Sherwin-Williams Co. v. Rice

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-809

Case Date: 03/01/2012

Plaintiff: Sherwin-Williams Co.

Defendant: Rice

Preview:[Cite as Sherwin-Williams Co. v. Rice, 2012-Ohio-809.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No.                                                           96927
THE SHERWIN-WILLIAMS COMPANY
PLAINTIFF-APPELLEE
vs.
MOTLEY RICE LLC, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No.    CV-689237
BEFORE:      Boyle, P.J., Sweeney, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED:      March 1, 2012

2
ATTORNEYS FOR APPELLANTS
Michael J. O’Shea
O’Shea & Associates Co., LPA
Beachcliff Market Square
19300 Detroit Road, Suite 202
Rocky River, Ohio                       44116
Luis M. Alcalde
Robert G. Cohen
Robert G. Schuler
Kegler, Brown, Hill & Ritter Co., LPA
65 East State Street
Suite 1800
Columbus, Ohio                          43215
ATTORNEYS FOR APPELLEES
For The Sherwin-Williams Company
James R. Wooley
Gregory V. Jolivette, Jr.
Amanda R. Parker
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio                         44114
For Stephen Walker
Brendan Delay
24500 Center Ridge Road
Suite 175
Westlake, Ohio                          44145

3
MARY J. BOYLE, P.J.:
{¶1}  Defendant-appellant,  Motley  Rice  LLC                                                  (“Motley  Rice”),  appeals  an
interlocutory  order  granting  plaintiff-appellee’s,  The  Sherwin-Williams  Company’s
(“Sherwin-Williams”), motion to compel and ordering Motley Rice to produce various
documents  and  communications  to  Sherwin-Williams.     Motley  Rice  raises  four
assignments of error for our review:
{¶2}                                                                                           “[1.] The trial court incorrectly construed the scope of the attorney-client
privilege.
{¶3}                                                                                           “[2.]  The  trial  court  incorrectly  held  that  Motley  Rice’s  internal
communications regarding meetings and communications with potential witnesses and
regarding  filings  with  the  court  in  pending  litigation  were  not  protected  by  the
attorney-client privilege.
{¶4}                                                                                           “[3.] The trial court abused its discretion by holding that the plaintiff had
demonstrated                                                                                   ‘good  cause’  for  the  production  of  attorney  opinion  work  product
information.
{¶5}                                                                                           “[4.] The trial court abused its discretion by ordering the production of
information subject to the work product doctrine without considering an in camera
inspection of such materials in advance of ruling.”
{¶6}    Finding merit to the fourth assignment of error, we affirm in part, reverse
in part, and remand for the trial court to conduct an in camera review.

4
Procedural History and Factual Background
{¶7}    In  1999,  the  state  of  Rhode  Island,  represented by Motley Rice, sued
several paint manufacturers, including Sherwin-Williams, alleging that they created a
public nuisance by selling lead-based paints that poisoned thousands of children in the
state.    Rhode Island sought to have the lead-paint manufacturers remediate lead paint
wherever it was found.    In February 2006, a jury found that three paint manufacturers,
including Sherwin-Williams, created a public nuisance by making lead-based paints that
did in fact poison thousands of children in the state.
{¶8}    But in 2008, the Rhode Island Supreme Court reversed the jury’s verdict,
concluding that the action should have been dismissed at the outset.    After the Supreme
Court’s ruling, Sherwin-Williams moved the Rhode Island lower court to recover its
costs.
{¶9}    Relevant to this appeal, Motley Rice opposed Sherwin-Williams’ motion
for costs, attaching to it a single-page document (this exhibit was referred to as “Exhibit
16” in the Rhode Island case) containing three PowerPoint slides regarding information
about Sherwin-Williams’ defense costs in lead-paint litigation and possible insurance
coverage available to the company.    Sherwin-Williams immediately sought to have the
document sealed, contending that it was confidential and protected by the attorney-client
privilege.    Sherwin-Williams  further  demanded  discovery  regarding  Motley  Rice’s
receipt of the document.    The Rhode Island court ultimately ruled that the document

5
was  not  protected  by  the  attorney-client  privilege  because  it  found  that  the
Sherwin-Williams’ attorney who created Exhibit 16 “was imparting factual and business
information, rather than serving as a lawyer when he prepared * * * the slides depicted
on Exhibit 16.”    As such, the court did not permit Sherwin-Williams to discover Motley
Rice’s receipt of the document.    The Rhode Island court further determined that the
remaining 33 pages of the fax contained innocuous information and was not privileged.
{¶10} In April 2009, Sherwin-Williams filed the present action in the Cuyahoga
County Court of Common Pleas against Motley Rice and Stephen Walker  (a former
Sherwin-Williams’  employee  who  contacted  Motley  Rice  concerning  the  lead-paint
litigation in Rhode Island), asserting claims of conversion, replevin, aiding and abetting
tortious   conduct,   misappropriation   of   trade   secrets,   and   civil   conspiracy.
Sherwin-Williams  brought  an  additional  claim  against  Motley  Rice  for  tortious
interference with business relations between Sherwin-Williams and Walker.    And it
asserted  additional  claims  against  Walker  for  breach  of  contract  and  fraudulent
inducement (for falsely representing that he had never disclosed confidential information
in connection with a 2007 settlement of an employment law claim).
{¶11} In its complaint, Sherwin-Williams alleged that
[w]ithout the knowledge or consent of Sherwin-Williams, Motley Rice has
obtained stolen copies of eighty PowerPoint slides and other confidential
material used by Sherwin-Williams’ General Counsel, Associate General
Counsels for Litigation and Complex Litigation, and Vice President for
Corporate Communications and Public Affairs to advise the Company’s
Board of Directors.

6
{¶12}  Sherwin-Williams  further  alleged  that  the  PowerPoint  slides  contained
privileged attorney-client communications and attorney work product, that Motley Rice
refused  to  reveal  how  it  obtained  the  documents,  and  that  it  refused  to  return  the
documents to Sherwin-Williams.
{¶13} With respect to Steven Walker, Sherwin-Williams alleged that he worked
for Sherwin-Williams from 1995 to 2005.    As part of his employment, Walker assisted
Sherwin-Williams’ officers, attorneys, and executives with technical and design aspects
related to presentations presented to the board of directors, and therefore had access to
confidential  PowerPoint  presentations.     Sherwin-Williams  alleged  that  during  the
lead-paint litigation, Walker met with a Motley Rice attorney and provided her with
Sherwin-Williams’ confidential, proprietary, and privileged information.
{¶14} Motley Rice filed a counterclaim against Sherwin-Williams, alleging that
Sherwin-Williams “perverted these proceedings in an attempt to accomplish an ulterior
purpose.”    Motley Rice claims that Sherwin-Williams continues to press this litigation,
despite the fact that  (a) the documents at issue are not protected by attorney-client
privilege or work-product doctrine and are not proprietary, confidential, or trade secrets;
(b) Sherwin-Williams already tried unsuccessfully to obtain a legal remedy from the
Rhode Island court relating to the same 34 pages of documents at issue in this case; (c)
the copies of the 34 pages of documents that Motley Rice had have been sealed with this
court; and (d) there is no credible claim that Sherwin-Williams has been damaged in any

7
way.    Motley Rice contends that Sherwin-Williams’  “real purpose” is, among other
things,  to  retaliate  against  Motley  Rice  for  instituting  lead-paint  litigation  against
Sherwin-Williams and to force Motley Rice to expend legal fees and related costs to
defend this litigation.
{¶15} The single-page document used by Motley Rice in its opposition brief to
Sherwin-Williams’ motion for costs in Rhode Island — Exhibit 16 — was page 9 of the
34-page fax Motley Rice received in September 2006 — while the case was pending
appeal to the Rhode Island Supreme Court.    Thirteen days after Sherwin-Williams filed
this case in Cuyahoga County, Motley Rice agreed to deposit under seal the entire
34-page fax and all copies (which it did on April 16, 2009).
{¶16} In July 2009, Sherwin-Williams re-served its first request for production of
documents  on  Motley  Rice.    Motley  Rice  objected  to  the  following  requests  for
production:
(1)  all  documents                                                                                “showing,  memorializing,  describing,  or  relating  to  the
circumstances regarding how Motley Rice or the State came into possession, custody,
and control of Sherwin-Williams’ documents”;
(2)                                                                                                “all  communications  and  records  of  communications  concerning  the
acquisition,  retention,  possession  or  use  by  Motley  Rice”  of  Sherwin-Williams’
documents;

8
(3) “[a]ll records concerning the dissemination, distribution, disclosure, transfer,
or sharing by Motley Rice” of Sherwin-Williams’ documents;
(4) “[a]ll documents showing the names and addresses of every person or entity
that  has  transferred,  disclosed,  shown,  given,  or  communicated  Sherwin-Williams’
documents to any person or entity other than Sherwin-Williams”;
(5) “[a]ll documents showing the name and address of every person employed by
Motley  Rice   or   the   State   who   has   received,   obtained,   possessed,   or   seen
Sherwin-Williams’ documents”;
(6)                                                                                            “[a]ll  records  concerning  meetings,  telephone  calls,  email,  or  other
communications by Motley Rice or the State with any former or current employee,
director, officer, attorney, representative, or agent of Sherwin-Williams concerning in
whole or in part Sherwin-Williams’ documents”; and
(7) “[a]ll records showing, memorializing, describing, or relating to the reasons
for Motley Rice’s decision not to * * * inform Sherwin-Williams before September 28,
2008 of its receipt and possession of Sherwin-Williams’ documents[.]”
{¶17} Despite the fact that Motley Rice deposited the 34-page fax under seal in
April 2009, Sherwin-Williams alleged (in its first amended complaint filed in October
2009)  that  Motley  Rice  still  refused  to                                                  “explain  how  it  came  into  possession  of
Sherwin-Williams’   Documents   and   the   Fax,”   or                                         “identify  and  return  all  of
Sherwin-Williams’ Documents.”

9
{¶18} In May 2010, the trial court ordered Motley Rice
to make [attorneys] Fidelma Fitzpatrick and Aileen Sprague available for
deposition at a mutually convenient time to answer questions regarding
what  interactions  and/or  communications  they  have  had  with  Stephen
Walker, and their knowledge of Motley Rice’s receipt or use of the 34 page
facsimile that was previously filed under seal with this Court.
{¶19} In June 2010, Sherwin-Williams deposed Fidelma Fitzpatrick and Aileen
Sprague, attorneys for Motley Rice who were part of the lead-paint litigation team.
Fitzpatrick  is  a  partner  and  Sprague  is  an  associate  at  Motley Rice;  Fitzpatrick  is
Sprague’s  supervisor.    Fitzpatrick  explained  that  Stephen  Walker  contacted  her  by
telephone in late August or early September 2006.    She said that Walker initially left
her a voicemail message, stating that he was a former Sherwin-Williams’ employee and
that he wanted to talk to her because he had information about  “illegal conduct by
Sherwin-Williams” relating to the lead-paint litigation in Rhode Island.    Walker and
Fitzpatrick talked for the first time on September 6, 2006.    Walker told her that while
employed  at  Sherwin-Williams,  he  had  been  asked  to                                         “doctor”  certain                           “historical
Sherwin-Williams’ documents, to redact or edit out references or pictures of lead or lead
paint   from   those   particular   documents.”                                                   Walker   also   told   Fitzpatrick   that
Sherwin-Williams had  “purged certain offices and locations of documents that were
relevant  to  the  Rhode  Island  lawsuit  and  had  shifted  those  documents  to  either
warehouses or other divisions within the company[.]”    Walker told her that he could

10
provide her with evidence to back up his claims of Sherwin-Williams’ illegal conduct.
The phone call lasted 20 minutes.
{¶20} Fitzpatrick further testified that on September  12,  2006, she and Laura
Holcomb, a paralegal for Motley Rice, received the 34-page fax anonymously from a
FedEx Kinkos in Ohio.    Fitzpatrick said that she assumed Walker sent the fax.    After
reviewing the fax, Fitzpatrick determined that the documents did not support Walker’s
claims and “were of little import or little relevance to whatever we were doing at the
time.”    She put them aside because they “were of no value to us.”    Fitzpatrick said the
fax was filed and stored somewhere at Motley Rice, but she is not the one who filed it,
nor did she know where it was stored.    She did, however, write an email to Jack
McConnell, a partner at Motley Rice, about the fax, and probably Holcomb as well.
She also said that the email still exists, but refused to produce it or testify to its contents
on the advice of counsel.
{¶21}  Fitzpatrick  further  testified  to  two  short  phone  calls  with  Walker  on
September 14, 2006.    She stated that the purpose of these calls were probably to set up
a date and time for them to meet in Ohio.    Jack McConnell knew about the meeting
beforehand, and possibly Aileen Sprague and Neil Kelly at the Rhode Island attorney
general’s  office.    Fitzpatrick  would  not,  however,  testify as  to  any content  of  the
discussions she had with McConnell, Sprague, or Kelly.

11
{¶22} Fitzpatrick and Holcomb met Walker at the Cleveland airport on September
20,                                                                                           2006,  for  approximately  one  hour.     Walker  further  explained  to  them  how
Sherwin-Williams  hid  documents  in  the  Rhode  Island  litigation.    Fitzpatrick  told
Walker that she needed proof of his allegations.    She said that when she left the meeting
with  Walker,  she  fully  expected  him  to  send  her  evidence  of  his  claims  against
Sherwin-Williams.    But Fitzpatrick stated that she never received anything.    At this
point, Fitzpatrick decided not to do anything about Walker’s allegations without any
evidence to back them up.    Plus, she said at this point, Rhode Island had won the trial
and the case was pending appeal.    Fitzpatrick said that Walker did not demand anything
from her or Motley Rice, nor did Motley Rice offer Walker anything in return for
information.
{¶23} Fitzpatrick further testified that other people reviewed the  34-page fax
besides her and Holcomb, including Jack McConnell and possibly Neil Kelly at the
Rhode Island attorney general’s office.    These people were also involved in discussions
about the fax, and maybe Bob McConnell as well, another partner at Motley Rice who
was part of the lead-paint litigation team.
{¶24} Fitzpatrick explained that she did not hear from Walker again until the
summer of 2007.    She said that Walker told her that he was involved in settlement talks
with  Sherwin-Williams  regarding  an  employment  action  he  had  filed  against  the

12
company after he was terminated, and he called to tell her that as part of that agreement,
he could no longer talk to her or anyone at Motley Rice.
{¶25} Fitzpatrick said that Walker did not call her again until October 2008 (this
was right after Motley Rice had filed its opposition brief, which had Exhibit 16 attached
to it).    Walker called in an agitated state, saying that Sherwin-Williams or Jones Day
“had men sent to his door who claimed to be FBI agents and attempted to intimidate him
and harass him about this Exhibit 16.”    Fitzpatrick was not in the office at the time, so
Sprague talked to Walker.    Sprague testified that she just tried to calm Walker down
and told him not to answer his door if they returned.
{¶26} The last time Fitzpatrick heard from Walker was January 2009.    He called
to tell her that he was being deposed about the meeting he had with Fitzpatrick and about
the 34-page fax.    Walker told her that he did not send the fax to her, and he would
testify to that fact.
{¶27}  Fitzpatrick  further  testified  that  she  was  the  attorney who  drafted  the
opposition brief to Sherwin-Williams’ motion to recover its costs in the Rhode Island
court  in  September                                                                          2008.    In  response  to  Sherwin-Williams’  question  as  to  who
remembered the 34-page fax when preparing the brief two year later, Fitzpatrick testified
that she could not recall.    Nor could Fitzpatrick recall who made the decision to use
page nine of the 34 pages.    Instead, she said the use of it was a team effort between
Motley Rice attorneys and attorneys at the Rhode Island attorney general’s office.

13
{¶28} Sprague testified to the events as Fitzpatrick had, but to a much lesser
extent as she was not involved with Walker or the 34-page fax as much as Fitzpatrick
was.    Sprague did not even know about the 34-page fax until October 2008 when she
talked to Walker (who was in an agitated state) because Fitzpatrick was out of the office.
{¶29} In July 2010, Sherwin-Williams filed a motion to compel Motley Rice’s
responses to written discovery and deposition questions.1    Sherwin-Williams asserted
that Motley Rice violated the trial court’s order of May 2010, ordering Motley Rice to
produce deponents to testify to its receipt and use of the 34-page fax.    In the court’s
May 2010 order, the trial court had ordered Motley Rice
to make Fidelma Fitzpatrick and Aileen Sprague available for deposition at
a mutually convenient time to answer questions regarding what interactions
and/or  communications  they have  had  with  Stephen  Walker,  and  their
knowledge of Motley Rice’s receipt or use of the 34 page facsimile that
was previously filed under seal with this Court.
{¶30} The trial court granted Sherwin-Williams’ motion to compel.    First, the
trial  court  determined  that  the  information  requested  was  not  protected  by  the
attorney-client  privilege  because  it  was  not  communications  between  the  attorney
(Motley Rice) and the client (the state of Rhode Island); it was internal communications
between Motley Rice attorneys or communications between Motley Rice attorneys and
its co-counsel on the case, the Rhode Island attorney general’s office.    The trial court
1Sherwin-Williams also filed a motion to compel discovery of communications between
Stephen Walker and his attorney.    But Walker is not a party to this appeal and thus, we will only
discuss Sherwin-Williams’ motion to compel discovery of Motley Rice.

14
then  determined  that  the  information  requested  was  protected  by  the  work-product
doctrine, but held that Sherwin-Williams demonstrated “good cause” for disclosure of
Motley Rice’s claimed work product because it was relevant to Motley Rice’s alleged
tortious conduct and was in Motley Rice’s control and otherwise unavailable.    The trial
court explained that “Motley Rice is not simply a law firm trying to prevent an opposing
attorney  from   rooting   through   its   case   file,   but   an   alleged   tortfeasor   that
Sherwin-Williams claims should be held to account in civil damages for its conduct.”
{¶31}  Regarding  testimony,  the  trial  court  ordered  Motley Rice  witnesses to
answer all deposition questions as to how they came to possess or know any part of the
34-page packet, where they kept it, where they took it, with whom they discussed it, and
the substance of such discussion.    With respect to documents, the trial court ordered
that Motley Rice must produce for an in camera inspection all documents listed on its
privilege log that contain communications between Motley Rice and its client, the state
of  Rhode  Island.     The  trial  court  explicitly  held  that  ruling  did  not  apply  to
communications  with  the  Rhode  Island  attorney  general’s  office  because  those
communications were not communications between an attorney and a client and were not
protected by the attorney-client privilege.
{¶32} The trial court further ordered that “other documents that are responsive to
the discovery requests, including Motley Rice’s intra-office communications about the
documents  at  issue  and  communications  with  co-counsel  Rhode  Island’s  attorney

15
general” are to be “produced to the plaintiff without an in camera inspection, since they
are not communications between a client and an attorney.”
{¶33}  It  is  from  this  judgment  that  Motley  Rice  appeals,  raising  the  four
assignments of error that we set forth previously.
Standard of Review
{¶34} This court reviews the assertion of an alleged privilege de novo.    Ward v.
Health Sys.,  128 Ohio St.3d  212,  2010-Ohio-6275,  943 N.E.2d  514,  ¶13; Sutton v.
Stevens Painton Corp., 193 Ohio App.3d 68, 2011-Ohio-841, 951 N.E.2d 91,¶12 (8th
Dist.).    Regarding work product, however, the Ohio Supreme Court also has explained
that “the determination of whether materials are protected by the work-product doctrine
and  the  determination  of                                                                  ‘good  cause’  under  Civ.R.   26(B)(3),  are   ‘discretionary
determinations to be made by the trial court.’” Sutton at  ¶12, quoting State ex rel.
Greater Cleveland Regional Transit Auth. v. Guzzo, 6 Ohio St.3d 270, 271, 452 N.E.2d
1314  (1983).    Discretionary  decisions  are  reviewed  under  an  abuse  of  discretion
standard of review.    Id.
Attorney-Client Privilege
{¶35} Motley Rice argues in its first two assignments of error that the trial court
erred  when  it  determined  that  the  communications  and  documents  sought  by
Sherwin-Williams were not protected by the attorney-client privilege.    As such, we will

16
address them together under the purview of a de novo review, with no deference to the
trial court’s decision.
{¶36} In State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio
St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 21, the Ohio Supreme Court explained:
“The  attorney-client  privilege  is  one  of  the  oldest  recognized
privileges for confidential communications.”    Swidler & Berlin v. United
States (1998), 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379.                             “The
privilege is intended to encourage ‘full and frank communication between
attorneys and their clients and thereby promote broader public interests in
the observance of law and the administration of justice.’”    Id. at 403, 118
S.Ct. 2081, 141 L.Ed.2d 379, quoting Upjohn Co. v. United States (1981),
449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584.                                              “In modern law, the
privilege  is  founded  on  the  premise  that  confidences  shared  in  the
attorney-client relationship are to remain confidential.”    Moskovitz v. Mt.
Sinai Med. Ctr. (1994), 69 Ohio St.3d 638, 660, 635 N.E.2d 331.
{¶37} Evid.R.  501 provides that  “[t]he privilege of a witness, person, state or
political  subdivision  thereof  shall  be  governed  by  statute  enacted  by  the  General
Assembly or by principles of common law as interpreted by the courts of this state in the
light  of  reason  and  experience.”    Thus,                                                  “[i]n  Ohio,  the  attorney-client  privilege  is
governed  by statute,  R.C.  2317.02(A),  and  in  cases  that  are  not  addressed in R.C.
2317.02(A), by common law.”    State ex rel. Leslie v. Ohio House Fin. Agency,  105
Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 18.
{¶38} Barring certain exceptions, R.C. 2317.02(A) provides that “[t]he following
persons shall not testify in certain respects: An attorney, concerning a communication
made to the attorney by a client in that relation or the attorney’s advice to a client[.]”

17
{¶39}  “R.C.  2317.02(A),  by  its  very  terms,  is  a  mere  testimonial  privilege
precluding  an  attorney from testifying about confidential communications.”    Toledo
Blade at  ¶  24, quoting Leslie at  ¶  18.                                                      “The common-law attorney-client privilege,
however, reaches far beyond a proscription against testimonial speech.    The privilege
protects  against  any  dissemination  of  information  obtained  in  the  confidential
relationship.”                                                                                  (Internal quotations omitted.)    Id. at ¶ 24.
{¶40}  Motley  Rice  argues  that  the  trial  court  erred  in  holding  that  the
attorney-client privilege did not protect  “internal law firm communications regarding
factual  investigation,  witnesses,  and  filings  in  pending  litigation.”     Motley  Rice
contends that the trial court incorrectly interpreted the Ohio Supreme Court’s decision in
Toledo Blade regarding Ohio’s common law attorney-client privilege.    Motley Rice
quotes extensively from Toledo Blade, claiming that it is directly on point here and
stands for its proposition that an attorney’s factual investigations are protected by the
attorney-client privilege.
{¶41} But we find Toledo Blade to be inapplicable to this case.    In Toledo Blade,
a newspaper sought production of an investigative report prepared by an attorney who
had  been  retained  by the  Toledo-Lucas  Port  Authority to  investigate  allegations  of
wrongdoing by a public employee.    The newspaper filed a writ of mandamus action to
obtain the report.

18
{¶42} The Ohio Supreme Court denied the writ on the basis that the report was
protected  by  the  attorney-client  privilege.                                                  The  high  court  concluded  that  the
investigative report prepared by the attorney was a “communication” that was incident to
or related to legal advice that the attorney would give the port authority concerning
alleged  illegal  conduct  by  one  of  the  port  authority’s  employees.    Although  the
“communication” necessarily included facts as part of the investigation, it also reflected
the  attorney’s  professional  skills  and  judgment  regarding  the  port  authority’s  legal
options.    Id.  at                                                                              ¶  31.    The  Supreme  Court  concluded  that  the  “port  authority has
established that the investigative report was related to [the attorney’s] rendition of legal
services and is thus excepted from disclosure under the Public Records Act as material
covered by the attorney-client privilege.”    Id.    The Supreme Court went on to explain
that  “[t]his holding  ‘furthers the laudatory objectives of the privilege: complete and
candid communication between attorneys and clients.’”    Id., quoting Leslie, 105 Ohio
St.3d                                                                                            261,                                                                        2005-Ohio-1508,   824  N.E.2d,   ¶   43.   The  evidence  in  Toledo  Blade
established that the port authority staff members knew the investigator was an attorney,
and therefore “they felt free to speak openly and candidly and with the understanding
that their comments and the investigation were serious legal matters that could carry
serious legal consequences.”    Id. at ¶ 33.
{¶43} In Toledo Blade, the attorney was hired to conduct the investigation.    As
part of the investigation, the attorney necessarily had to interview the staff at the port

19
authority.    The report prepared by the attorney included communications from the staff
of the port authority — and thus, the attorney-client privilege served the long-standing
principle  of  the  policy  behind  it                                                                 —  to  protect  client  secrets  and  allow  candid
communications with the attorney.    As we reiterated in Sutton, 193 Ohio App.3d 68,
2011-Ohio-841, 951 N.E.2d 91,                                                                          ¶ 16, “[t]he attorney-client privilege is founded on the
premise  that  confidences  shared  in  the  attorney-client  relationship  are  to  remain
confidential.”
{¶44} Here, however, the  “communications” and documents that Motley Rice
seeks to shield from discovery are not communications between a client and an attorney.
They   are   internal   communications   between   attorneys   at   Motley   Rice   and
communications  between  Motley  Rice  attorneys  and  attorneys  at  the  Rhode  Island
attorney general’s  office                                                                             —  Motley Rice’s  co-counsel  on  the  case  —    regarding  a
34-page document it received from a third party.2    There is no communication by a
client — or advice to a client.    There are no client confidences here to be concerned
about that were shared with attorneys.
{¶45}  Accordingly,  Motley Rice’s  first  and  second  assignments  of  error  are
overruled.
2Rhode Island General Laws Section 42-9-6 provides that the attorney general shall prosecute
all suits that the officers of the state (including the governor) are authorized to commence.    The
lead-paint action was commenced by Rhode Island,    represented by the attorney general, with
Motley Rice as co-counsel.

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Work-Product Doctrine
{¶46} Motley Rice argues in its third assignment of error that the trial court erred
in determining that “good cause” existed for the court to order it to produce its work
product.    And in its fourth assignment of error, Motley Rice contends that the trial court
erred in ordering it to produce such work product without first conducting an in camera
review.    We  will  address  these  assignments  of  error  together  under  an  abuse  of
discretion standard.
{¶47} In Squire Sanders & Dempsey v. Givaudan Flavors Corp., 127 Ohio St.3d
161,  2010-Ohio-4469,  937 N.E.2d  533,  ¶  54, the Ohio Supreme Court explained the
history of the work-product doctrine:
The work-product doctrine emanates from Hickman v. Taylor (1947), 329 U.S.
495, 511, 67 S.Ct. 385, 91 L.Ed. 451, in which the Supreme Court of the United States
recognized that  “[p]roper preparation of  a client’s  case  demands  that  [the  attorney]
assemble information, sift what he considers to be the relevant from the irrelevant facts,
prepare his legal theories and plan his strategy without undue and needless interference.
*  *  *    This  work  is  reflected,  of  course,  in  interviews,  statements,  memoranda,
correspondence,  briefs,  mental  impressions,  personal  beliefs,  and  countless  other
tangible and intangible ways — aptly though roughly termed by the Circuit Court of
Appeals in this case (153 F.2d 212, 223) as the ‘Work product of the lawyer.’    Were
such materials open to opposing counsel on mere demand, much of what is now put
down in writing would remain unwritten.    An attorney’s thoughts, heretofore inviolate,
would not be his own.    Inefficiency, unfairness and sharp practices would inevitably
develop in the giving of legal advice and in the preparation of cases for trial.    The effect
on the legal profession would be demoralizing.    And the interests of the clients and the
cause of justice would be poorly served.”
{¶48} The privilege, however, is not absolute.    Id. at ¶ 55, citing United States v. Nobles, 422
U.S. 225, 238-239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975).    It is “an intensely practical one, grounded

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in the realities of litigation in our adversary system,” and “provides a qualified privilege protecting the
attorney’s mental processes in preparation of litigation, establishing  ‘a zone of privacy in which
lawyers  can  analyze  and  prepare  their  client’s  case  free  from  scrutiny  or  interference  by  an
adversary.’”    Id., quoting Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.2006).
{¶49} In Ohio, the work-product doctrine is set forth in Civ.R. 26(B)(3).    This rule provides
in relevant part:
a  party  may  obtain  discovery  of  documents,  electronically  stored
information and tangible things prepared in anticipation of litigation or for
trial by or for another party or by or for that other party’s representative
(including his attorney, consultant, surety, indemnitor, insurer, or agent)
only upon a showing of good cause therefor.
{¶50}  The  Ohio  Supreme  Court  examined  the  meaning  of  “good  cause”  in
Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487.    It stated
that “a showing of good cause under Civ.R. 26(B)(3) requires demonstration of need for
the materials — i.e., a showing that the materials, or the information they contain, are
relevant and otherwise unavailable.”    The court further described that the purpose of the
work-product rule is to protect “the right of attorneys to prepare cases for trial with that
degree of privacy necessary to encourage them to prepare their cases thoroughly and to
investigate not only the favorable but the unfavorable aspects of such cases” and  “to
prevent an attorney from taking undue advantage of his adversary’s industry or efforts.”
Id. at ¶ 16, citing Civ.R. 26(A).                                                                             “To that end, Civ.R. 26(B)(3) places a burden on the

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party seeking discovery to demonstrate good cause for the sought-after materials.”    Id.
at ¶ 16.
{¶51}  While  the  protections  for  attorney  work  product  provided  in  Civ.R.
26(B)(3) expressly apply to “documents, electronically stored information and tangible
things prepared in anticipation of litigation,” protection also extends to intangible work
product.    Hickman, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451; 8 Wright, Miller,
Kane  &  Marcus,  Fed.  Practice  and  Procedure,  Section  2024  (3d  Ed.2009).    The
protection for intangible work product exists because “[o]therwise, attorneys’ files would
be protected from discovery, but attorneys themselves would have no work product
objection to depositions.”    In re Seagate Technology, L.L.C.,  497 F.3d  1360,  1376
(Fed.Cir.2007).
{¶52}  Here,  the  trial  court  found  that  Sherwin-Williams  met  its  burden  of
establishing  that                                                                              “good  cause”  existed  to  order  production  of  Motley  Rice’s  work
product.    The  trial  court  first  determined  that  the  work  product  was  relevant  to
establishing Sherwin-Williams’ claims and then determined that the information was
otherwise unavailable.    But this court cannot determine how the trial court found that
“good cause” existed without conducting an in camera review.    While it is true that the
information is  “otherwise unavailable,” it is not as certain that it is relevant without
actually viewing the information.

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{¶53} Motley Rice immediately deposited the  34-page fax under seal in April
2009,  almost immediately after Sherwin-Williams filed  this  case.    Motley Rice  has
already identified all of the Sherwin-Williams’ documents that it had copies of in the
Rhode Island litigation.    Motley Rice has testified extensively as to how it obtained,
received,  and  used  page  nine  of  the  34-page  fax.    Motley  Rice  has  also  testified
extensively regarding all communications and meetings that it had with Stephen Walker.
Finally, Motley Rice testified as to who knew about the 34-page fax and who discussed
it.                                                                                              All of this information was requested  — and received  — by Sherwin-Williams.
This court is perplexed as to the relevancy and need for anything else.
{¶54} Sherwin-Williams asserts that this case is exactly on point with this court’s
decision in Sutton.    Sherwin-Williams states that in Sutton:
* *  * this court affirmed the trial court’s order compelling disclosure of
attorney   work-product   documents,   finding   that   the   plaintiff   had
demonstrated  “good cause.”    This court reasoned that the plaintiff  was
entitled  to  discover  the underlying facts and circumstances surrounding
Thompson Hine’s role in engaging and directing the private investigation
firm to conduct surveillance of the plaintiff, because the information sought
was directly at issue in the case, was necessary to establish the plaintiff’s
claim based on Thompson-Hine’s alleged tortious conduct, and was only in
Thompson Hine’s possession.                                                                      (Citations to Sutton omitted.)
{¶55} But notably, in Sutton, the trial court ordered the production of various
documents following an in camera inspection.    Id. at ¶ 1.    This court was also able to
independently review the documents as they were included under seal as part of the

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appellate record.    See id. at ¶ 29, 31.    Here, the trial court never viewed the documents
or communications, thus they are not part of the record before us.
{¶56} Further, courts have held that  “if requested discovery is arguably either
opinion work product or ordinary fact work product, the trial court should conduct an
evidentiary hearing and an in camera inspection to determine which portions of a file are
privileged.”    Stegman v. Nickels, 6th Dist. No. E-05-069, 2006-Ohio-4918, 2006 WL
2709405,  ¶  16, citing Peyko v. Frederick,  25 Ohio St.3d  164,  167,  495 N.E.2d  918
(1986); Miller v. Bassett, 8th Dist. No. 86938, 2006-Ohio-3590, 2006 WL 1934788, ¶
16.    Absent such hearing or inspection, any blanket grant of discovery is an abuse of
discretion.    Miller, supra.
{¶57} This court cannot determine the answer to Motley Rice’s third assignment
of error as it not ripe for review because the trial court did not conduct an in camera
review.    But we sustain Motley Rice’s fourth assignment of error.
{¶58} The trial court is ordered to conduct an in camera review of the documents
and communications listed on Motley Rice’s privilege log, as well as Motley Rice’s
answers to Sherwin-Williams’ request for production of documents.    We further order
the trial court to conduct an in camera review of  Fidelma Fitzpatrick’s and Aileen
Sprague’s written answers to Sherwin-Williams’ deposition questions.    It should not be
difficult  for  Sherwin-Williams  to  prepare  such  written  deposition  questions  for
Fitzpatrick and Sprague, as Sherwin-Williams already documented and listed a complete

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list of questions to which Motley Rice objected and refused to answer on the basis of
privilege (Exhibit 1 attached to Sherwin-Williams’ July 22, 2010 motion to compel).
{¶59} Accordingly, we affirm the trial court’s judgment with respect to its finding
that the information sought was not protected by the attorney-client privilege.    We
reverse the trial court’s decision, however, with respect to whether “good cause” exists
to  compel  production  of  Motley  Rice’s  work  product.  Judgment  affirmed  in  part,
reversed in part, and remanded to the lower court for further proceedings consistent with
this opinion.
It is ordered that appellees and appellants share costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
SEAN C. GALLAGHER, J., CONCUR

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