Oral Argument Preview: Is an Order Compelling Production of Allegedly Privileged Information a Final Appealable Order? Darlene Burnham v. Cleveland Clinic, et al.

Update: On December 7, 2016, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On May 4, 2016, the Supreme Court of Ohio will hear oral argument in the case of Darlene Burnham v. Cleveland Clinic, et al., 2015-1127. At issue in this case is whether an order requiring disclosure of material that a party asserts is privileged is a final, appealable order.

Case Background

On March 20, 2014, Darlene Burnham filed a personal injury action against the Cleveland Clinic and Cleveland Clinic Health System (collectively “the Clinic” or “Cleveland Clinic”). The complaint alleged that a Cleveland Clinic employee created a dangerous condition in pouring a clear liquid onto the floor and failing to warn Burnham of the dangerous condition, causing her injuries from the resulting slip and fall.

In discovery, Burnham requested an incident report called a “Safety Event Reporting System” report, or “SERS” report, pertaining to her slip and fall. The Cleveland Clinic objected to the discovery request, arguing that the SERS report was subject to attorney-client privilege, work product privilege, and/or peer review/quality assurance privileges established under Ohio law. Additionally, the Clinic noted that the witnesses to the event and the nurses attending to Burnham after the fall were identified in its discovery responses, and argued that the SERS report was not necessary to obtain the information Burnham needed.

In response to the Cleveland Clinic’s refusal to produce the requested report, Burnham requested an in camera inspection and a privilege log so the trial court could determine whether any privilege existed. After receiving briefs from both parties and reviewing the SERS report itself, the trial court granted Burnham’s motion to compel responses, ordering the Clinic to provide its SERS report to Burnham.

The Cleveland Clinic appealed to the Eighth District Court of Appeals, which asked the parties to file supplemental briefs on whether the matter was a final appealable order pursuant to the Ohio Supreme Court’s recent decision in Smith v. Chen. In a unanimous opinion authored by Judge Mary Eileen Kilbane and joined by Judges Mary Boyle and Sean Gallagher, the Eighth District held that the Cleveland Clinic failed to establish that an immediate appeal was necessary, or that it would be prejudiced by the disclosure of the report. Therefore, according to the Court of Appeals, there was no final, appealable order.

Key Statutes and Precedent

Article IV, Section 3(B)(2) of the Ohio Constitution (Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district.)

R.C. 2505.02(B)(4) (An order is a final order that may be reviewed, affirmed, modified, or reversed when it is an order that grants or denies a provisional remedy to which both of the following apply: (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 and (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.)

Smith v. Chen, 2015-Ohio-1480 (Neither the Ohio Supreme Court, nor the courts of appeals has jurisdiction to consider the merits of an interlocutory order that is not final and appealable. An order granting or denying a provisional remedy is final and appealable only if it complies with both prongs of R.C. 2505.02(B)4). For an order granting discovery of privileged matter to be a final order, an appellant must affirmatively establish that an immediate appeal is necessary in order to afford a meaningful and effective remedy. A mere assertion that disclosure would preclude a meaningful remedy is not good enough)

Cleveland Clinic Health System – East Region v. Innovative Placements, Inc., 283 F.R.D. 362 (After reviewing a copy of a Cleveland Clinic SERS incident report in camera, a federal magistrate judge ruled that the report is protected from discovery by attorney-client privilege and work product doctrine.)

Ramun v. Ramun, 2009-Ohio-6405 (7th Dist.) (The granting of a motion to compel allegedly privileged material or the denial of a protective order is a final appealable order pursuant to R.C. 2505.02(B)(4) because once the material is disclosed and is public, there is no way that the proverbial bell can be unrung.)

Walker v. Taco Bell, 2016-Ohio-124 (1st Dist.) (Merely asserting that there is a privilege and that disclosure requires an immediate appeal is insufficient to establish why an immediate appeal is necessary.)

Cleveland Clinic’s Argument

The Cleveland Clinic argues that it is being compelled to produce a SERS report despite the existence of clear precedent, an unrefuted affidavit establishing that the report is to communicate with counsel, and the availability of other methods of obtaining the information sought by Burnham.

The Cleveland Clinic argues that a final, appealable order is made when an order is entered compelling the production of privileged materials, citing Ramun v. Ramun and a litany of other cases from several district courts of appeals. It argues that such an order is a final, appealable order because once the production occurs, the materials will be divulged and the privilege cannot be restored through later appeal.

The Cleveland Clinic argues for a narrow reading of Smith because, in that case, the appellant failed to establish why there was a final appealable order in the case, and thereby failed to meet the requirements of R.C. 2505.02(B)(4). According to the Clinic, the dismissal in Smith comes notwithstanding the long standing precedent that an order compelling disclosure of privileged material is subject to an interlocutory appeal over which the appellate court has jurisdiction. The Clinic argues that it was not the court’s intent to do away with this precedent, and that the court in Smith did not adopt a new rule nor make it more difficult to maintain an appeal from an order compelling disclosure of privileged material.

Burnham’s Argument

Burnham argues that the SERS report at issue here is not some privileged attorney-client communication, but just a document created in the ordinary course of business, documenting a slip and fall incident. The unnecessary filing of interlocutory appeals like this one has contributed to delays and increased costs of litigation. It is wrong for the court to hold that an order compelling the production of materials is a final, appealable order simply because a party merely claims that an attorney client privilege exists. The Cleveland Clinic failed to prove that the report is entitled to be deemed privileged, and that the Clinic would not be prejudiced by not being able to appeal this matter prior to final judgment.

Burnham notes that Smith stresses that the denial of a provisional remedy is only a final appealable order if both prongs of R.C. 2505.02(B)(4) are established, and argues that, in this case, as in Smith, the Cleveland Clinic has failed to establish that it would not be afforded a meaningful or effective remedy by an appeal following final judgment.

Cleveland Clinic’s Proposed Proposition of Law

An order requiring production of privileged documents, conversations or other materials is a final, appealable order pursuant to R.C. 2505.02(B)(4), thereby conferring jurisdiction over the issue to the court of appeals under Article IV, Section 3(B)(2).

Burnham’s Proposed Counter-Proposition of Law

The Eighth District Court of Appeals correctly held that the defendant failed to affirmatively establish that it would not be afforded a meaningful remedy through an appeal after final judgment is entered pursuant to R.C. 2505.02(B)(4)(b) and also that the appellant failed to demonstrate how it would be prejudiced by the disclosure of the slip and fall incident report.

Amici In Support of the Cleveland Clinic and Cleveland Clinic Health System

The Academy of Medicine of Cleveland & Northern Ohio, filed an amicus brief in support of the Clinic. According to the Academy, the Eighth District’s decision is inconsistent with long standing interpretations of R.C. 2505.02. The Academy asserts that even though this case is about premises liability and not medical malpractice, the peer review and quality assurance privileges are directly impacted by this appeal, and must be protected from discovery.  The inability to take an immediate appeal from an order compelling the discovery of privileged documents renders the privilege illusory and undermines the entire peer review process.

The Academy questions what evidence could possibly be submitted to establish that the appellant would not have an effective post-judgment remedy and whether appealing parties must, when filing a notice of appeal, establish that the documents are actually privileged before an interlocutory appeal would be appropriate. In no case, the Academy argues, is it evident where and how the affirmative showing of entitlement to interlocutory appeal is to be made.

Next, the Academy argues that the Eighth District’s ruling lessens the protections afforded to privileged documents and proceedings, and vests new authority in courts of appeals to determine that a trial court order requiring production of privileged materials do not warrant an intermediate appeal.

Amici, the Ohio Hospital Association and the Ohio State Medical Association, filed a joint brief in support of the Cleveland Clinic. These amici argue that the legislative history of R.C. 2502.02 make it clear that some interlocutory orders, like those compelling the production of privileged information, are so prejudicial that they trigger the right to an immediate appeal. Amici argue that Ohio appellate courts have generally found that compelled disclosure of privileged material is inherently prejudicial and irreparable to the party forced to produce it and that, historically, a party compelled to produce privileged information is not required to make a special, fact-based showing of how it has been injured by the compelled production. Finally, Amici distinguish Smith from the present case, arguing that in this case, unlike in Smith, the Clinic has argued that it would be harmed without interlocutory appeal, has submitted evidence to establish that the information is privileged information, and relied on decisions holding that similar incident reports were privileged communications or attorney work-product protected from disclosure.

Amicus In Support of Burnham

Amicus, the Ohio Association for Justice (“OAJ”), filed a brief in support of Burnham. OAJ notes that this type of report is regularly produced during discovery in premises liability cases without objection, and that property owners normally only attempt to conceal such evidence when the report contains damaging information that undermines their defense. OAJ notes that in this case there is no claim that the SERS report contains any private patient information or the like. It was not prepared by an attorney, nor does it disclose any litigation strategy.

OAJ argues that the Court in Smith rejected the interpretation that authorizes an automatic right to an immediate appeal when a court overrules a claim of privilege and orders the production of documents. The holding in Smith should be reinforced, or even strengthened. Finally, OAJ argues that the defendants will suffer no harm at all if the Burnham is allowed to review the SERS report.

Vote to Hear the Case

Yes: Justices Lanzinger, French, O’Donnell and Kennedy

No: Chief Justice O’Connor and Justices Pfeifer and O’Neill

Student Contributor: Michael Elliott

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