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Talani v. Manorcare Inc.

Court of Appeals of Ohio, Eleventh District

September 30, 2013

MANORCARE, INC., et al., Defendants-Appellants.

Civil Appeal from the Lake County Court of Common Pleas, Case No. 11CV001547.

Larry S. Klein and Christopher J. Carney, Klein & Carney Co., L.P.A. and Tobias J. Hirshman, McCarthy Lebit Crystal & Liffman Co., L.P.A., For Plaintiff-Appellee.

Beth A. Nagel and Dirk E. Riemenschneider, Buckingham, Doolittle & Burroughs, LLP and G. Brenda Coey, Buckingham, Doolittle & Burroughs, LLP, For Defendants-Appellants.



(¶1} Appellants, Manorcare, Inc., et al., appeal from the judgment of the Lake County Court of Common Pleas denying, in part, their motion for a protective order, entered in the course of discovery, relating employee information contained in Manorcare's employment files. For the reasons discussed in this opinion, we affirm the trial court's judgment.

(¶2} On June 21, 2011, appellee, Mark Talani, Executor of the Estate of Ruth M. Talani, deceased, commenced a nursing-home negligence and wrongful death action against appellants. Appellee alleged appellants' employees were negligent in transferring the deceased from her bed and, as a result, she suffered injuries that eventually led to her death. Appellants filed an answer denying the allegations.

(¶3} During discovery, appellee requested appellants to produce documents concerning the personnel files of two employees. Appellants objected, arguing the discovery sought privileged information. Appellee moved to compel appellants to respond, asserting the personnel files were necessary to establish his negligent supervision claim. Appellee further requested the trial court to conduct an in-camera inspection of the documents. Appellants opposed appellee's motion, asserting the discovery request was overly broad; appellants also requested the court to inspect the files in camera. The trial court subsequently ordered appellants to produce the documents for the court for in-camera inspection.

(¶4} Prior to the in-camera review, appellants moved the court to enter a protective order on the files. Appellants argued that the files requested included personal and confidential information that was irrelevant to appellee's cause of action. Appellants further argued that appellee failed to identify how the files would likely yield admissible evidence. Thus, they concluded, the request for discovery was a mere "fishing expedition."

(¶5} Appellee filed a memorandum in response to appellants' motion for protective order, asserting the discovery was sufficiently tailored to the matters at issue. In particular, appellee asserted the files would yield relevant information regarding the appellant-nursing home's potential negligence regarding employee training and hiring, as well as its potential negligence in its oversight of its employees and its patients.

(¶6} Appellants complied with the court's order to produce the files for in-camera inspection. Additionally, appellants appear to have provided the court with "privilege logs" that briefly detailed the general contents of the files and the bases for asserting privilege. The "logs, " however, were not filed with the court, and there is no indication they was served on appellee. Thus, the privilege logs were ostensibly submitted ex parte and were not made part of the trial court record.

(¶7} After reviewing the files and the privilege logs, the trial court issued its judgment. The court determined that appellants were not required to produce employee social security numbers; employee compensation/benefit information; employee medical information; and, the court determined, appellants were not required to produce any performance evaluations or other similar materials relating to events occurring after the incident that led to the underlying lawsuit. The remaining information in the files, the court determined, was discoverable. The discoverable information included documentation relating to the employees' applications for employment; their references; their licensure; their criminal background review; driver's license information; and educational/training background.

(¶8}From this judgment, appellants filed the instant appeal and assign three errors for this court's review. Their first assignment of error provides:

(¶9} "R.C. 3721.121(E) provides that criminal background checks are not public records and are available for review under limited circumstances and by a discreet list of individuals. Did the trial court err by ordering discovery of criminal background check reports in a nursing home negligence and wrongful death case?"

(¶10} Appellants, under their first assignment of error, rely solely on their claim that R.C. 3721.121(E) operates to bar discovery of criminal background check reports. Appellee, however, points out that R.C. 3721.121 was not argued as a basis for protecting the files from discovery in any of appellants' pleadings of record. Rather, the only reference to R.C. 3721.121(E) occurs in appellants' privilege logs. According to appellee, however, these logs were produced for the court with the records submitted for in-camera inspection, but were neither served on him nor made part of the record. Hence, appellee asserts the logs were neither made part of the trial court record nor were they ...

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