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Are Factual Basis for Affirmative Defenses Discoverable?

By Jason A. Paskan, Esq.

For years, attorneys have been able to shield the factual basis for affirmative defenses from discovery by relying on Sawyer v. Devore, (1994), 8th Dist. No. 65306, 1994 WL 614978, unreported. Recently, the Eighth District attempted to limit its holding in Sawyer but failed to fully close the door for defense attorneys. Decuzzi v. City of Westlake, (2010), 8th Dist. No. 94661, 2010 Ohio 6169.

In Sawyer, supra, the plaintiff brought a cause of action asserting numerous claims sounding in employment law against a former employer. Id. at 2. The plaintiff sought "the facts upon which [defendants] relied in support of [defendants'] asserted affirmative defenses" in a motion to compel. Id., at 7. The court, in consideration of the discovery request determined that the plaintiff "essentially demanded that [defendants] examine their own body of evidence relevant to [defendants'] affirmative defenses and compile the relevant evidence into a neat little package to be used against [defen-dants] by [plaintiff]." Id.

The Eighth District Court of Appeals affirmed the trial court's denial of the motion to compel the factual basis for the affirmative defenses for two reasons: (1) The court determined that the "discovery request sought to obtain a vast amount of general information which was not easily compiled. Therefore, the discovery request *** cannot be logically viewed as anything other than an attempt to conduct a fishing expedition;" and (2) Civ. R. 26 does not provide for the discovery of any facts upon which defendants premised their affirmative defenses. Sawyer, at 7. The court noted that they were unable to hold that "the alleged need and the relevancy of such evidence outweighed the hardship which would have been imposed upon [defendants] had the trial court permitted discovery of the information" pursuant to Civ. R. 26(C). Id. Further, the Eighth District stated that had the trial court granted the discovery request, the trial court would "have permitted [defendant] to take advantaged of the industry and efforts put forth by [defendants'] counsel" pursuant to Civ. R. 26(A). Thus, defense attorneys were able to prevent plaintiffs from obtaining the underlying factual basis of affirmative defenses.

The Eighth District Court of Appeals attempted to narrow Sawyer in Decuzzi, supra, when it revisited the issue of discoverability of affirmative defenses. Specifically, the court stated, "[i]n Sawyer, the court found that the plaintiff sought such a vast amount of general information that it could not be viewed as anything more than a 'fishing expedition.'" Decuzzi, at ¶13. "Sawyer did not address the issue of whether the discovery request sought work-product information. Instead, its holding dealt with the enormity of the plaintiff's discovery request and its implicit demand that defense counsel sift through 'their own body of evidence, determine the elements of that body of evidence relevant to [defendants'] affirmative defenses and compile the relevant evidence into a neat little package to be used against [defendants].' Consequently, we do not read Sawyer to prohibit discovery of facts supporting affirmative defenses." Decuzzi, at ¶14.

Notwithstanding the Eighth District's holding in Decuzzi, the work-product privilege set forth in Civ. R. 26(B)(3) still permits the court to exercise discretion with regard to the discovery of privileged materials after an in-camera inspection. See, Huntington Natl. Bank v. Dixon, (2010), 8th Dist. No. 63604, 2010- Ohio-4668. Where the "work-product" privilege is asserted for "opinion work-product," the privilege is nearly absolute. See, State v. Hoop, (1999), 12th Dist. No. CA98-04-017, 134 Ohio App. 3d 627. Where the "work-product" is "fact work-product," there must be a showing of good cause demonstrating a need for the materials set forth in Civ. R. 26(B)(3). See also, Jackson v. Greger, (2006), 110 Ohio St. 3d 488. Additionally, the Decuzzi opinion does not intrude upon the "attorney-client privilege" codified in R.C. 2317.02(A).

The Decuzzi Court took the work-product privilege into consideration, specifically "opinion work-product" when applying Civ. R. 26 to the plaintiff's discovery requests, and found that "[d]iscovery of this nature is asking the [defendant] to divulge how it intends to defend its case, and this information can legitimately be considered privileged under the work-product doctrine." Decuzzi, at ¶18.

Accordingly, defense counsel has no additional burden to provide a plaintiff with work product information than it had prior to the Eighth District's ruling in Decuzzi, supra. Absent good cause as required by Civ. R. 26(B)(3), when the discovery requests seek "fact-work product" and under the near absolute protection afforded "opinion work product," defense counsel need not provide the opposition with a basis for affirmative defenses in a manner that is convenient for the discovering party. See, Decuzzi, at ¶15. Stated differently, defendants are not required to provide plaintiffs with "a neat little package to be used against [defendants]." Sawyer, at 7.