[Cite as N.E. Monarch Constr., Inc. v. Morganti Ents., Inc., 2021-Ohio-2438.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

N.E. MONARCH CONSTRUCTION, INC., :

                 Plaintiff-Appellee,                     :
                                                                                No. 109845
                 v.                                      :

MORGANTI ENTERPRISE, INC.,
ET AL.,                                                  :

                 Defendants-Appellants.                  :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED IN PART AND REMANDED
                 RELEASED AND JOURNALIZED: July 15, 2021


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-19-915833


                                            Appearances:

                 David A. Corrado, for appellee.

                 Hanna Campbell & Powell, L.L.P., Kenneth A. Calderone,
                 and Anne M. Markowski; Brouse McDowell, L.P.A., James
                 T. Dixon, and Teresa G. Santin, for appellants.


MICHELLE J. SHEEHAN, J.:

                  Defendants-appellants, Morganti Enterprise, Inc. and Alan Morganti

(hereafter appellants will be collectively referred to as “Morganti Enterprise”),

appeal the trial court’s order granting plaintiff-appellee N.E. Monarch Construction,
Inc.’s (“Monarch Construction”) motion to compel discovery. Because we find that

the trial court abused its discretion in ordering the production of material claimed

to be privileged without first conducting an in camera review, we reverse the trial

court’s order in part and remand this matter.

                      PROCEDURAL HISTORY AND FACTS

             Monarch Construction filed suit against Morganti Enterprise, a

subcontractor, on two construction projects in two separate cases, alleging claims of

breach of contract, negligence, and fraud, as well as seeking to pierce the corporate

veil. The lawsuits were consolidated by the trial court and, on November 7, 2019,

Monarch Construction submitted 55 interrogatories and 67 requests for production

of documents to Morganti Enterprise. Within its discovery requests, Monarch

Construction propounded the following discovery requests on Morganti Enterprise:

      Interrogatory No. 13:
      Identify any and all evidence within your possession and/or
      knowledge that supports each and every response and/or affirmative
      defense as contained in your First Amended Answer and each and
      every allegation in your Counterclaim.

      Request for Production of Documents No. 23:
      Any and all Documents, notes, memos and/or correspondence
      between MEI and any other person and/or entity on any matter
      arising out of and/or connected to this Lawsuit.

             Morganti Enterprise responded in part to the discovery requests on

February 3, 2020. On February 12, 2020, Monarch Construction filed a motion to

compel and motion for sanctions asserting Morganti Enterprise provided

inadequate responses and asserted baseless objections. On February 25, 2020,
Morganti Enterprise filed a combined motion to strike plaintiff’s motion to compel

and motion to stay briefing on motion to compel in which it alleged Monarch

Construction did not make reasonable attempts to obtain the discovery it sought to

be compelled. On February 27, 2020, Monarch Construction responded, asserting

it did make reasonable attempts to resolve discovery disputes. Morganti Enterprise

filed a reply to Monarch Construction’s brief. On March 16, 2020, after a pretrial

conference was held, the trial court ordered the discovery motions to be held in

abeyance. On June 3, 2020, the trial court held a pretrial conference and set a

deadline of June 12, 2020, for Morganti Enterprise to file a responsive pleading to

Monarch Construction’s motion to compel discovery.

             On June 12, 2020, Morganti Enterprise filed a brief in 0pposition to

Monarch Construction’s motion to compel discovery in which they indicated they

served several supplemental discovery responses to Monarch Construction. As to

interrogatory No. 13, Morganti Enterprise objected and asserted that the

interrogatory sought information they need not supply as the interrogatory sought

“attorney’s work product and strategies” and facts regarding affirmative defenses.

They further stated that they provided supplemental information as to request for

production of documents No. 23 but objected to the request where it sought

“information protected by the work product privilege.”

             On June 19, 2020, Monarch Construction replied to Morganti

Enterprise’s brief noting the response to interrogatory No. 13 was an objection upon

attorney work product and defense strategies but argued that Morganti Enterprise
only “responded to the affirmative defenses aspect of the interrogatory and ignored

the counterclaim allegation and the answer responses aspect of the interrogatory.”

As to the request for production of documents No. 23, Monarch Construction noted

that Morganti Enterprise asserted privilege but did not provide a privilege log and

stated that “[o]nce a privilege log is produced then these documents can be produced

to the Court for an in-camera inspection to see if a privilege truly applies.”

              On June 23, 2020, the trial court granted Monarch Construction’s

motion to compel in its entirety. The trial court denied all of Morganti Enterprise’s

objections to the interrogatories posed and ordered Morganti Enterprise to answer

the interrogatories with specificity.    The trial court also denied all Morganti

Enterprise’s objections to the request for production of documents and ordered

Morganti to identify with specificity the documents by indicating the Bates stamp

numbers that contain the response to each of the document production requests.

The trial court ordered submission of the discovery materials within 30 days.

              On July 22, 2020, Morganti Enterprise filed a motion to stay

proceedings at 11:16 a.m., a notice of appeal at 4:13 p.m., and a notice of service of

their sixth response to discovery at 4:32 p.m. Within the notice of service of their

sixth response to discovery, Morganti Enterprise iterated its objections as to

interrogatory No. 13 and identified certain documents it supplied to Monarch

Construction as being in support of its counterclaim. As to request for production

of documents No. 23, Morganti Enterprise iterated its objection based on work

product privilege and stated it did not produce certain documents that were
withheld on the basis of work product or attorney client privilege, referencing an

attached privilege log. After the appeal was filed, Monarch Construction filed a

motion to dismiss, which was referred to this panel for consideration.

                             LAW AND ARGUMENT

             Morganti Enterprise presents this court with one assignment of error:

      The trial court erred by granting appellee’s motion to compel
      discovery of material that is privileged under the work product
      doctrine and attorney client privilege.

             Morganti Enterprise argues that the trial court erred in ordering the

production of an answer and of documents as to interrogatory No. 13 and request

for production of documents No. 23 because these discovery requests necessitate

the production of privileged materials. Morganti Enterprise has not argued any

other error in the order, and as such, we address only the error of which they

complain.

             Monarch Construction argues the trial court’s order is proper and that

Morganti Enterprise did not properly assert or claim a privilege and as such waived

any right to maintain this appeal. Monarch Construction further asserts this

argument in its motion to dismiss. We first address Monarch Construction’s motion

to dismiss. We note that the trial court’s order compelling discovery was a final

appealable order as far as it compelled the production of privileged material. See

Burnham v. Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536,

¶ 21 (“Any order compelling the production of privileged or protected materials

certainly satisfies R.C. 2505.02(B)(4)(a) because it would be impossible to later
obtain a judgment denying the motion to compel disclosure if the party has already

disclosed the materials.”). Monarch Construction argues in the motion to dismiss

that because Morganti Enterprise did not file a privilege log with the trial court

before it filed the instant appeal, they waived the ability to object to the discovery

order and cannot raise issues before this court not raised in the lower court. As we

find below that Morganti Enterprise preserved their right to object to the discovery

order, we overrule the motion to dismiss.

              We generally review an order to produce documents for an abuse of

discretion. Id. at ¶ 26. A court abuses its discretion where it can be said the order is

not merely an error of law or judgment but the order is implied as being

“‘unreasonable, arbitrary, or unconscionable.’” Id., quoting Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

              Both parties to this appeal have argued the scope of the record on

appeal. Monarch Construction asks us to disregard Morganti Enterprise’s filing of

a supplemental discovery response and privilege log as being outside the scope of

the appellate record because the notice of appeal was filed 21 minutes earlier.

Monarch Construction argues that because of this, Morganti Enterprise waived a

claim of privilege and cannot maintain this appeal. Morganti Enterprise argues that

this court should consider the responses therein because they were filed on the same

day as the notice of appeal. However, we need not determine the extent of the record

in such detail because we find that Morganti Enterprise initially objected to
interrogatory No. 13 and request for production of documents No. 23 and raised a

claim that the material sought was privileged.

              Civ.R. 26(B)(8)(a) provides for the production of a detailed account of

the material for which privilege is claimed. Although they raised the issue of

privilege, Morganti Enterprise failed to state with specificity what materials were

being withheld in the responses to interrogatory No. 13 and request for production

of documents No. 23. The trial court did not have this information when it ruled

upon the motion to compel. By not so doing in its initial responses to discovery or

in its briefing in opposition to Monarch Construction’s motion to compel discovery,

Morganti Enterprise did not provide Monarch Construction with the ability to

contest the discovery responses or to seek further production of the materials listed.

As such, the trial court was left without a guidepost for resolving the discovery

dispute as to Morganti Enterprise’s claims of privilege. However, the trial court’s

order granting the motion to compel was broad in scope and did not acknowledge

that a claim for privilege was made as to the two aforementioned discovery

responses. “[B]ecause responses to motions to compel may assert various claims of

privilege in resisting disclosure of materials, a trial court should explain why a

motion to compel production has been granted.” Burnham, 151 Ohio St.3d 356,

2016-Ohio-8000, 89 N.E.3d 536, at ¶ 28. At the time the trial court granted the

motion to compel, both the trial court and Monarch Construction were on notice

that two discovery requests were contested as seeking privileged information. The

trial court granted those requests without conducting further analysis or review of
the claimed privilege. In DeCuzzi v. Westlake, 191 Ohio App.3d 816, 2010-Ohio-

6169, 947 N.E.2d 1229 (8th Dist.), we found that

       [f]urthermore, we are somewhat constrained by the fact that the
       contested documents are not part of the record and we have not seen
       them. While it is difficult to determine whether a discovery request
       seeks work product in the abstract, it is much easier to determine
       whether responsive material is work product. A dispute over
       documents in a discovery request can be easily resolved by an in
       camera review by the trial court. There the distinction between
       discoverable evidence and work product is readily apparent. To quote
       Justice Potter Stewart of the United States Supreme Court, “I know it
       when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12
       L.Ed.2d 793 (1964) (Stewart, J., concurring).

DeCuzzi at ¶ 16. We ultimately determined in DeCuzzi that the trial court abused its

discretion in ordering the production of material that could contain attorney work

product “without having conducted an in camera review of the amy93@example.net.”

Id. at ¶ 16.

               In this case, the trial court was on notice that the disputed discovery

requests would encompass privileged materials. In Chiasson v. Doppco Dev.,

L.L.C., 8th Dist. Cuyahoga No. 93112, 2009-Ohio-5013, ¶ 13, we held, “[B]ecause the

trial court summarily denied the appellants’ motion, without conducting an

evidentiary hearing or undertaking an in camera inspection, we find that the record

is insufficiently developed to determine whether the documents requested in the

subpoena violate the work-product doctrine.” We then found the trial court abused

its discretion and remanded that case for the trial court to hold a hearing or conduct

an in camera review to determine if any of the materials at issue were protected

under the work-product doctrine. Id. at ¶ 16.
              While Morganti Enterprise failed to directly ask the trial court to

determine whether or not material to be produced would violate a privilege, the trial

court was aware that Morganti Enterprise claimed that the discovery requests

sought privileged material and should have compelled Morganti Enterprise to

identify with specificity the material it claimed privilege for and then conduct an in

camera review, especially in light of the fact that Monarch Construction noted the

claimed privilege and suggested that the trial court conduct an in camera inspection.

Accordingly, we sustain in part Morganti Enterprise’s assignment of error.

                                   CONCLUSION

              As Morganti Enterprise could bring an interlocutory appeal of an

order to compel production of privileged material, Monarch Construction’s motion

to dismiss is denied.    The order compelling Morganti Enterprise to produce

discovery was properly granted but for the two discovery requests in this case in

which privilege was asserted. The trial court should have ordered the documents for

which Morganti Enterprise claimed privilege to be produced for in camera

inspection. As such, we sustain Morganti Enterprise’s assignment of error in part

and remand this matter for further proceedings.

              Judgment reversed in part, and the matter is remanded to the trial

court for further proceedings consistent with this opinion.

      It is ordered that appellants and appellee share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the

common pleas 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.



_________________________
MICHELLE J. SHEEHAN, JUDGE

MARY J. BOYLE, A.J., and
ANITA LASTER MAYS, J., CONCUR
