The Goldberg Law Firm Co., LPA

The Goldberg Law Firm Co., LPA

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Privileged Material Appellate Issues

A word to the wise: when appealing the discovery of privileged material ordered by the trial court, it must be established that there is no meaningful or effective remedy by an appeal following the final judgment.  The Ohio Supreme Court recently, and sua sponte, overturned the Tenth District's conclusion that a trial court's order compelling the disclosure of privileged material was a final appealable order.  The decision in Smith v. Chen is short, however the ramifications will likely reverberate until Ohio attorneys catch up with the new requirement.  The majority based its decision on the fact that the determination of whether an order is a final appealable one, is drafted as a two-part inquiry.  An order is final and appealable

only if it has the effect of “determin[ing] the action with respect to the provisional remedy and prevent[ing] a judgment in the action in favor of the appealing party with respect to the provisional remedy” and “[t]he 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.” R.C. 2505.02(B)(4)

It's hard to ignore the dissent penned by Justice Kennedy.  As noted, almost every district in Ohio, which squarely addressed the issued, has held that an appeal from the order compelling the disclosure of privileged material after a final judgment is not a meaningful remedy.  Compelling disclosure begs the proverbial question of "how to unring the bell."  Once privileged information is compelled, its is no longer privileged in any sense of the word.  

Although the majority decision was technically correct to note that the final appealable order analysis is a two-part one, it is hard to imagine the situation in which an appeal after the final judgment in the action would be an effective remedy to the trial court's judgment compelling the disclosure of privileged information.  Once the privileged material is out, it's out.  Moving forward, any party seeking to file an interlocutory appeal of a discovery decision involving the disclosure of privileged information must be sure to address both parts of the test.  In other words, it must be established that the direct appeal is inadequate.  Likely that will become a perfunctory statement in light of the overwhelming majority of Districts in Ohio allowing those appeals in the past.