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In re Special Grand Jury Investigation

Court of Appeals of Ohio, Tenth District

March 1, 2018

In re Special Grand Jury Investigation

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 16 CM 41)

         On brief:

          Webster & Associates Co., LPA, Geoffrey E. Webster, and Bryan M. Pritikin; Kegler Brown Hill & Ritter, and Jonathan E. Coughlan, for appellants.

          Michael DeWine, Attorney General, and Anthony J. Molnar, for appellee.

         Argued:

          Geoffrey E. Webster; Jonathan E. Coughlan.

          Anthony J Molnar.

          DECISION

          SADLER, J.

         {¶ 1} Appellants, a rehabilitation and nursing center ("rehabilitation center") and its parent organization, [1] appeal an entry of the Franklin County Court of Common Pleas ordering production of documents alleged by appellants to be protected under the work-product doctrine. Because appellants have not argued or affirmatively established that an immediate appeal is necessary in order to afford a meaningful and effective remedy under R.C. 2505.02(B)(4)(b), we dismiss the appeal for lack of a final, appealable order pursuant to Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480.

         I. CASE BACKGROUND

         {¶ 2} In 2016, during the course of grand jury proceedings, appellee issued a subpoena to appellants requesting internal investigation documentation related to a self-reported incidence ("SRI") report submitted by appellants to the Ohio Department of Health in 2014. Appellants refused to produce certain internal investigation documentation related to the SRI on the grounds that the requested documents were protected under the "work-product privilege" and provided a corresponding privilege log based on a claimed work-product privilege. Appellee filed a motion for a show cause order as to why appellants should not be held in contempt for failing to comply with the subpoenas. Appellants opposed the show cause motion arguing the documents underlying the SRI investigation at issue are not legally required as a part of internal investigations, are not required to be turned over to the state under any law, are instead work product prepared in anticipation of litigation, and are not required to be disclosed for good cause.

         {¶ 3} On May 12, 2017, the trial court found the documents sought by appellee are not work product. Therefore, the trial court ordered appellants to provide the requested documents to appellee before a certain date as appellee had failed to show cause why it should not be held in contempt. Enforcement of the order to produce the documents is stayed pending appeal.

         {¶ 4} Appellants filed a timely appeal to this court, presenting two assignments of error:

[1.] THE TRIAL COURT ERRED IN FINDING APPELLANTS' COUNSELS INTERNAL INVESTIGATION WAS NOT PROTECTED, ...

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