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Buckeye Corrugated, Inc. v. Cincinnati Insurance Company

Court of Appeals of Ohio, Ninth District

August 14, 2013

BUCKEYE CORRUGATED, INC. Appellant
v.
THE CINCINNATI INSURANCE COMPANY Appellee

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV-2011-05-2467

MICHAEL BRITTAIN and K. JAMES SULLIVAN, Attorneys at Law, for Appellant.

NANCY K. TORDAI, Attorney at Law, for Appellee. RONALD H. ISROFF, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

WHITMORE, Judge.

(¶1} Appellant, Buckeye Corrugated, Inc. ("BCI"), appeals from the judgment of the Summit County Court of Common Pleas, granting The Cincinnati Insurance Company's ("CIC") motion to compel discovery. This Court reverses.

I

(¶2} In 2005, Roy Allen, a former BCI director, shareholder, and employee, filed suit against BCI. In a separate action, BCI filed suit against Allen. The court consolidated the cases and counterclaims were filed.

(¶3} It is undisputed that some, but not all, of Allen's claims were covered by BCI's insurance policy with CIC. BCI, with CIC's consent, hired counsel to defend the suit against Allen. In accordance with the policy terms, BCI's attorneys kept CIC's attorney informed on the progress of the litigation, including discussions of settlement. A settlement between BCI and Allen was eventually reached. See Allen v. Bennett, 9th Dist. Summit No. 25252, 2011-Ohio-1210.

(¶4} In May 2011, BCI filed a complaint against CIC for breach of contract, bad faith, and a declaratory judgment concerning the allocation of obligations under the BCI/Allen settlement agreement. CIC filed a motion for discovery, seeking comprehensive disclosure of all documents and communications related to Allen's lawsuit against BCI, BCI's lawsuit against Allen, and the counterclaims. Additionally, CIC sought discovery of documents related to a lawsuit brought against BCI by a Scott Allen. BCI filed a memorandum in opposition to CIC's motion to compel, arguing the communications and documents were protected by attorney-client privilege and/or work-product.

(¶5} Based on CIC's motion to compel and BCI's brief in opposition, the trial court granted CIC's motion and ordered BCI to disclose all requested documents, materials, and communications. BCI now appeals and raises three assignments of error for our review. To facilitate the analysis, we rearrange and consolidate some of the assignments of error.

II

Assignment of Error Number One

THE TRIAL COURT ERRED IN GRANTING CIC'S MOTION TO COMPEL THE PRODUCTION OF [BCI'S] PRIVILEGED INFORMATION ON THE GROUNDS THAT (1) THE INFORMATION IS EXEMPT FROM THE PROTECTIONS OF THE ATTORNEY-CLIENT PRIVILEGE; AND (2) [BCI] MADE A SUBJECT-MATTER WAIVER OF ITS PRIVILEGED INFORMATION.

(¶6} In its first assignment of error, BCI argues that the court erred in concluding that the information requested by CIC was not privileged.

(¶7} "Ordinarily, a discovery dispute is reviewed under an abuse-of-discretion standard. However, if the discovery issue involves an alleged privilege, as in this case, it is a question of law that must be reviewed de novo." (Internal citations omitted.) Ward v. Summa Health Sys., 128 Ohio St.3d 212, 2010-Ohio-6275, ¶ 13.

Attorney-Client Privilege

(¶8} "The attorney-client privilege is one of the oldest recognized privileges for confidential communications." Squire, Sanders & Dempsey, LLP. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, ¶ 16, quoting Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). "The privilege is intended to encourage 'full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.'" Swidler & Berlin at 403, quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). "In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by ...


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