What’s On Their Minds: 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.

“We have an incident report on the date, time, location and the witnesses who observed an alleged slip and fall. What’s privileged about that… How would we prevent all discovery from getting locked up in a ‘privileged’ category?” Justice O’Donnell, to defense counsel.

“But isn’t the prejudice the release of the privileged information?” Justice Lanzinger, to plaintiff’s counsel.

On May 4, 2016, the Supreme Court of Ohio heard 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

Darlene Burnham sued the Cleveland Clinic and Cleveland Clinic Health System (collectively “the Clinic” or “Cleveland Clinic”) for personal injuries arising out of a slip and fall on Clinic premises.  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.

In discovery, Burnham sought the identity of witnesses, witness statements, and the incident report, known as the “Safety Event Reporting System” report, or “SERS” report. The Cleveland Clinic objected to most of the discovery requests, particularly the request for the incident report, 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.

Burnham then filed a motion to compel discovery responses, including the SERS report. After receiving briefs from both parties and reviewing the SERS report itself in an in camera inspection, 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, 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 immediate disclosure of the report. Therefore, according to the Court of Appeals, there was no final, appealable order, and the appeal was dismissed.

Read the oral argument preview of this case here.

Key Statutes and Precedent

R.C. 2505.02 (A)(3) (A proceeding for discovery of privileged matter is a provisional remedy.)

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 Supreme Court of Ohio 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)

At Oral Argument

Arguing Counsel

Bret C. Perry, Bonezzi Switzer Polito & Hupp Co. L.P.A., Cleveland, for Appellants Cleveland Clinic and Cleveland Clinic Heath System

Alexander L. Pal, Obral, Silk & Associates, LLC, Cleveland, for Appellee Darlene Burnham

Cleveland Clinic’s Argument

The court needs to clarify and restore 20 years of precedent with regard to privileged material under R.C. 2505.02(B)(4). Despite saying in Smith v. Chen that no new rule was being announced, the decision in that case is being misconstrued by a number of lower courts. Chen was dismissed for failure to respond to the Supreme Court’s show-cause order (as to why the case should not be dismissed for lack of jurisdiction.) The decision in Chen needs to be clarified to explain that the party asserting the privilege does not need to make an affirmative showing of prejudice if the documents are disclosed. The mere disclosure of these documents is the prejudice. The document is privileged by its very nature. There need be no showing of “truly” or “absolutely” privileged.

The court need not be concerned with opening floodgates of interlocutory appeals. No new avenue of discovery is being asserted as being under privilege. The only privileges that can be considered are those supported either by statute or common law—attorney client privilege, work product, peer review and quality assurance statutory protections, and perhaps trade secrets. Appeals courts can still dismiss cases that don’t fall under one of these defined areas of privilege.

At issue in this case is attorney-client privilege. The Clinic produced an affirmative, unrefuted affidavit establishing the protected nature of the SERS report. In-house counsel is involved in the preparation and review of the incident report and then if litigation ensues beyond the investigation stage, it is turned over to outside counsel. So the SERS report was created as part of specific policies and procedures with respect to risk management and in anticipation of litigation. That is the policy of the Cleveland Clinic.

Even though the SERS report is privileged, this does not foreclose discovery by the plaintiff. The plaintiff can depose the individuals involved in the slip and fall (although defense counsel admitted at oral argument that the janitor the plaintiff believed responsible for what was on the floor could not be located or produced for deposition.)

Once a privileged document has been produced, the bell cannot be unrung, which is why there is no meaningful remedy after judgment here, and why this is a final appealable order. The appeals court decision must be reversed.

Burnham’s Argument

This court’s holding in Chen clarified and reminded the appellate courts that only those cases that truly require an immediate appeal should be permitted. The party asserting the privilege must affirmatively establish that it needs an immediate appeal. This is a simple slip and fall incident report that was created at the time Burnham fell. The Cleveland Clinic has not affirmatively established that this incident report is so protected that an immediate appeal is necessary.

The incident report in this case was designed to gather the facts and Burnham’s statement as to what happened. While the plaintiff hasn’t seen the incident report, she is not asking for any privileged communication between attorney and client—just the facts surrounding the incident, and any statements by witnesses or Burnham herself. Only after Burnham filed a motion to compel did the Clinic even provide the name of the person Burnham believes responsible for what was on the floor, or wasn’t being cleaned up, and then the Clinic has been unable to produce this witness (the janitor) for deposition. All the plaintiff is trying to do is get the true information gathered at the scene.

What Was On Their Minds

Smith v. Chen

How can Smith v. Chen be distinguished, asked Justice French?

What needs to be clarified in Smith v. Chen asked Justice O’Donnell? What is it that is being misconstrued in that decision? What should the court write here (he asked, as he nearly always does, unless someone beats him to the punch.) Has the right to appeal from the determination to disclose been foreclosed in Chen? Is Justice Kennedy’s prescient dissent in Chen coming true around the state of Ohio? (O’Donnell was with the dissenters in Chen.)

Are there courts now taking the position that Smith v. Chen said there must be an affirmative showing of prejudice before an order that was granted on privileged material can be even reviewed, asked Justice Lanzinger? What type of evidence of prejudice are courts looking at? Could the Supreme Court take the position that Chen itself stated it was not adopting a new rule, and that the cases cited in the dissent in Chen are still good law?

Isn’t defense counsel asking the court to overrule Smith v. Chen, asked Justice O’Neill, who authored it. He noted that he understood the unrung bell concept. But the court in Chen said the burden falls on the party who knocks on the courthouse doors asking for interlocutory relief. So where in this case did the Cleveland Clinic demonstrate the requisite prejudice?

The Incident Report

After the slip and fall, how much time elapsed before the incident report was prepared, asked Justice O’Donnell? Was counsel involved in the preparation of the incident report? Was the report ever produced in redacted form? Were the names of witnesses disclosed? Did the trial court ever determine if the incident report was privileged, or did the court just order it disclosed? (answer from defense counsel: just ordered it disclosed.) Are incident reports in the retail context, like Dillard’s or Kroger’s also privileged documents?

The Clinic seems to be arguing that an incident report that is formulated by the employees of an institution to safeguard everyone who is there, if it is reviewed by a lawyer, that’s it, the doors are closed, commented Justice O’Neill. (Defense counsel responded that in this specific case, that’s exactly what he was saying.)

Exactly which privilege is being asserted in regard to the incident report, asked Justice Pfeifer? (defense answer: attorney-client privilege) The whole report was formulated at the request of the hospital attorney? Or did counsel review it after other people had prepared it? Counsel wasn’t involved until it had a ribbon around it? Later, he asked, what exactly was it that was critical to the plaintiff’s case that the plaintiff was not able to receive from the Cleveland Clinic? (answer from plaintiff’s counsel was that he wanted the name of the janitor who knew what was on the floor and how it got there, and had to file a motion to compel even to get that name. He also wanted any statements made by the plaintiff, which he has not gotten.) So, is the critical piece of evidence the plaintiff is missing the plaintiff’s statement to Clinic employees, Pfeifer asked? In rebuttal, he asked defense counsel why any such statements shouldn’t have to be turned over. A little cat-and-mouse game ensued in which the Chief joined—defense counsel first said there were no statements, then said such statements could be discovered if the proper measures were taken under Civil Rule 26, then demurred when asked if the statements were discoverable if in the incident report. Back to square one there.

Are all these incident reports classified under attorney client privilege, asked Chief Justice O’Connor? Under all circumstances, are incident reports ordered by legal counsel? Is there a standing order, from the litigation department that all incident reports are to be prepared and submitted to legal counsel? So all incident reports are considered privileged by the Clinic because of the policy that it has in place and the following of that policy by the staff at the Clinic? But the names of the witnesses and that sort of thing would be disclosed to plaintiff’s counsel? Later, she asked plaintiff’s counsel why the incident report should not be considered privileged. She got into a protracted exchange with plaintiff’s counsel, sounding like an advocate for the defense, asking for whose benefit the incident report was prepared, noting that it was done in anticipation of litigation, and pursuant to Clinic policy. Later, in rebuttal, she asked defense counsel where any statements of the plaintiff would be if not in the incident report.

Is the incident report to be an umbrella that protects all of the investigation as attorney client privilege, asked Justice Lanzinger? Anything that is included in the incident report that is substantive is to be protected as attorney client privilege?

Establishing Prejudice

In a key question of the day, Justice O’Donnell asked what meaningful remedy there would be if a privileged document were disclosed?

What would be an example of actual prejudice that was shown that would allow for a final appealable order, asked Justice Lanzinger? In another key question of the day, she asked, if Chen is being interpreted as now requiring a showing of actual prejudice, what is the type of evidence that would need to be presented to show actual prejudice?

Privilege versus Finality

Isn’t this a finality case, not a privilege case, asked Justice O’Donnell? Isn’t the issue whether there is a final appealable order? Is an order to produce a privileged document a final appealable order? Later, in a key observation of the day, O’Donnell commented to plaintiff’s counsel that he seemed to be arguing about whether the incident report was privileged, while the issue before the court was whether there was a final appealable order, and that while the two are related, the question of whether the incident report itself was privileged was not before the court. (answer from plaintiff’s counsel: that has to be analyzed in some respect in order to determine whether prong (b) of R.C. 2505.02(B)(4) is satisfied.) In another key question, O’Donnell asked, if the court were to determine that this is a final appealable order, and the case was remanded to the appeals court, can the appeals court review and determine if the incident report is or isn’t privileged or can it be remanded to the trial court for a determination on whether the report is privileged? Is there separation between the finality and the privilege issue?

Justice Lanzinger commented that what the court was trying to find out here was, from the perspective of the court of appeals, was this is a final appealable order?

Chief Justice O’Connor asked whether the defense wanted the trial court to put on the record why the court was ordering the release of this document, why it was not privileged, so the appeals court could make a decision upon review of the document. (answer: yes.)

How It Looks From the Bleachers

To Professor Emerita Bettman

Like a win for the Cleveland Clinic, probably by a vote of 5-2, on the ground that there is a final appealable order in this case. I think the court is going to re-iterate its longstanding view that an order compelling disclosure of allegedly privileged information is a final appealable order, and will clarify that no affirmative showing of prejudice need be made by the party asserting the privilege in order to be entitled to an interlocutory appeal under R.C. 2505.02(B)(4). The court will likely state that prejudice is inherent from the disclosure of a privileged document, and once disclosed, the bell cannot be unrung. The court may advise trial courts to state specific reasons for why the information sought is or is not privileged, so an appeals court can better determine whether both prongs of R.C. 2505.02(B)(4) are met.

I don’t think the court is going to determine whether or not the SERS incident report actually is privileged in this case. That is not the issue literally before the court, as Justice O’Donnell pointed out, although as plaintiff’s counsel argued, finality and privilege are certainly interrelated. The court will likely discuss the privilege issue, with Chief Justice O’Connor seemingly most inclined to believe the SERS report was privileged; Justice Pfeifer least so.

It is not entirely clear what the court is going to do with Smith v. Chen. Even though the court held in Chen that it was not announcing any new rule of law, if the court “clarifies” Chen as the Clinic suggests, it is essentially adopting the dissent position in that case. The justices in the majority in Chen were opinion author O’Neill (who was surprisingly quiet in the Burnham argument, perhaps feeling his decision was under attack), Chief Justice O’Connor, and Justices Lanzinger and Pfeifer. I think  Justice Lanzinger and the Chief are going to go for the Clinic here, along with the three dissenters from Chen.  The court could distinguish Chen on the ground that in Chen the party asserting the privilege failed to satisfy prong (b) of R.C. 2505.02(B)(4), while in this case the Clinic did so, although I don’t think that is really a legitimate distinction.

The discovery issue raised in this appeal is oft-debated. If the party asserting the privilege is forced to disclose a truly privileged document, and has to wait until the case is over to appeal, it has lost any meaningful remedy. On the other hand, if an interlocutory appeal turns out to be unjustified, years are lost and much money wasted. This is nothing new; this battle has gone on for years. Justice Pfeifer, the most skeptical of the justices over the merits of the Clinic’s claim of privilege, put his finger on another set of problems—just because a lawyer is involved in some manner with the incident report does not mean the entire document is privileged. Although defense counsel in this case breezily assured the court that the Clinic turned over witness names to plaintiff’s counsel, plaintiff’s counsel argued that he had to file a motion to compel to get the name of the key person in the case-the janitor.  Furthermore, the Clinic and its amici threw in privileges like peer review and quality assurance in their arguments and briefing, even though neither seemingly has anything to do with a simple slip and fall incident report. Justice O’Donnell asked an interesting question when he asked if the same privilege arguments would be made for slip and fall incident reports from places like Kroger’s or Dillard’s.

One bit of consolation for the plaintiff in this case. As I taught my torts students, slip and fall cases are hard for plaintiffs to win, for they have to show what was on the floor, and whether it was there long enough to be cleaned up. If I were on this jury (and I’d probably be kicked off for wearing my plaintiff’s heart on my sleeve) I’d be very suspicious of the fact that the Cleveland Clinic can’t find the janitor involved in the case, and was unable to produce her for deposition.

To Student Contributor Michael Elliott

This one looks like a pretty clear win for the Cleveland Clinic. I think the court is going to find that the trial court’s order was a final, appealable order, overturning the Eighth District’s decision below.

The Chief Justice looks likely to side with the Clinic, and noted that Chen did not create any new burdens at appeal on parties asserting privilege. Further, although she kept her usual silence at argument, given her dissent in Chen, it’s safe to assume that Justice Kennedy will side in the Clinic’s favor along with Justices O’Donnell and French, who joined Kennedy’s dissent in that case.

There was some concern cited by Justices O’Donnell and Lanzinger that a ruling in favor of the Clinic would result in an abundance of claims that documents were subject to privilege. Counsel for the Clinic dispelled this concern, arguing that any claimed privilege must fall under one of a number of statutorily established exceptions.

On the other side, counsel for Burnham struggled with some key questions from Justices O’Donnell and Lanzinger. He agreed with Justice O’Donnell that an order to produce a privileged document is a final, appealable order, noting only that R.C. 2505.02(B)(4) requires that an appealing party must establish that it lacks any meaningful remedy at the end of the case. When Justice Lanzinger asked what would be considered an example of actual prejudice that would enable an interlocutory appeal, counsel for Burnham stumbled for an answer, only asserting that the document would have to be shown to be “an actual communication between attorney and client.”

There was some discussion about whether or not the SERS report itself was actually entitled to privilege (Chief Justice O’Connor seems to buy that there definitely was privilege here). I don’t think that the court will weigh in on this, and will leave this up to the lower courts to determine. As Justice O’Donnell clarified with both counsel during oral argument, the issue of whether the trial court’s order was a final, appealable order is separate from whether the document in question is entitled to privilege. That said, I think certainly it helps that the Cleveland Clinic seems to have put forth some effort to justify its assertion of privilege and establish why an appeal after final judgment is not an effective remedy. This distinguishes the case from Chen, where privilege was doubtful, and the court ultimately held that the parties failed to establish the need for an interlocutory appeal.


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