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In re Special Grand Jury Investigation of Medicaid Fraud and Nursing Homes

Court of Appeals of Ohio, Tenth District

June 25, 2019

In re: Special Grand Jury Investigation of Medicaid Fraud and Nursing Homes,

          C.P.C. No. 16CM-41

          Dave Yost, Attorney General, and Anthony J. Molnar, for appellee.

          Webster & Associates Co., LPA, Geoffrey E. Webster, and Conrad Dillon, for appellants.


          KLATT, P.J.

         {¶ 1} This appeal arises from grand jury proceedings before the Franklin County Court of Common Pleas. The appellants are a rehabilitation and nursing center and its parent organization. The appellee is the state of Ohio, represented by the state attorney general.[1] Appellants seek relief from an order of the trial court compelling production of documents and rejecting appellants' contention that the subpoenaed materials are protected from discovery under the attorney work-product doctrine.

         {¶ 2} The controversy began when appellee issued a subpoena requesting certain internal investigation documents related to a self-reported incident report submitted to the Ohio Department of Health by appellants' nursing facility. Appellants refused to produce certain documents that they considered to be attorney work-product. On May 12, 2017, the trial court determined that the documents did not qualify for the work-product privilege, and ordered production to appellee under penalty of contempt. An initial appeal to this court ensued. In In re Special Grand Jury Investigation, 10th Dist. No. 17AP-446, 2018-Ohio-760, hereinafter "Grand Jury I, " this court sua sponte raised the issue of jurisdiction and dismissed the appeal. We held that while an order compelling discovery of allegedly privileged or protected information may constitute a final appealable order under R.C. 2505.02, appellants had not affirmatively established that an immediate appeal was necessary to afford a meaningful and effective remedy. Id. at ¶ 11, citing Nami v. Nami, 10th Dist. No. 17AP-265, 2017-Ohio-8330, ¶ 19.

         {¶ 3} After remand from our March 1, 2018 decision in Grand Jury I, the court of common pleas, on August 2, 2018, entered an order lifting the stay imposed pending appeal and ordered appellants to produce all responsive information for the subpoenas at issue. This order also scheduled a show-cause hearing for August 27, 2018, to determine whether to hold appellants in contempt and impose sanctions for failure to comply with the state's subpoena. After the show-cause hearing, the court of common pleas entered an order on August 29, 2018 ordering appellants to provide certain documents directly to the state, and other documents for submission to the court for in camera inspection.

         {¶ 4} The court then conducted its in camera inspection and on September 21, 2018 ordered all the documents to be produced in their entirety on or before October 1, 2018. On September 25, 2018, appellants filed their appeal with this court. On the same date, appellants filed a motion in the court of common pleas to stay the court's September 21, 2018 entry pending appeal. On October 16, 2018, the trial court entered an order denying the stay pending appeal based on the outcome of the prior appeal. The court formally found appellants in contempt for failure to produce the subpoenaed documents as described in prior orders of the court and deferred sanctions or purge of the contempt finding pending the outcome of the present appeal.

         {¶ 5} On November 1, 2018, this court by journal entry granted the parties' joint motion to limit transmission of the record in this appeal to documents relevant to the appeal and to supplement the record with additional documents.

         {¶ 6} The state filed its motion to dismiss this appeal for lack of a final appealable order on December 31, 2018. Appellants filed their memorandum in opposition to dismissal on January 10, 2019, further seeking an award of attorney fees on the basis that the motion to dismiss is frivolous. The state filed its reply memorandum on January 16, 2019.

         {¶ 7} The state argues that the current appeal is repetitive and should be dismissed for the same reasons given in our dismissal of the first appeal. Appellants argue to the contrary that the appeal is not duplicative because, unlike the first appeal, appellants have now raised the argument that an immediate appeal satisfies R.C. 2505.02(B) because appellants would not be afforded a meaningful and effective remedy by an appeal after conclusion of litigation before the court of common pleas, including potential criminal proceedings. Once appellants are forced to disclose the documents allegedly subject to attorney-work product protection, there would be no way to "unring the bell" and preclude use of that information by the state in subsequent trial court proceedings; moreover, although no sanction has yet been imposed by the trial court for contempt, the remedy for the contempt sanctions might not be available in a subsequent appeal after final judgment.

         {¶ 8} Our jurisdiction on appeal is limited to the review of final appealable orders, judgments, or decrees, and if an appeal is not taken from a final appealable order, we have no jurisdiction to review the matter and must dismiss it. State ex rel. Ohio Academy of Nursing Homes, Inc. v. Ohio Dept. of Medicaid, 1oth Dist. No. 16AP-102, 2016-Ohio-1516, ¶ 4-5, citing State ex rel. Bd. of State Teachers Retirement Sys. of Ohio v. Davis, 113 Ohio St.3d 410, 2007-Ohio-2205, ¶ 44.

         {¶ 9} The pertinent provisions of R.C. 2505.02provide that an order is final and appealable where it grants or denies a provisional remedy, in effect determines the action with respect to that remedy and prevents a judgment in the action in favor of the appealing party, and the appealing party would not be afforded a meaningful or effective remedy by appeal following final judgment. R.C. 2505.02(B)(4)(a) and (b).

         {¶ 10} We first address appellants' argument that the trial court's order is final and appealable because it found appellants in contempt for failure to furnish the subpoenaed documents. We note that the trial court has deferred imposition of any sanction arising from the contempt finding. The contempt issue is therefore not ripe for appeal. "In Ohio, the general rule for contempt proceedings is that a judgment of contempt becomes a final appealable order only when there is both a finding of ...

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