Background
Andrew Jergens sued his father, William “Bill” Jergens, and two family businesses, alleging that Bill had misappropriated corporate assets. After Bill died, Andrew brought another action against Bill’s estate, a trust created by Bill, trustee Brian Jergens, and Bill’s professional business trust advisors: attorney John Stachler, financial advisor and accountant Gregg Devilbiss, and company president Robert Dix. Andrew alleged, among other claims, that they had conspired to interfere with his business relationships and had participated in improper transactions involving the family businesses.
Before Andrew served discovery, the three advisors moved to stay discovery, citing anticipated attorney-client-privilege and work-product disputes. They later asserted those protections in responses to requests for admission but did not answer the interrogatories or document requests or provide a privilege log. The trial court granted Andrew’s motion to compel, denied the advisors’ requests for a protective order, and held that they had waived all privilege and work-product objections by failing to assert them properly and timely.
The Court’s Holding
The Second District reversed. Limiting its review to whether the discovery order required disclosure of privileged material, the court assumed the advisors’ privilege assertions were true because the disputed discovery materials were not in the appellate record. It held that the trial court abused its discretion by applying a strict, per se waiver rule under the circumstances. A privilege log is not invariably required, and the advisors’ pre-discovery motion to stay—tantamount to a request for protection from discovery—together with their later objections and protective-order motions sufficiently preserved their assertions of attorney-client privilege and work-product protection.
The court also held that waiver of privilege could not be imposed as a discovery sanction. The trial court should have conducted an in camera review before compelling materials claimed to be privileged, even though the advisors did not request one. Its conclusions about Stachler’s role and the possible crime-fraud exception were premature because no evidentiary hearing had occurred and no evidence supported those findings. The appellate court expressed no view on whether particular documents ultimately are privileged or must be produced and remanded for further proceedings.
Key Takeaways
- Failing to provide a privilege log does not automatically waive attorney-client privilege or work-product protection under Ohio law.
- A court may not order disclosure of privileged material as a sanction for discovery violations.
- When privilege claims are complicated or unclear, the trial court should use an in camera review to determine whether the disputed materials are protected.
- The crime-fraud exception requires evidence supporting probable cause to believe a crime or fraud occurred and that the communications furthered it; allegations alone are insufficient.
Why It Matters
The decision rejects an “assert it or lose it” approach to privilege disputes when a party has made good-faith efforts to preserve its protections. Ohio trial courts retain broad authority to manage discovery, but that authority does not permit them to compel potentially privileged communications without first determining whether the claimed protections apply.
The ruling also underscores that procedural shortcomings in discovery responses should be addressed through authorized remedies, not through wholesale forfeiture of attorney-client privilege or work-product protection.