Does Compelling the Disclosure of Documents Allegedly Protected by Attorney-Client Privilege Constitute a Final, Appealable Order?

By Malorie A. Alverson, Esq.

Last month, the Ohio Supreme Court issued a ruling in Burnham v. Cleveland Clinic, 2016-Ohio-8000, on an interesting issue – “whether an order compelling the production of documents allegedly protected by the attorney-client privilege is a final, appealable order under R.C. 2505.02(B)(2).” The short answer is yes.

In March 2014, Appellee Darlene Burnham brought a personal-injury action against the Clinic and certain Clinic employees. During discovery, Burnham requested identification of any person who had made statements or reports about her accident and copies of any written statements or reports. The Clinic alleged that the report was not discoverable because it was shielded by various discovery protections, including the attorney-client privilege. Burnham filed a motion to compel discovery and the trial court ordered the Clinic to produce the incident report. The Clinic appealed to the Eighth District Court of Appeals, arguing that the incident report was protected by the attorney-client privilege and was not discoverable. The Eighth District dismissed the appeal for lack of jurisdiction, holding that there was no final, appealable order to review because the Clinic had failed to affirmatively establish that there would be prejudice resulting from disclosure of the incident report sufficient to satisfy R.C. 2505.02(B)(4). The Clinic appealed and the Ohio Supreme Court accepted jurisdiction.

In a 3-3-1 Opinion, the Ohio Supreme Court held that “an order requiring the production of information protected by the attorney-client privilege causes harm and prejudice that inherently cannot be meaningfully or effectively remedied by a later appeal. Thus, a discovery order that is alleged to breach the confidentiality guaranteed by the attorney-client privilege satisfies R.C. 2505.02(B)(4)(b) and is a final, appealable order that is potentially subject to immediate review.” The Ohio Supreme Court went on to state that other discovery protections that do not involve common law, constitutional, or statutory guarantees of confidentiality, such as the attorney work-product doctrine, may require a showing under R.C. 2505.02(B)(4)(b) beyond the mere statement that the matter is privileged.

Ultimately the Ohio Supreme Court found that the order compelling disclosure was a final appealable order because the Clinic had plausibly alleged that the attorney-client privilege would be breached by the disclosure of the requested materials. The Court reversed the dismissal of the appeal and remanded the case back to the court of appeals to determine whether the trial court erred in ordering the incident report released.