from the Hickman decision. See Squire, Sanders & Dempsey, L.L.P., 127 

Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, at ¶ 54. 

{¶ 17} The United States Supreme Court has also held that the attorneywork-product doctrine applies in criminal cases. United States v. Nobles, 422 U.S. 

225, 236, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). And Ohio’s Crim.R. 16(J) 

explicitly protects “[m]aterials subject to the work product protection” from 

disclosure in criminal cases. By its plain terms, the criminal rule incorporates the 

work-product doctrine. 
SUPREME COURT OF OHIO

 8

{¶ 18} The protection for attorney work product is not absolute. Squire, 

Sanders & Dempsey, L.L.P. at ¶ 55, citing Nobles at 239. The protection can be 

overcome in appropriate circumstances by showing a particularized need for the 

information. Hickman at 511; 8 Wright & Miller, Federal Practice and Procedure, 

Section 2025 (3d Ed.1999). And the doctrine is generally understood as providing 

a much greater level of protection to opinion work product that reveals an attorney’s 

thought processes than to mere fact work product, such as witness statements, that 

reveal underlying facts without disclosing an attorney’s mental impressions. See, 

e.g., In re Antitrust Grand Jury, 805 F.2d 155, 163-164 (6th Cir.1986); In re Grand 

Jury Subpoena, 870 F.3d 312, 316 (4th Cir.2017). The former is often said to 

require “ ‘an exceptional showing of need’ ” before it can be disclosed, while the 

latter has been said to require only a showing of “ ‘good cause.’ ” Grace v. 

Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 912 N.E.2d 608, ¶ 31-32 (1st 

Dist.), quoting Jerome v. A-Best Prods. Co., 8th Dist. Cuyahoga Nos. 79139, 

79140, 79141, and 79142, 2002-Ohio-1824, ¶ 20-21; see also Baker v. Gen. Motors 

Corp., 209 F.3d 1051, 1054 (8th Cir.2000). 

{¶ 19} As the Hickman court acknowledged, “Where relevant and nonprivileged 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.” 

Hickman, 329 U.S. at 511, 67 S.Ct. 385, 91 L.Ed. 451. Thus, although a “lawyer’s 

recordation of mental impressions, personal beliefs, trial strategy, legal 

conclusions, or anything else that could not be fairly said to be the witness’ own 

statement” is entitled to significant work-product protection, Goldberg v. United 

States, 425 U.S. 94, 106, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976) (cleaned up), “it is 

possible to [require production of] ‘statements’ taken down by an attorney, and still 

preserve the sanctity of the attorney’s work product,” Saunders v. United States, 

316 F.2d 346, 349-350 (D.C.Cir.1963); see also id. at 350 (if an attorney has made 

“a substantially verbatim record of his interview, * * * his notes constitute a 
January Term, 2021 

9

‘statement’ and include no protected material flowing from the attorney’s mental 

processes”). 

{¶ 20} For our purposes, though, we need not determine whether Glenn is 

correct that compliance with the trial court’s order will improperly require him to 

disclose protected work-product information; we need only decide whether he has 

made a colorable claim that it will. We conclude (and the state concedes) that he 

has. Glenn has set forth at least a plausible theory that compliance with the court’s 

order will require him to disclose materials that are protected by the attorney-workproduct doctrine. 

B. The order determines the attorney-work-product issue and prevents a 

judgment in Glenn’s favor with respect to that issue 

{¶ 21} There can be little question that the trial court’s discovery order 

meets the second requirement of R.C. 2505.02(B)(4)(a): “[t]he 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.” The order directs defense counsel to create “written summaries of the 

statements made to defense counsel and the defense investigator by the witnesses 

[the] defense intends to call regarding [Glenn’s] alibi,” and it provides that the 

witnesses will be barred from testifying if defense counsel fails to comply. As this 

court has previously explained, “[I]t would be impossible to later obtain a judgment 

denying [a] motion to compel disclosure if the party has already disclosed the 

materials.” Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 

89 N.E.3d 536, ¶ 21 (lead opinion). Thus, the order plainly “determines the 

[attorney-work-product] issue and prevents a judgment” in Glenn’s favor 

“regarding that issue,” id. at ¶ 20. Indeed, the state concedes that this requirement 

also has been satisfied. 

 
SUPREME COURT OF OHIO

 10 

C. Glenn has failed to show that any harm caused by the discovery order cannot 

be effectively remedied by an appeal after final judgment

{¶ 22} We now turn to the third requirement for an order granting a 

provisional remedy to be immediately appealable—and the crux of the parties’ 

dispute—that the “appealing party would not be afforded a meaningful or effective 

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

burden of establishing the appellate court’s jurisdiction over an interlocutory appeal 

“falls on the party who knocks on the courthouse doors asking for interlocutory 

relief.” Smith, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 8. To 

meet this burden, Glenn must establish not only that he has a colorable claim that 

the order compels the disclosure of attorney work product but also that any harm 

from its disclosure could not be remedied on appeal from a final judgment. Id. at 

¶ 5; Burnham at ¶ 20. 

{¶ 23} Glenn has failed to make such a showing. In his response to the 

state’s motion to dismiss his appeal in the Second District, Glenn offered a single 

conclusory statement regarding the effective-remedy requirement, asserting that 

“[o]nce the information is released the privilege is violated.” And Glenn’s 

arguments in this court are similarly sparse. Echoing concerns discussed in 

Hickman, 329 U.S. at 513, 67 S.Ct. 385, 91 L.Ed. 451, Glenn suggests that by 

creating summaries of witness statements to comply with the court’s order, defense 

counsel might subject himself to being called to testify against Glenn’s witnesses 

should their testimony deviate from defense counsel’s recollections. He addresses 

the effective-remedy question by claiming, “Arguably, forcing an attorney into 

such a situation is not something that can be rectified on direct appeal and likely 

would lead to the consequences foreseen in Hickman.” 

{¶ 24} Although we acknowledge those concerns, there is no reason that

such a situation could not be rectified in an appeal following final judgment. If that 

scenario comes to fruition and the appellate court determines that the trial court’s 
January Term, 2021 

11 

discovery order was improper, then it may grant Glenn a new trial and order the 

exclusion of the improperly disclosed statements. In fact, when pressed on the 

effective-remedy question during oral argument, the only concrete reasons that 

counsel for Glenn set forth to explain why a postjudgment appeal would not be 

effective was that Glenn might have to face a second trial and possible additional 

pretrial incarceration. But the possibility of retrial does not render the appeal 

mechanism ineffective. Those concerns are present in virtually every criminal 

appeal; that doesn’t mean they are sufficient to convert every interlocutory order 

into a final, appealable order. 

{¶ 25} Glenn insists that this case compels a different result because the 

order requires him to create summaries of the expected witness testimony. But the 

fact that the summaries must be created and disclosed does not establish that any 

harm resulting from the order cannot be effectively remedied in a postjudgment 

appeal. And in this situation, should Glenn’s attorney choose to comply with the 

order, he will have the benefit of knowing in advance that the documents will be 

viewed by the prosecution and the ability to prepare them accordingly, which is not 

the case when an attorney is simply taking interview notes for his own use. We 

therefore fail to understand the dissent’s worries that defense counsel’s providing 

summations of alibi-witness information to the state “inevitably” would amount to 

the disclosure of counsel’s “mental impressions regarding the witnesses’ 

statements,” his “trial strategy,” or his “evaluation of the credibility of witnesses,” 

such that Glenn will be irreparably harmed in the absence of an immediate appeal. 

Dissenting opinion at ¶ 32, 38. 

{¶ 26} Moreover, it is not clear at this juncture exactly what information the 

trial court would deem sufficient to comply with its order. The state sought “reports 

summarizing proposed testimony of defense witnesses.” Although the trial court 

issued a broad directive for defense counsel to provide “written summaries of the 

statements” made by the witnesses, it also appears to have excluded from its order 
SUPREME COURT OF OHIO

 12 

any disclosure of “internal communication of impressions, conclusions, strategy, or 

opinions,” incriminating information, and statements intended to be used only for 

impeachment. It is possible that summaries providing a greater measure of 

specificity regarding the basic timing and location details of the alibi evidence that 

each witness is expected to offer would suffice to comply with the court’s directive. 

In short, the uncertainty surrounding what the trial court would consider 

satisfactory compliance with its order suggests that the order would be better 

reviewed after the situation has fully unfolded. 

{¶ 27} Glenn also contends that an order compelling disclosure of attorney 

work product in a criminal case should be immediately appealable, even if a similar 

order in a civil case would not be. Glenn maintains that his counsel is being 

compelled “to aid in the conviction of [his] own client” and thus the order warrants 

immediate review. But he does not explain how providing summaries of expected 

alibi testimony to the state—while withholding any potentially incriminating 

information—would necessarily aid in his conviction. Rather, the bulk of the 

arguments and supporting caselaw that he presents on that claim relate to his 

contention that the order fails to comply with the discovery rules as outlined in 

Crim.R. 16 and undermines the adversarial nature of the trial system. But those 

arguments go to the merits of the order. Because we conclude that the appellate 

court correctly determined that it lacked jurisdiction to review the order at this time, 

we expressly do not offer any view as to whether the trial court’s order was proper. 

The appropriateness of the order is a question for a later appeal. 

{¶ 28} We agree with Glenn that the specifics of a discovery order 

challenged on appeal should be evaluated on a case-by-case basis. And we do not 

hold that a trial court’s order compelling the disclosure of attorney work product 

may never form the basis of an interlocutory appeal. But R.C. 2505.02(B)(4) is 

clear that such an order is not immediately appealable unless the appealing party 

would be denied an effective remedy in an appeal following the final judgment. In 
January Term, 2021 

13 

view of the nature of the order in this case, which involves defense counsel’s 

creation and disclosure of summaries of the expected testimony of alibi witnesses, 

we cannot conclude that Glenn would lack a meaningful remedy through an appeal 

following final judgment. 

III. Conclusion

{¶ 29} Glenn has failed to establish that the discovery order at issue in this 

case satisfies the requirements of R.C. 2505.02(B)(4) for being a final order. We 

therefore affirm the judgment of the Second District Court of Appeals dismissing 

the appeal for lack of jurisdiction, and we remand the case to the trial court for 

further proceedings. 

Judgment affirmed 

and cause remanded. 

O’CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ., 

concur. 

KENNEDY, J., dissents, with an opinion. 

_________________ 

KENNEDY, J., dissenting. 

{¶ 30} I agree with the majority that “a discovery order compelling the 

disclosure of attorney work product falls within the rubric of ‘discovery of a 

privileged matter’ and is therefore a provisional remedy” within the meaning of 

R.C. 2505.02(A)(3). Majority opinion at ¶ 12, quoting R.C. 2505.02(A)(3); see 

also Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, ¶ 11 

(Kennedy, J., dissenting). I also agree with the majority that appellant, Samuel 

Glenn, has made a sufficient showing that the trial court’s order requiring his 

defense counsel to create and disclose written summaries of the oral statements of 

defense witnesses may be prohibited by the work-product doctrine. 

{¶ 31} However, I part ways with the majority because an appeal following 

final judgment in this case would not afford Glenn a meaningful or effective remedy 
SUPREME COURT OF OHIO

 14 

and the trial court’s discovery order is therefore a final, appealable order pursuant 

to R.C. 2505.02(B)(4). For those reasons, I dissent and would reverse the judgment 

of the Second District Court of Appeals and remand this matter to that court for it 

to address the merits of Glenn’s appeal. 

{¶ 32} This case is not about requiring defense counsel to disclose an

existing written statement of a witness or a recording of a witness’s oral statement. 

Instead, we are faced with an order requiring defense counsel to create and disclose 

written summaries of witnesses’ oral statements. This will inevitably require 

defense counsel to provide his mental impressions regarding the witnesses’ 

statements, which is attorney work product that is entitled to special protection, see 

Upjohn Co. v. United States, 449 U.S. 383, 401, 101 S.Ct. 677, 66 L.Ed.2d 584 

(1981), and would potentially force counsel to become a witness against Glenn, see 

Hickmann v. Taylor, 329 U.S. 495, 512-513, 67 S.Ct. 385, 91 L.Ed. 451 (1947). 

{¶ 33} In this matter, Glenn’s defense counsel has been ordered by the trial 

court “to provide the State with written summaries of the statements made by the 

witnesses [the] defense intends to call regarding defendant’s alibi during defense 

counsel’s (and the defense investigator’s) conversations with such individuals.” 

Glenn maintains that the only way to comply with that order is for defense counsel 

to create the written summaries using counsel’s “own memory and/or notes, 

investigative recall, mental process, recall of conversations with witness[es] or even 

[Glenn].” He argues that requiring defense counsel to create and disclose privileged 

materials violates the public policies acknowledged in Hickman. And Glenn 

submits that because the summaries necessarily would “be produced from the 

mind” of defense counsel and inaccuracies with respect to the witnesses’ statements 

might result, counsel could potentially be called as a witness at trial against Glenn 

if the state uses the statements to impeach the defense witnesses. Therefore, he 

argues, the harm that would be caused by the trial court’s discovery order could not 
January Term, 2021 

15 

be undone through an appeal, and the order is therefore a final, appealable order 

pursuant to R.C. 2505.02. I agree. 

{¶ 34} R.C. 2505.02(B)(4) provides that an appellate court has jurisdiction 

to review, affirm, modify or reverse “[a]n order that grants or denies a provisional 

remedy” when both of the following are satisfied: 

(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. 

{¶ 35} A provisional remedy is “a proceeding ancillary to an action,” 

including a proceeding involving “discovery of privileged matter.” R.C. 

2505.02(A)(3). A discovery order compelling the production of attorney work 

product constitutes discovery of privileged matter and is therefore a provisional 

remedy within the meaning of R.C. 2505.02(A)(3). Smith, 142 Ohio St.3d 411, 

2015-Ohio-1480, 31 N.E.3d 633, at ¶ 5-6. 

{¶ 36} A discovery order that compels defense counsel to reconstruct and 

disclose defense witnesses’ statements relating to the accused’s alibi is a classic 

example of the proverbial bell that cannot be unrung, and the damage that would 

be caused to the accused’s defense by such an error cannot be remedied on appeal. 

See State v. Muncie, 91 Ohio St.3d 440, 451, 746 N.E.2d 1092 (2001). The premise 

of the work-product doctrine’s protection of an attorney’s mental processes is that 

in effectively representing the client’s interests, “it is essential that a lawyer work 

with a certain degree of privacy, free from unnecessary intrusion by opposing 

parties and their counsel.” Hickman, 329 U.S. at 510, 67 S.Ct. 385, 91 L.Ed. 451. 
SUPREME COURT OF OHIO

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As the United States Supreme Court explained in Hickman, “[p]roper 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.” Id. at 511. Were it to be 

otherwise, the court explained, “[a]n attorney’s thoughts, heretofore inviolate, 

would not be his own,” id., resulting in inefficiency, gamesmanship, and unfairness 

that would inevitably harm the client’s right to the effective assistance of counsel, 

see id.

{¶ 37} This is even more true regarding the representation of a person

accused of a crime, whose interest in liberty hangs in the balance. Indeed, the 

Supreme Court has recognized that the role of the work-product doctrine “in 

assuring the proper functioning of the criminal justice system is even more vital” 

than its role in civil litigation. United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 

2160, 45 L.Ed.2d 141 (1975). The court has explained that “[t]he interests of 

society and the accused in obtaining a fair and accurate resolution of the question 

of guilt or innocence demand that adequate safeguards assure the thorough 

preparation and presentation of each side of the case.” Id.

{¶ 38} Requiring an accused’s defense counsel to write down and disclose 

the oral statements of defense witnesses—particularly alibi witnesses—is 

inherently harmful to the accused’s case. This is true even if an appellate court, on 

direct appeal from a judgment of conviction, reverses the conviction and remands 

for a new trial at which the statements may not be used by the prosecution. The 

Supreme Court has recognized that when attorney work product based on 

witnesses’ oral statements is produced in discovery, it reveals either 

communications protected by the attorney-client privilege or “the attorneys’ mental 

processes in evaluating the communications.” Upjohn Co., 449 U.S. at 401, 101 

S.Ct. 677, 66 L.Ed.2d 584. Short of replacing the prosecuting attorney with a 

special prosecutor and a court’s issuing an order restricting access by the new 
January Term, 2021 

17 

prosecutor to any material that could divulge the mental impressions of defense 

counsel, there is no way to assure that the state will not use any information relating 

to defense counsel’s mental processes against the accused, such as defense 

counsel’s trial strategy or evaluation of the credibility of witnesses. Defense 

counsel could also be forced to adopt a different trial strategy, including calling 

different witnesses or abandoning an alibi defense altogether, due to the state’s 

having had access to counsel’s mental processes and impressions about the case. 

And once the state has knowledge of any weaknesses of the defense witnesses, 

nothing would preclude the state from seeking additional damaging evidence that 

would be, in essence, the fruit of the poisonous tree. In the end, it is impossible to 

gauge whether the state will be able to use what it has learned—knowingly or 

passively—to the detriment of the accused at the new trial. 

{¶ 39} Moreover, the disclosure of defense counsel’s mental processes 

involves harms other than the loss of confidentiality. The use of defense counsel’s 

written recollection of defense witnesses’ oral statements would, in effect, turn 

counsel into a witness against his client and potentially cause him to contribute to 

his client’s conviction if the written recollection is used to impeach a defense 

witness. And if there were to be a key inconsistency between the witness’s 

testimony and counsel’s recollection of what the witness had previously said, there 

“would [be] a substantial risk that the lawyer would have to testify,” Nobles at 252 

(White, J., concurring), and defense counsel would be forced to destroy the 

credibility of the accused’s witnesses. These concerns and corresponding 

difficulties were eloquently addressed by Justice Jackson in his concurring opinion 

in Hickman: 

I can conceive of no practice more demoralizing to the Bar than to 

require a lawyer to write out and deliver to his adversary an account 

of what witnesses have told him. Even if his recollection were
SUPREME COURT OF OHIO

 18 

perfect, the statement would be his language permeated with his

inferences. Everyone who has tried it knows that it is almost 

impossible so fairly to record the expressions and emphasis of a 

witness that when he testifies in the environment of the court and 

under the influence of the leading question there will not be 

departures in some respects. Whenever the testimony of the witness 

would differ from the “exact” statement the lawyer had delivered, 

the lawyer’s statement would be whipped out to impeach the 

witness. Counsel producing his adversary’s “inexact” statement

could lose nothing by saying, “Here is a contradiction, gentlemen of 

the jury. I do not know whether it is my adversary or his witness 

who is not telling the truth, but one is not.” Of course, if this practice 

were adopted, that scene would be repeated over and over again. 

The lawyer who delivers such statements often would find himself 

branded a deceiver afraid to take the stand to support his own 

version of the witness’s conversation with him, or else he will have 

to go on the stand to defend his own credibility—perhaps against 

that of his chief witness, or possibly even his client. 

329 U.S. at 516-517, 67 S.Ct. 385, 91 L.Ed. 451 (Jackson, J., concurring). 

{¶ 40} Further, Prof.Cond.R. 3.7(a) generally prohibits an attorney from 

serving as counsel at a trial in which he is likely to be called as a witness. As 

Comment 1 to that rule explains, “[c]ombining the roles of advocate and witness 

can prejudice the tribunal and the opposing party and can also involve a conflict of 

interest between the lawyer and client.” Requiring defense counsel to provide a 

written recollection of defense witnesses’ oral statements could therefore 

necessitate defense counsel’s withdrawal from representation and even deny the 

accused his counsel of choice—which is a fundamental constitutional right, see 
January Term, 2021 

19 

United States v. Gonzalez-Lopez, 548 U.S. 140, 147-148, 126 S.Ct. 2557, 2563, 165 

L.Ed.2d 409 (2006). 

{¶ 41} Compelling counsel to reconstruct oral witness statements from 

memory therefore places counsel in a position that is adversarial to his client and 

brings counsel’s loyalty into question, causing a breakdown in the attorney-client 

relationship that leaves the accused in an untenable position. And although a new 

trial may theoretically provide the opportunity for a fair trial free of the error of 

improper disclosure, it cannot remedy these substantial harms. 

{¶ 42} Because it can never be said with certainty that the harms caused by 

compelling defense counsel to reconstruct and disclose oral statements of defense 

witnesses from memory could be remedied by a new trial following an appeal, I 

would hold that such a discovery order is final and appealable under R.C. 2505.02, 

without any further showing of prejudice to the accused. 

{¶ 43} Glenn has shown that any harm caused by the discovery order 

compelling the disclosure of attorney work product may not be effectively remedied 

by an appeal after final judgment. See R.C. 2505.02(B)(4)(b). I would reverse the 

judgment of the court of appeals and remand to that court for it to consider the 

merits of Glenn’s appeal. Because the majority does not, I dissent.

_________________ 

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and 

Andrew T. French, Assistant Prosecuting Attorney, for appellee.

Anthony Comunale, for appellant. 

_________________