Discovery of Prior Depositions Under Ohio Law
This is a brief analysis of whether prior depositions of a witness are discoverable under Ohio Law.
APPLICABLE LAW
Ohio Civ. R. Proc. 26
Green v. Toledo Hospital, 94 Ohio St.3d 480, 2002-Ohio-1482
Ohio Public Records Act - ORC 149.43 “Availability of Public Records”
Adams v. Metallica, Inc., 143 Ohio App. 3d 482, 758 N.E.2d 286 (Ohio Ct. App. Dist. 1, 2001)
State ex. rel. WBNS TV, Inc. v. Dues, 2004-Ohio-1497, 101 Ohio St. 3d 406, 412, 805 N.E.2d 1116, 1123
ARGUMENT 1: Civ.R. 26; request for prior deposition is “reasonably calculated to lead to discovery of admissible evidence”
“It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Ohio Civ. R. 26, “General Provisions Governing Discovery”, at ¶(B)(1)
Green v. Toledo Hosp., 94 Ohio St.3d 480, 2002-Ohio-1482
- The Court addressed admissibility of depositions from previous trials beginning at § “II”, p. 7 of the opinion, and held that prior trial testimony of doctor in same case could be submitted in the retrial as if it were deposition testimony.
Ohio Civ.R. 32(A) provides:
“At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any one of the following provisions:
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(e) That the witness is an attending physician or medical expert, although residing within the county in which the action is heard.”
While the issue in Green v. Toledo Hospital was whether prior testimony was admissible as a hearsay exception, our question has the more straightforward answer that prior deposition is admissible under R. 32(A).
If Defendants’ objection is that the prior deposition will be inadmissible, based on the ruling in Green v. Toledo Hospital it’s possible that the deposition itself will be admissible, and in any case will meet the broader requirement that information contained in the deposition will lead to admissible evidence.
ARGUMENT 2: Court should decline to uphold the protective order and should order the deposition be unsealed.
Civ.R. 26(C) provides for protective orders. The Metallica case (below) suggests that courts take a balancing approach when deciding to grant or remove protective orders, including R. 26(C)(6) that a deposition after being sealed be opened only by order of the court. The WNBS TV case looks at arguments under the Ohio Public Records Act for disclosure, and dismisses constitution right to privacy arguments raised in opposition.
In Adams v. Metallica, Inc., 143 Ohio App.3d 482 (Dist. 1, 2001), appellant applied to intervene in an action that had long since settled and been dismissed voluntarily. The court ruled that (a) permissive intervention is the appropriate procedural device to challenge a protective order in another action, and that (b) this particular appellant was not entitled to permissive intervention to challenge the protective order in this case.
The opinion has a laundry list of strong “equitable” arguments applicable to why the court should unseal our prior depostion. And I believe our situation is distinguishable from the dude’s.
The Ohio Supreme Court has held that protective orders under Civ. R. 26(C) are an exercise of the trial court’s discretion, says the court in Metallica. The court then goes on to state its opinion that docs filed for judicial proceedings ought not be public record, all the while acknowledging that the Ohio Public Records Act, and the United States and Ohio Supreme Courts do in fact consider them to be such.
At any rate, this Hamilton County Appeals Court decision is revisited by WNBS TV, below, but it’s worth noting that while the court takes a strong position, admittedly without any caselaw to support that position, the court does strike a note of caution at the end of its editorializing:
In sum, there appears to be no clear, unqualified public right to inspect pretrial discovery materials, even when they are filed with the trial court, under either the First Amendment, the common law, the “open courts” provision of the Ohio Constitution, or the Ohio Public Records Act. As a caveat, however, we note that the court’s control over access to discovery documents is not unfettered. Simply because there is no clear public right to these materials does not mean that trial courts should feel free to seal them from inspection. As noted by one court, “It is precisely because courts have the power to trump freedom of information laws that they should exercise this power judiciously and sparingly.” Pansy v. Borough of Stroudsburg (C.A.3, 1994), 23 F.3d 772, 791, fn. 29.
The Civil Rules clearly contemplate that discovery documents on file with the court shall not be sealed from the public absent “good cause shown,” thus creating a presumption in favor of public access to such materials. With this in mind, we agree with the court in Pansy that requests for protective and confidentiality orders should be viewed by trial courts with abundant skepticism and granted *491 only begrudgingly. See FitzGerald, Note, Sealed v. Sealed: A Public Court System Going Secretly Private (1990), 6 J.L. & Pol. 381, 382.
In State ex. rel. WNBS TV, Inc. v. Dues, 2004-Ohio-1497, 101 Ohio St. 3d 406, the Court held that a party did have access to the sealed records of a settlement between various “hockey entities” and the estate of a small boy who was killed by an errant puck at a hockey game.
The first argument the Court dismissed was that the confidentiality of a settlement amount was protected by one of the statutory exemptions to the Ohio Public Records Act. The opinion steps through the rationale very well at ¶¶ 23-39.
Secondly, the Supreme Court didn’t find that a constitutional right to privacy prohibited disclosure of the requested records because there was no “high probability of victimization” as in other cases where such a right was found (e.g., city employees’ social security numbers, police officers personal information from personnel files, personal information concerning children kept by city recreation department).
As a result, the Ohio Supreme Court ruled that the estate was entitled to the sealed records pursuant to R.C. 149.43. At ¶45, citing various cases from other jurisdictions.