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Daher v. Cuyahoga County Community College District

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 2, 2017

GEORGE DAHER PLAINTIFF-APPELLEE
v.
CUYAHOGA COUNTY COMMUNITY COLLEGE DISTRICT, ET AL. DEFENDANTS [Appeal By Cuyahoga County Court Reporter]

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-852177

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor BY: Nora E. Graham Assistant Prosecuting Attorney The Justice Center.

          ATTORNEYS FOR APPELLEES For George Daher John W. Gold Also Listed For Cuyahoga Community College District and Beverly Bankston Barry Y. Freeman Buckingham, Doolittle & Burroughs, L.L.C.

          BEFORE: Celebrezze, J., Boyle, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., JUDGE.

         {¶1} Appellant, a Cuyahoga County Court Reporter ("court reporter"), filed the instant appeal challenging the trial court's judgment holding the court reporter's motions to quash plaintiff-appellee George Daher's ("Daher") subpoena and for a protective order in abeyance and ordering the court reporter to produce grand jury materials to the trial court for an in camera inspection. Specifically, the court reporter argues that Daher failed to comply with R.C. 2939.11 and that the trial court lacked authority to order release of the grand jury materials. After a thorough review of the record and law, we dismiss the case for lack of a final appealable order.

         I. Factual and Procedural History

         {¶2} Daher was employed by Cuyahoga Community College District from September 2012 to April 2015. The events that led up to and resulted in his termination formed the basis for subsequent criminal and civil proceedings in the Cuyahoga County Court of Common Pleas. It is undisputed that the court reporter is not a party to the civil action from which the instant appeal arose.

         {¶3} In Cuyahoga C.P. No. CR-15-599959, the Cuyahoga County Grand Jury returned an indictment in October 2015 charging Daher with two counts of unauthorized use of property - computer, cable, or telecommunication property, in violation of R.C. 2913.04. A second indictment was issued in December 2015 charging Daher with 24 counts of unauthorized use of property. The trial court granted the state's motion to dismiss the case without prejudice on February 3, 2016. On March 15, 2016, the trial court amended its judgment entry and dismissed the case with prejudice. The trial court ordered the record of Daher's criminal case to be sealed pursuant to R.C. 2953.52.

         {¶4} In Cuyahoga C.P. No. CV-15-852177, Daher filed a civil complaint against the college and Beverly Bankston, an administrative lieutenant with the campus police and security services, on October 6, 2015. Daher asserted claims for public policy violations, discrimination, retaliation, and intentional interference with prospective employment. Daher amended his complaint on April 21, 2016, to add a malicious prosecution claim. Specifically, Daher alleged that defendants maliciously instituted the criminal proceedings against him by filing a false, defamatory, and incomplete complaint to the Cuyahoga County Prosecutor's Office for the purpose of retaliating against him. Daher further alleged that the criminal prosecution was not supported by probable cause.

         {¶5} On May 5, 2016, Daher filed a subpoena ordering the court reporter to produce "all transcripts, notes & exhibits from grand jury proceedings" pertaining to his criminal prosecution. The court reporter filed motions to quash Daher's subpoena and for a protective order, arguing that (1) grand jury proceedings are secret, (2) the requested materials were privileged, and (3) that Daher failed to demonstrate a particularized need for disclosure that outweighed the need for secrecy.[1]

         {¶6} In opposing the court reporter's motions to quash the subpoena and for a protective order, Daher argued that he needed the grand jury materials to overcome the presumption that probable cause existed to prosecute him, establish the elements of his malicious prosecution claim, and to impeach Lieutenant Ronald Wynne of the college's campus police and security services. Daher further asserted that the motions were "a transparent attempt to prevent the discovery of potentially perjurious testimony that is directly relevant to [Daher's] malicious prosecution claims[.]"

         {¶7} On July 15, 2016, the trial court held the court reporter's motions to quash and for a protective order in abeyance and ordered the court reporter to produce the grand jury materials requested in Daher's subpoena to the court for an in camera inspection.

         {¶8} The court reporter filed the instant appeal challenging the trial court's judgment. The court reporter assigns one error for review:

I. The trial court erred in ordering the court reporter to produce secret grand jury materials in violation of its statutory duty under R.C. 2939.11 to keep grand jury materials secret because the trial court in this civil action lacks authority to order disclosure of grand jury transcripts in response to a civil subpoena and [Daher] failed to file the mandatory petition with the supervising court of the grand jury.

         II. Law and Analysis

         A. Final ...


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