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State ex rel Abner v. Elliott3/17/1999
[Cite as State ex rel. Abner v. Elliott (1999), ___ Ohio St.3d ___.]
Prohibition to prevent common pleas court Judge from enforcing any of his discovery orders in an asbestos litigation - Dismissal of prohibition action pursuant to Civ.R. 12(B)(6) affirmed.
Submitted January 26, 1999
Appellants, Donald Lee Abner and over eight hundred other persons, are workers and their representatives who filed actions in the Butler County Court of Common Pleas against various manufacturers, suppliers, installers, and distributors of products containing asbestos. Appellants claimed that they had been injured through exposure to asbestos. Respondent, Judge George Elliott, was assigned to hear all claims pending in these cases. Judge Elliott's orders governing discovery in any single case were binding in the proceedings in all of the cases.
In May 1997, Judge Elliott granted the motion of defendant O.K.I. Supply Co. for a protective order concerning appellants' attorneys' conduct during depositions in the asbestos cases. Among other things, Judge Elliott ordered that in future depositions in the asbestos litigation, counsel would refrain from making speaking objections or attempting to suggest answers or otherwise coach witnesses and that counsel would not confer with witnesses during depositions except to decide whether to assert a privilege.
In August 1997, a document entitled "Preparing for Your Deposition/Attorney Work Product" authored by Baron & Budd, P.C., a law firm representing appellants in the Butler County asbestos litigation, was disclosed during the deposition of a plaintiff represented by Baron & Budd in unrelated asbestos litigation in Texas. The document was purported to advise plaintiffs in asbestos personal-injury cases to testify in a manner that would not necessarily be consistent with the truth.
Defendant Raymark Industries, Inc. subsequently filed a motion to compel discovery, for a protective order, and for other relief based on its contention that the depositions in the Butler County asbestos litigation established that the plaintiffs had been improperly coached by either the same preparation document used by Baron & Budd in Texas or substantially similar advice. Judge Elliott held a hearing on Raymark's motion at which appellants' counsel conceded that some aspects of the Texas document were shocking and surprising and that the document should never have been used "in the first place." But appellants claimed that neither the Texas document nor anything similar had been used in the Butler County cases.
In September 1997, following the hearing, the court granted Raymark's motion in part and ordered the following:
"1. Defendants may inquire into and obtain discovery respecting allegedly improper preparation or coaching of witnesses by plaintiffs' counsel, and, or plaintiffs' counsel's agents, representatives and employees."
"2. Defendants may redepose any plaintiff deposed prior to September 17, 1997 respecting alleged witness preparation and coaching."
"3. Discovery shall continue pursuant to the Case Management Order entered June 19, 1997. In any deposition taken after September 17, 1997 the matter of witness preparation and coaching shall be an appropriate area of inquiry."
"4. Any purported invasion of attorney-client privilege shall be brought to the court's attention for in camera review."
"5. Plaintiffs, plaintiffs' counsel, their employees, agents, and, or, representatives are enjoined and restrained from destroying, altering, or modifying in any way any documents, material, videos, photographs, or tangible things whatsoever
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