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McHenry v. Gen. Acc. Ins. Co.6/5/1995
Per Curiam.
Upon review, we find that the instant matter must be dismissed for lack of a final applicable order pursuant to R.C. 2505.02.
The trial court's order denying appellant's motion for a protective order and granting appellees' motion to compel production of appellant's claims file constitutes an interlocutory appeal of a discovery order. Such order is neither final nor appealable pursuant to R.C. 2505.02, Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213, and Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 635 N.E.2d 331, modifying Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 616 N.E.2d 181.
Consequently, we vacate Entry No. 53662 (Nov. 14, 1994) which granted appellant's motion for reconsideration of Entry No. 53294 (June 29, 1994) which previously dismissed its appeal for lack of a final appealable order pursuant to R.C. 2505.02.
For the foregoing reasons, we find we must once again dismiss this appeal and do so sua sponte.
Appellant may avoid alleged irreparable harm by moving the trial court for an in camera inspection of its files. The trial court is obliged to provide such inspection prior to granting a motion to compel production when issues of work product or attorney client privilege are raised. See Peyko v. Frederick (1986), 25 Ohio St.3d 164, 25 OBR 207, 495 N.E.2d 918, paragraph two of the syllabus.
Appeal dismissed.
HARPER and DYKE, JJ., concur.
JOHN T. PATTON, C.J., concurs separately.
PATTON, Chief Justice, concurring.
I agree that the trial court's order granting the motion to compel discovery of putatively privileged information is not a final order. I write separately, however, to state my belief that important policy reasons compel the conclusion that orders of this kind should be immediately appealable.
Pursuant to R.C. 2505.02, and as applicable in this case, a final order is an order affecting a substantial right and made in a special proceeding. There is no question that discovery disputes relating to privilege and work product are orders that affect a substantial right. Bell v. Mt. Sinai Med. Ctr. (1993), 67 Ohio St.3d 60, 63, 616 N.E.2d 181, 183-184. The issue is whether the order granting the motion to compel was made in a special proceeding.
In Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213, the Supreme Court held that "orders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings." Id. at syllabus.
At least two courts have found issues raised in discovery proceedings to be final appealable orders. In Niemann v. Cooley (1994), 93 Ohio App.3d 81, 637 N.E.2d 943, the court considered this issue in the context of a court order requiring a clergyman to produce certain communications he made to his mental health counselors. The court found that if it applied the Polikoff test to the underlying negligence action, it would prohibit an appeal from the order and, in fact, prohibit appeals in any common-law suits. Id. at 87-88, 637 N.E.2d at 947-948. Concluding that the Supreme Court could not have intended such a result, the court held it would "read Polikoff to mean that it is the nature of the privilege, not the underlying cause of action, which must be examined * * *." Id. Since the privileges asserted were all statutory, the court determined that the order appealed from was one made in a special proceeding for purposes of R.C. 2505.02.
A panel of this court followed the same line of reasoni
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