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Discovery of Privileged Material Revisited

Last week, it was noted that the Ohio Supreme Court revised its interpretation of appellate review of issues pertaining to discovery of privileged material. The new "Chen test" requires parties seeking an interlocutory appeal of a trial court's order, compelling the discovery of privileged material, to establish that no adequate remedy exists if the appeal were delayed until after the case was resolved. On that same day, the Second District released a decision involving a trial court's order compelling the discovery of privileged material that is illustrative of this new concept. Most of the issues in the Second District's case were non-unique.

For example, in that case, Marcum v. Miami Valley Hospital, the Second District acknowledged the trend of not requiring an in camera inspection of the documents in every case, limiting a prior case that indicated otherwise. In holding, the court noted that the appellant failed to file for a protective order and had not otherwise established her burden of demonstrating that the materials were in fact privileged and irrelevant to the current appeal. The defendants had sought 12-years worth of medical records preceding the death underlying the cause of action. This highlights the importance of trial counsel taking the necessary steps at the trial stages to preserve the privilege issue for the appeal. Further, the invocation of privilege cannot be general,

quote-l.pngsomething more than a mere recitation that documents are not causally or historically related to a claimed injury must be set forth by the party claiming the privilege before any in camera inspection of the documents is necessaryquote-r.png 

Other than offering some clarification on the topic, the holding itself isn't monumental. Getting back to the original point, at the tail-end of the opinion, the Second District included a short paragraph explaining

quote-l.pngThe issues raised in Marcum's third assignment of error were presented to this court in Miami Valley Hospital's motion to dismiss this appeal, and Marcum's response to the motion. In a decision and entry filed September 3, 2014, we overruled the motion, holding that the trial court's discovery order is a provisional remedy, because it compels the disclosure of allegedly privileged information, and that a post-disclosure, post-judgment appeal would not afford appellant a meaningful or effective remedy for protecting the privileged material. Therefore, Marcum's Third Assignment of Error is overruled as moot.quote-r.png 

This is important in light of the Chen decision and may be all that is required to assuage the Ohio Supreme Court's concern. As originally noted, all that is necessary is for the appellate court to make the two-prong finding, that the trial court's decision compelling the discovery of privileged material is both a provisional remedy and the appellant lacks a meaningful or effective remedy for protecting the privileged material following a direct appeal at the end of the case. Appellate courts must be alerted to this issue at the earliest possible point for any ongoing appeals. Otherwise, litigants face the prospect of having their appeal dismiss for the lack of a final appealable order which at best could set back the case a few months as the issue is relitigated, or at worst, the privilege issue is deemed waived altogether. 

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