[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Glenn , Slip Opinion No. 2021-Ohio-3369.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2021-O HIO -3369
T HE S TATE OF O HIO , A PPELLEE , v . G LENN , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e 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 orde r 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, 2 021.)
A PPEAL from the Court of Appeal s for Montgomery County, No. 28736.

_______________________ D E W INE , J. {¶ 1} This case is about the timing of an appeal. Samuel Glenn is se t to be tried on a sexual-battery charge. He claims to have an alibi—a nd the judge presiding over the case has orde red Glenn’s attorney to provide information to the prosecution about what Glenn’s a libi witnesses intend to say at trial. Glenn assertsS UPREME C OURT OF O HIO

2 that the judge has made a mista ke; 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 cha llenge the trial judge’s decision: can he appeal now, or does he need to wait un til 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 cour t’s discovery order {¶ 2} Glenn is a high-school teacher. H e was indicted on allegations that he had engaged in sexual conduct with one of his students at hi s 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 amend ed, the notice listed
three locations where Glenn claime d to have been at the time th at the incident was alleged to have occurred and id entified ten people who he says were with him at one point or another that night . The state filed a motion to c ompel discovery, asking
the trial court to order defen se counsel to produce witness sta tements and investigative reports regardi ng the expected testimony of Glenn ’s witnesses. In response, Glenn’s attorney said that he did not have any writte n or recorded witness

statements. {¶ 3} The state later filed a supplemental motion to compel discovery , again requesting “[w]itness statements and/or reports summarizing pro posed testimony
of defense witnesses.” The state was most interested in findin g out the expected testimony of Glenn’s ex-girlfrie nd, 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 e ntire night of the alleged crime. The s tate contended that t his testimony would d irectly 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 a ttorney and refused to talk to any representative of the state or provide a written witness statement. She did, how ever, speak to Glenn’s attorney and a defense investig ator. The state acknowledged th at defense counsel had “verbally relayed the content of those conversations to pro secutors,” but it asked the court to order defense counsel to provide written sum maries of the expected testimony of Glenn’s ex-g irlfriend and other defense w itnesses, 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 t he state’s motion to compel. The trial court determined that Crim.R. 16 m andates disclosure
of written summaries of oral conversations with witnesses and t hat the defense has a reciprocal duty to disclose to the prosecution any evidence t hat tends to support
an alibi. The trial court further noted that even if Crim.R. 1 6 does not mandate such disclosure, the Second District Court of Appeals has held that the local rules of the Montgomery County Court of Comm on Pleas require reciprocal disc overy 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 pr oduct. The court
concluded that disclosures manda ted under the Ohio Rules of Cri minal Procedure supersede the work-product prot ection. It further noted that s uch statements are subject to disclosure only to the extent that they do not conta in “internal communication of impressions, conclusions, strategy, or opinion s.” The trial court
also made clear that its disclos ure order does not apply to inf ormation that would incriminate Glenn or statements intended to be used solely as i mpeachment evidence. With those caveats, the trial court ordered defense counsel “to provide
the State with written summaries of the statements made to defe nse counsel and theS UPREME C OURT OF O HIO

4 defense investigator by the witn esses [the] defense intends to call regarding [Glenn’s] alibi.” And the court warned that the failure to com ply with the order
would result in the exclusi on 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 wa s immediately appealable, because it required him to create written summaries of his oral conversations with witnesses, whi ch 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 “woul d not be afforded a meaningful or effective remedy by an appeal following final j udgment,” 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 Distri ct’s judgment to this court, an d we accepted the case. See 159 Ohio St.3d 1434, 2020-Ohio-3634, 148 N.E.3d 592.
Glenn asserts that an order re quiring an attorney to create and turn over to the prosecution summaries of conversations that the attorney has ha d with potential witnesses is a final, appealable order. He further contends th at an order that compels the disclosure of attorney work product in a criminal c ase 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 jurisd iction 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 h elps 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 o rders in a case must be reviewed in a single app eal after final judgment. See Anderson v. Richards , 173January Term, 2021

5 Ohio St. 50, 55, 179 N.E.2d 918 (1962) (acknowledging “the prin ciple that there should be only one appeal in the cause itself wherein all error s 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 bee n entered, in which claims of [trial] court error at any stage of the litigation ma y be ventilated”). But R.C. 2505.02 provides a limited exception by including within t he definition of a final order certain types of int erlocutory decisions of a trial court. {¶ 11} Relevant here is the provision a ddressing orders granting or de nying a “provisional remedy.” Under R.C. 2505.02(B)(4), an appellate court has jurisdiction to review, affirm, modify, or reverse an “order th at grants or denies a provisional remedy” w hen both of the following circumstances ar e satisfied:

(a) The order in effect determines the action with respect to the provisional remedy and preven ts a judgment in the action in favor of the appealing party wit h respect to the provisional re medy. (b) The appealing party woul d 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 analysi s 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 provisiona l remedy. A provisional remedy is “a proceedi ng 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 disc overy order compelli ng the disclosure of at torney work product falls within the rubric of “discovery of a privileged matter” a nd is therefore aS UPREME C OURT OF O HIO

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 sta te disputes that the order requires the disclosure of attorney wor k product. But at this juncture, we need not resolve the question whether the trial co urt’s order definitively compels the disclosure of protected attorney work product. “To impose such a requirement would force an appellate court ‘to decide th e 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 th e order satisfies the provisional-remedy requirement for appealability, we need revie w only whether
Glenn has made a colorable claim that the order directs him to disclose information that might be protecte d attorney work product. Id. {¶ 14} The trial court ordered Glenn’s attorney to create summaries of his
conversations with defense witne sses. Yet the scope of the ord er is somewhat circumscribed: it suggests that in creating those summaries, Gl enn is not required to disclose any “internal comm unication of impressions, conclus ions, strategy, or opinions,” nor must Glenn provide the prosecution with any incr iminating
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 ad judication 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 di scovery rulesJanuary Term, 2021

7 were designed to “ ‘prevent surprise and the secreting of evide nce 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 pa rty. Crim.R. 16(A) and (H). {¶ 16} Nonetheless, the United States Supreme Court has recognized tha t certain aspects of an attorney’s efforts on behalf of his clien t—reflected in “interviews, statements, memor anda, correspondence, briefs, men tal impressions, personal beliefs, and countless other tangible and intangible w ays”—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 disclos ure of memoranda summarizing an attorney’s oral interviews with witnesses is “particularly disfavored because i t 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 d own regarding witnesses’ remarks”), and Hickman at 516-517 (Jackson, J., concurring) (explaining that “the statement would be [the attorney’s] langu age permeated with his inferences”). We have rec ognized 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 attorney

work-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 Cri m.R. 16(J) explicitly protects “[m]aterials subject to the work product pr otection” from disclosure in criminal cases. By its plain terms, the criminal rule incorporates the work-product doctrine.S UPREME C OURT OF O HIO

8 {¶ 18} The protection for attorney w ork product is not absolute. Squire, Sanders & Dempsey, L.L.P. at ¶ 55, citing Nobles at 239. The protection can be overcome in appropriate circumsta nces by showing a particulariz ed need for the
information. Hickman at 511; 8 Wright & Miller, Federal Practice and Procedure , Section 2025 (3d Ed.1999). And the doc trine is generally under stood as providing a much greater level of protec tion to opinion work product that reveals an attorney’s thought processes than to mere fact work product, such as witne ss statements, that reveal underlying facts without d isclosing 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 t o require “ ‘an exceptional showi ng of need’ ” before it can be d isclosed, 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 prepara tion 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 stra tegy, legal conclusions, or anything else tha t could not be fairly said to be the witness’ own statement” is entitled to signifi cant work-product protection, Goldberg v. United
States , 425 U.S. 94, 106, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976) (clean ed up), “it is possible to [require production o f] ‘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 no tes constitute aJanuary Term, 2021

9 ‘statement’ and include no prot ected material flowing from the attorney’s mental processes”). {¶ 20} For our purposes, though, we need not determine whether Glenn i s correct that compliance with the trial court’s order will impro perly require him to disclose protected work-product in formation; we need only decid e whether he has made a colorable claim that it will. We conclude (and the stat e concedes) that he has. Glenn has set forth at least a plausible theory that comp liance with the court’s order will require him to disclose materials that are protectedby the attorney-workproduct doctrine.
B. The order determines the atto rney-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 o rder meets the second requirement o f R.C. 2505.02(B)(4)(a): “[t]he o rder in effect
determines the action with res pect to the provisional remedy an d prevents a judgment in the action in favor o f the appealing party with res pect to the provisional remedy.” The order directs defe nse counsel to create “written summaries of the
statements made to defense couns el and the defense investigator by the witnesses [the] defense intends to call re garding [Glenn’s] alibi,” and i t provides that the
witnesses will be barred from t estifying if defense counsel fai ls to comply. As this court has previously explained, “[I]t would be impossible to la ter obtain a judgment denying [a] motion to compel disc losure if the party has alread y 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 “d etermines the [attorney-work-product] issue a nd prevents a judgment” in Glenn ’s favor “regarding that issue,” id. at ¶ 20. Indeed, the state concedes that this requirement
also has been satisfied.S UPREME C OURT OF O HIO

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 part y would not be afforded a meani ngful or effective remedy by an appeal following final judgment.” R.C. 2505.02(B) (4)(b). The burden of establishing the appe llate court’s jurisdiction over an interlocutory appeal “falls on the party who knocks on the courthouse doors asking f or interlocutory
relief.” Smith , 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, at ¶ 8. T o meet this burden, Glenn must establish not only that he has a c olorable claim that the order compels the disclosure of attorney work product but a lso that any harm
from its disclosure could not be remedied on appeal from a fina l judgment. Id. at ¶ 5; Burnham at ¶ 20. {¶ 23} Glenn has failed to make such a showing. In his response to th e state’s motion to dismiss his appeal in the Second District, Gl enn offered a single conclusory statement regarding the effective-remedy requirement , asserting that “[o]nce the information is relea sed 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 t hat by creating summaries of witness statements to comply with the cou rt’s order, defense counsel might subject himself to being called to testify agains t Glenn’s witnesses should their testimony deviate from defense counsel’s recollect ions. He addresses the effective-remedy question by claiming, “Arguably, forcing a n attorney into such a situation is not something that can be rectified on dire ct appeal and likely would lead to the conseq uences foreseen in Hickman .” {¶ 24} Although we acknowledge those concerns, there is no reason that
such a situation could not be r ectified in an appeal following final judgment. If that
scenario comes to fruition and th e appellate court determines t hat the trial court’sJanuary Term, 2021

11 discovery order was improper, the n it may grant Glenn a new tri al and order the exclusion of the improperly disc losed statements. In fact, whe n pressed on the effective-remedy question during oral argument, the only concre te reasons that
counsel for Glenn set forth to e xplain why a postjudgment appea l would not be effective was that Glenn might h ave to face a second trial and possible additional pretrial incarceration. But the possibility of retrial does no t render the appeal mechanism ineffective. Those concerns are present in virtually every criminal appeal; that doesn’t mean they ar e 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 ca nnot 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 accor dingly, 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 info rmation to the state “inevitabl y” would amount to the disclosure of counsel’s “mental impressions regarding the w itnesses’ statements,” his “trial strate gy,” or his “evaluation of the cr edibility of witnesses,” such that Glenn will be irrepara bly harmed in the absence of an immediate appeal. Dissenting opinion at ¶ 32, 38. {¶ 26} Moreover, it is not clear at this juncture exactly what informa tion the trial court would deem sufficient to comply with its order. Th e state sought “reports summarizing proposed testimony of defense witnesses.” Although the trial court issued a broad directive for defense counsel to provide “writte n summaries of the statements” made by the witnesses, it also appears to have excl uded from its orderS UPREME C OURT OF O HIO

12 any disclosure of “internal co mmunication of impressions, concl usions, strategy, or opinions,” incriminating informa tion, and statements intended t o be used only for impeachment. It is possible that summaries providing a greater measure of specificity regarding the basi c 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 woul d consider satisfactory compliance with its order suggests that the order would be better
reviewed after the situ ation has fully unfolded. {¶ 27} Glenn also contends that an ord er compelling disclosure of atto rney work product in a criminal case should be immediately appealabl e, even if a similar
order in a civil case would not be. Glenn maintains that his c ounsel is being compelled “to aid in the convic tion of [his] own client” and th us the order warrants
immediate review. But he does not explain how providing summar ies of expected alibi testimony to the state—while withholding any potentially incriminating information—would necessarily a id in his conviction. Rather, t he bulk of the arguments and supporting caselaw t hat he presents on that claim relate to his contention that the order fails to comply with the discovery ru les as outlined in
Crim.R. 16 and undermines the adversarial nature of the trial s ystem. But those arguments go to the merits of the order. Because we conclude t hat the appellate court correctly determined that it lacked jurisdiction to revie w the order at this time, we expressly do not offer any view as to whether the trial cour t’s order was proper. The appropriateness of the orde r is a question for a later appe al. {¶ 28} We agree with Glenn that the specifics of a discovery order challenged on appeal should be e valuated on a case-by-case basi s. And we do not hold that a trial court’s order compelling the disclosure of at torney work product may never form the basis of an i nterlocutory appeal. But R.C. 2505.02(B)(4) is
clear that such an order is not i mmediately appealable unless t he appealing party would be denied an effective remedy in an appeal following the final judgment. InJanuary Term, 2021

13 view of the nature of the order in this case, which involves de fense counsel’s
creation and disclosure of summa ries of the expected testimony of alibi witnesses,
we cannot conclude that Glenn w ould lack a meaningful remedy th rough an appeal following final judgment.
III. Conclusion {¶ 29} Glenn has failed to establish that the discovery order at issue in this case satisfies the requirement s of R.C. 2505.02(B)(4) for being a final order. We therefore affirm the judgment o f the Second District Court of A ppeals 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’C ONNOR , C.J., and F ISCHER , D ONNELLY , S TEWART , and B RUNNER , JJ.,

concur. K ENNEDY , J., dissents, with an opinion.

_________________ K ENNEDY , J., dissenting. {¶ 30} I agree with the majority that “a discovery order compelling th e disclosure of attorney work pr oduct falls within the rubric of ‘discovery of a privileged matter’ and is theref ore a provisional remedy” withi n the meaning of R.C. 2505.02(A)(3). Majority opinion at ¶ 12, quoting R.C. 250 5.02(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 show ing that the trial court’s ord er requiring his
defense counsel to create and di sclose written summaries of the oral statements of
defense witnesses may be prohibited by the work-product doctrin e. {¶ 31} However, I part ways with the majority because an appeal follow ing final judgment in this case woul d not afford Glenn a meaningful or effective remedyS UPREME C OURT OF O HIO

14 and the trial court’s discovery order is therefore a final, app ealable 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 A ppeals 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 wit ness’s oral statement. Instead, we are faced with an order requiring defense counsel t o create and disclose
written summaries of witnesses’ oral statements. This will ine vitably 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 for ce 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 state ments made by the witnesses [the] defense intends to call regarding defendant’s a libi during defense counsel’s (and the defense inve stigator’s) conversations with s uch 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 pr ocess, recall of conversations w ith witness[es] or even [Glenn].” He argues that requiring defense counsel to create a nd disclose privileged materials violates the pub lic policies acknowledged in Hickman. And Glenn
submits that because the summa ries necessarily would “be produc ed from the
mind” of defense counsel and inaccu racies with respect to the w itnesses’ 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 witness es. Therefore, he argues, the harm that would be caused by the trial court’s disc overy order could notJanuary 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 a n appellate cour t has jurisdi ction to review, affirm, modify or reverse “[a]n order that grants or denies a provisional remedy” when both of the fo llowing are satisfied:

(a) The order in effect determines the action with respect to the provisional remedy and preven ts a judgment in the action in favor of the appealing party wit h respect to the provisional re medy. (b) The appealing party woul d 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 procee ding ancillary to an action,” including a proceeding involving “discovery of privileged matte r.” R.C. 2505.02(A)(3). A discovery order compelling the production of attorney work product constitutes disc overy of privileged matter and is there fore 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 de fense counsel to reconstruct a nd disclose defense witnesses’ statements relating to the accused’ s alibi is a classic example of the proverbial bell that cannot be unrung, and the d amage that would
be caused to the accused’s defe nse by such an error cannot be r emedied 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 pr otection of an attorney’s ment al processes is that in effectively representing the client’s interests, “it is esse ntial that a lawyer work with a certain degree of privacy, free from unnecessary intrusi on by opposing parties and their counsel.” Hickman , 329 U.S. at 510, 67 S.Ct. 385, 91 L.Ed. 451.S UPREME C OURT OF O HIO

16 As the United States Sup reme Court explained in Hickman , “[p]roper preparation
of a client’s case demands that he assemble information, sift w hat he considers to be the relevant from the irrelevant facts, prepare his legal th eories and plan his strategy without undue and needless interference.” Id. at 511. Were it to be otherwise, the court explaine d, “[a]n attorney’s thoughts, here tofore inviolate, would not be his own,” id. , resulting in inefficiency, ga mesmanship, and unfairness that would inevitably harm the c lient’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 bala nce. 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 cour t has explained that “[t] he interests of society and the accused in obtaining a fair and accurate resolu tion of the question of guilt or innocence demand that a dequate safeguards assure th e thorough preparation and presentation of each side of the case.” Id. {¶ 38} Requiring an accused’s defense c ounsel to write down and disclo se the oral statements of defense witnesses—particularly alibi wit nesses—is inherently harmful to the accused’s case. This is true even if an appellate court, on direct appeal from a judgment o f conviction, reverses the convi ction and remands
for a new trial at which the sta tements may not be used by the prosecution. The Supreme Court has recognized tha t when attorney work product ba sed on
witnesses’ oral statements is produced in discovery, it reveals either communications protected by the attorney-client privilege or “t he attorneys’ mental processes in evaluati ng 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 a ccess by the newJanuary Term, 2021

17 prosecutor to any material that could divulge the mental impres sions of defense counsel, there is no way to assure that the state will not use any information relating to defense counsel’s mental pro cesses against the accused, such as defense counsel’s trial strategy or evaluation of the credibility of wi tnesses. Defense
counsel could also be forced to adopt a different trial strateg y, including calling different witnesses or abandoning an alibi defense altogether, due to the state’s having had access to counsel’s m ental processe s and impressions about the case. And once the state has knowledge of any weaknesses of the defen se witnesses, nothing would preclude the state from seeking additional damagi ng 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 detrime nt of the accused at the new trial. {¶ 39} Moreover, the disclosure of def ense counsel’s mental processes
involves harms other than the l oss of confidentiality. The use of defense counsel’s
written recollection of defense witnesses’ oral statements woul d, in effect, turn counsel into a witness against his client and potentially cause him to contribute to
his client’s conviction if the w ritten recollection is used to impeach a defense
witness. And if there were to be a key inconsistency between t he witness’s testimony and counsel’s recollecti on of what the witness had pr eviously said, there “would [be] a substantial risk t hat the lawyer would have to te stify,” Nobles at 252 (White, J., concurring), and de fense counsel would be forced to destroy the credibility of the accused’s witnesses. These concerns and cor responding difficulties were eloquently addressed by Justice Jackson in hi s 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 a ccount of what witnesses have told h im. Even if his recollection wereS UPREME C OURT OF O HIO

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 t he 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 wit ness would differ from the “exact” statement the lawyer had delivere d, the lawyer’s statement would be whipped out to impeach the witness. Counsel producing his a dversary’s “inexact” statement could lose nothing by saying, “Her e is a contradiction, gentlem en of the jury. I do not know whether it is my adversary or his witn ess who is not telling the truth, but one is not.” Of course, if t his practice were adopted, that scene would be repeated over and over again. The lawyer who delivers such sta tements often would find himsel f
branded a deceiver afraid to t ake the stand to support his own
version of the witness’s convers ation with him, or else he will have to go on the stand to defend his own credibility—perhaps agains t that of his chief witness, o r possibly even his client.

329 U.S. at 516-517, 67 S.Ct. 385, 91 L.Ed. 451 (Jackson, J., c oncurring). {¶ 40} Further, Prof.Cond.R. 3.7(a) genera lly prohibits an attorney fr om serving as counsel at a trial in which he is likely to be calle d as a witness. As Comment 1 to that rule explains , “[c]ombining the roles of advo cate 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 cou nsel to provide a
written recollection of defense witnesses’ oral statements coul d therefore necessitate defense counsel’s withdrawal from representation an d even deny the
accused his counsel of choice—which is a fundamental constituti onal right, seeJanuary 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 reconstruc t oral witness statements from memory therefore places counsel in a position that is adversari al 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 tria l free of the error of improper disclosure, it cannot rem edy these substantial harms. {¶ 42} Because it can never be said with certainty that the harms caus ed by compelling defense counsel to rec onstruct and disclose oral sta tements of defense witnesses from memory could be remedied by a new trial followin g an appeal, I would hold that such a discovery o rder 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 a ttorney work product may not be e ffectively 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 i t to consider the merits of Glenn’s appeal. Becau se the majority does not, I dis sent.

_________________ Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, an d Andrew T. French, Assistant Pr osecuting Attorney, for appellee. Anthony Comunale, f or appellant.

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