When a training agency decides it is more important than its instructor members or, worse, the training agency helps the plaintiff sue its own members

Posted: December 17, 2014 | Author: | Filed under: Scuba Diving | Tags: , , , , , , , , , , | 8 Comments

This is rare and should not be viewed as common in the industry. At the same time, This is an outrage and this agency needs new directors, new officers and a new board…..NOW!

Most importantly, the training agency lied to its members, continues to lie to its members and requires them to provide information to the agency that they claim is confidential and protected that is NOT.

Privilege is protection afforded by the US constitution that allows a client to say anything and everything to his or her attorney. Privilege also applies to communications between a patient and a physician and a person and his clergy. No court can compel the attorney, physician or priest to say what they have been told.

This is a sacred right as well as a legal issue. It allows the attorney to prepare the best defense or claim because they know everything. It allows a physician to provide the best care because they know everything. It allows a clergy to provide comfort and the person to receive forgiveness because the clergy knows everything.

There is one major exception to the law that applies to patients who have injuries from gun shots. All medical personnel are required to report this to law enforcement in most states. What is said by the patient is not reported, just the type of injury.

Without privilege, an attorney would not know how to prosecute or defend a case, and that is a right guaranteed by the US Constitution. Without privilege, a person might not see their physician or be defended by their attorney. Without privilege, a sinner might never receive absolution. Privilege is a right that is given by a higher protection than any other law or right by state or federal governments except the freedoms of the constitution.

Privilege is limited in its scope. The information must be provided by the person to the professional: clergy, doctor or lawyer. It must be specific to the professional and be of the nature of the services being offered. The information can only be heard or seen by the professional. It must be done after the incident, if legal in nature, to be privileged. It must be prepared by the client for the attorney, at the attorney’s request. Any waiver or violation of these rules and the privilege is waived, or gone.

No other person, party or organization can hear or see the privileged information. If a person, party or organization does, the privilege is lost. Again, there are exceptions such as employees of the attorney. Even improper handling of the information or possible access to the information can waive privilege. Courts have ruled handing privileged information to a third party, who was able to see the information waives privilege. Having a third party over hear the communication waives privilege. Handing the information to your insurance company or training agency before, as, or any time after an incident waives privilege.

That means you cannot take a document prepared for an insurance company and give it to your attorney and call it privileged. That means you cannot prepare a report for your attorney and give a copy to your insurance company. Once it leaves your hands and goes to anyone else other than the attorney the privilege is lost. Any document prepared prior to the incident also has no privilege unless specifically prepared in anticipation of litigation by your attorney.

How that got screwed up in a scuba diving case.

(Parentheses Surround the name of the document from which the information or the quote is taken. There are a lot of documents in this case, and discovery is ongoing.)

Simplified Version of the Facts

David Tuvell was participating in a Professional Association of Scuba Instructors (PADI) Discover Scuba Diving program at the Bear Lake Aquatic Base, which is owned by the Great Salt Lake Council of the Boy Scouts of America.  The dive program was offered by Blue Water Scuba of Logan, Utah and supervised by Corbett Douglas an employee of Blue Water Scuba. Tuvell died during the dive, and his parents sued everyone.

Case

Case Number: No. 1:12CV00128 BCW

US District Court District of Utah, Northern Division

The Parties

Plaintiffs

David Christopher Tuvell, Deceased

Christopher Joseph Tuvell, father of the deceased

Sherry Lynn Tuvell, mother of the deceased

The estate of David Christopher Tuvell

Defendants

Corbett Douglas, Instructor

Boy Scouts of America (BSA)

Blue Water Scuba of Logan, Utah

Bear Lake Aquatic Base

Great Salt Lake Council of the BSA

Professional Association of Diving Instructors (PADI)

PADI Americas, Inc. legal name of PADI

Lowell Huber, owner of Blue Water Scuba of Logan

PADI

PADI was sued because it was a PADI course the deceased was taking at the time. PADI is a training agency that provides training, curriculum and other benefits to and for scuba diving instructors. PADI courses train beginning divers as well as advanced diver and dive instructors. PADI is a mixed membership organization in that it has members who are professional, commercial and non-professional divers.

PADI has a form, the first page of which is pasted below, called the “Incident Report Form.” PADI contractually requires any member of PADI to complete the form and send it to PADI for any incident, injury or fatality. The form states it is “…prepared for the purpose of receiving legal advice or for use in anticipated litigation.” This would imply that the information on the form is protected by privilege. PADI tells its members, they must complete the form and that the information is privileged. See The ABCs of Incident Reporting.

clip_image002[4]PADI’s position on this issue was set forth on a dive bulletin board. (Dive incident reports [Archive] – Scuba Diving Forum – Diving Social Network) The position was stated on the forum by PADI’s director of legal and risk management.

As was speculated on the bulletin board, any incident reports provided to PADI are considered preapred in anticipation of litigation and are therefore, confidential and not released except on the direction of legal counsel or by court order. [spelling error appeared in the original post]

PADI members are required to file incident reports, even if they were just present on the scene. The report states it is privileged; however, it isn’t. Even worse, as these facts show, PADI allegedly provides the reports to the plaintiff as part of any settlement agreement if it is sued. So PADI, in effect, to protect its own butt, lies to its members, and then helps screw its own members in court.

PADI is not a law firm. PADI is an educational organization. There is no privilege with any document or statement made to PADI by anyone for any reason. A confidential document is still provided to all parties in litigation; it just can’t be given to people, not part of the litigation.

How PADI Mislead and then Pissed off the Court

PADI was a defendant in the case. PADI secretly settled with the plaintiffs in the case. This means the parties worked out an agreement where PADI paid the plaintiffs an amount of money and the plaintiffs released PADI, and dismissed their claims against PADI.

Settlement agreements are signed when the parties agree to settle their dispute and quit suing each other. A settlement agreement in litigation has two parts. The first is the agreement between the parties which outlines the amounts and the terms of the agreement. The second is the motion to dismiss based on the settlement agreement that is filed with the court. The court and the other parties never see the settlement agreement itself. Nor does the motion state anything other than the parties have settled.

The court then dismisses the case. In this case, however, several “odd things” occurred. Odd should be replaced by outright fraudulent things.

First, the settlement agreement was signed but no motion to dismiss PADI was made to the court. The original complaint was then amended, with PADI’s consent and allegedly PADI’s help, to remove most of the claims against PADI, even though PADI had settled ALL claims against it.

Once the motion is filed, the Judge reviews the motion to dismiss and grants the motion 99.999% of the time and dismisses the parties from the case, or if one party is staying, the claims between the parties. As a result, one defendant is gone from the case.

PADI signed a settlement agreement with the plaintiffs. The settlement agreement in part stated:

Claimants further understand and agree that this settlement is a compromise of disputed claims and that payment is not to be construed as an admission of liability on the part of any of the Released Parties who are released herein and by whom liability is expressly denied. Even though PADI is settling, it maintains and believes that Claimants are correct that defendants Blue Water Scuba, Lowell Huber, and Corbett Douglas acted improperly and were the primary if not sole cause of this tragic event. PADI desires and intends to remain a party to this action to the extent the court will allow in order to defend the professional reputation of PADI and to defend and represent PADI employees and agents who may be witnesses in this action. [emphasize added] (PADI-Tuvell Settlement Agreement)

I’ve practiced law for thirty plus years, and I have never seen anything like this. I’ve reviewed or written several dozen settlement agreements, and I have never seen or written anything like this.

PADI and other plaintiffs intended to keep their settlement agreement a secret. However, Utah law requires a settlement agreement releasing one defendant to be turned to the other defendants in discovery. When the plaintiffs’ attorney let it slip during a court hearing that a settlement had been reached with PADI, the other defendants demanded that the settlement agreement be provided to everyone in discovery.  

Meanwhile, discovery in the case proceeded and, just before it looked like PADI would be dismissed from the case in accordance with its complete settlement of all the plaintiffs’ claims against it, PADI “inadvertently” produced its Members’ incident reports to the plaintiffs without a discovery request and without first notifying the Members that their confidential reports would be produced. After a few days went by, the attorneys for PADI notified the other parties that the documents had been “inadvertently” produced and asked the documents be destroyed because the Blue Water Defendants might want to claim that they were protected by the attorney-client privilege. (Letter from PADI’s Counsel 10-18-2013, Objections to PADI’s Disclosures.)  This is absolute BS. See above information on privilege.

Eventually, the court found out what was going on with the secret settlement. (Order granting Mtn for Sanctions 08-27-2014.) The court granted sanctions (monetary damages) to the remaining defendants because PADI had:

·         Not immediately notifying the court of the settlement agreement

·         It prolonged the litigation by not leaving the case

·         Entering into a secret settlement agreement

·         Colluding with the plaintiff to file false and misleading claims post-settlement with the court

What unhinges me is this statement.

Plaintiffs and PADI have admitted that PADI insisted that it remain a party to the case, even after PADI and the Plaintiffs had reached a complete settlement of all claims, so PADI could assist the Plaintiffs in proving their claims against the Blue Water Defendants. [emphasis added]

The treachery lies and fraud in this case are unreal.

1.     PADI put itself before its own members. This was not a Spock issue were sacrificing one would save the world. This was simply we are going to sacrifice our member for no reason.

2.     This is another example of abuse of members by telling them they can protect them by completing forms.

3.     PADI lied and deceived its members to collect information about incidents they had no right to have and no right to say was privileged.

Again, this is BS. There is no privilege except between an attorney and the attorney’s client. Anything prepared in anticipation of litigation is prepared for the attorney, no one else. That has been the law since I passed the bar (the test to become an attorney). The attorney can only see the document, no third party, and no non law firm people.

Think you trade association represents you? You better make sure it does.

Do Something

At the very least let, PADI know. I suggest you join another association or form a new one.

NEVER EVER FILL OUT ANY INCIDENT REPORT FORM FOR ANYONE EXCEPT YOUR ATTORNEY.

 

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, PADI, Professional Association of Dive Instructors, Discover Scuba Course, Great Salt Lake Council, BSA, Boy Scouts of America, Blue Water Scuba, Privilege, Attorney – Client Privilege, Attorney Privilege, Bear Lake Aquatic Base,

 

 

 

 

Advertisement

Attorney Client Privilege is not under control of the defendant

Posted: October 21, 2013 | Author: | Filed under: Ohio, Ski Area | Tags: , , , , , , , , | Leave a comment

For the protection of privilege to be applicable, the document or communication must be prepared for the attorney, not just given to the attorney

Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)

Plaintiff: Megan Nageotte

Defendant: Boston Mills Brandywine Ski Resort, et al., Raymond Conde, John Doe employees 1-5, John Doe individuals 1-5, and John Doe entities 1-5,

Plaintiff Claims: Negligence

Defendant Defenses: Documents were protected by Attorney Client Privilege

Holding: For the Plaintiff. No privilege applied to ski area witness statements

There is a misunderstanding about what attorney-client privilege is and how it works. Simply, a communication, of any type, prepared for an attorney during or in anticipation of litigation is protected because of attorney-client privilege. That means that no one can be told of or about or see the communication.

In this case, the plaintiff was injured when she did not let go or could not let go of a rope tow at the defendant ski area. She went around the bullwheel causing her injuries to her hand. She sued claiming the ski area and known, and unknown employees (John Does) were negligent.

During the discovery phase of the litigation, the plaintiff requested copies or to see the witness statements taken by an employee at the time of the accident. The ski area refused to provide them saying the witness statements were protected by attorney-client privilege, so she could not have them.

Ms. Nageotte [plaintiff] sought the witness statements of Mr. Conde [ski area employee and defendant] because Mr. Conde was working at the top of the slope where Ms. Nageotte was injured. Further, Ms. Nageotte believes that Mr. Conde failed to press an emergency stop button or otherwise prevent Ms. Nageotte’s injuries.

The plaintiff filed a motion to get the statements which was granted by the trial court. The defendant appealed the trial court’s motion to the appellate court.

Summary of the case

The issue before the appellate court was simple. Was the witness statements taken at the time of the accident by an employee of the ski area were protected by attorney-client privilege.

The burden to prove a document is protected is on the person attempting to protect the document. Consequently, the burden to prove the witness statements should not be provided to the plaintiff was on the ski area. The ski area’s argument was because the witness statements were provided to the attorney providing the defense to the ski area, the documents were protected.

Brandywine and Mr. Conde assert that Mr. Conde’s witness statements are protected by the attorney-client privilege because the statements were at some point provided to Brandywine’s and Mr. Conde’s attorney. Brandywine and Mr. Conde submitted the affidavit of their attorney, who averred that he is the attorney representing the defendant in the action and that Brandywine and its liability insurer provided him with Mr. Conde’s witness statements “for the purpose of defending this action.”

The lift supervisor of the defendant ski area testified about the witness statements and why they were taken.

Mr. March testified that: (1) the ski patrol, an all-volunteer organization, typically obtains witness statements; (2) Mr. March typically reviews those witness statements; (3) the witness statements are obtained and preserved as a part of Brandywine’s insurance program; (4) the statements are turned over to the insurance carrier if there is a claim made; and (5) the witness statements are turned over to counsel if necessary to defend against any litigation.

None of the reasons for the statements or timing of the statements would support an argument that the statements were privileged.

In order for a document to constitute a privileged communication, it is essential that it be brought into being primarily as a communication to the attorney.” (Emphasis added.) In re Klemann, 132 Ohio St. 187, 192, 5 N.E.2d 492 (1936). “A document of the client existing before it was communicated to the attorney is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege.”

That means that if the documents were to be privileged, when the witnesses were preparing the statements, they had to be done so knowing they were for the attorney, handed or mailed to the attorney and not seen by anyone other than the attorney for the ski area.

Just turning something over to an attorney does not make it privileged.

The documents were not made in anticipation of litigation because at the time of the accident, there was no litigation and the ski area had not been informed of litigation.

The people preparing the statements, the witnesses, were not preparing those statements for an attorney. They were preparing them for the ski area. There was probably nothing on the paper or form it indicating that the statements were for an attorney, probably only the name of the ski area.

Shortly after the incident, Mr. March began to take witness statements. He agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim. Moreover, he agreed that, at the time the witness statements were made, he did not know a claim or lawsuit was coming. Further, it is unclear when the statements were handed over to the insurance company and the attorney.

So Now What?

Simply put, for a statement to be protected, it must be made for and given to an attorney. No one else can see the document. The person making the communication must know about the litigation and know they are making the communication for the attorney.

The person making the communication must know that attorney-client privilege is going to apply to the communication when the document is being made for privilege to apply.

If you have an incident where you have a belief that (1) litigation is going to occur and (2) there is information your attorney may need and (3) you don’t want anyone else to know you must contact your attorney immediately. Your attorney must direct the creation of and transmittal of the communications.

In most states, documents prepared for insurance companies, even after litigation has started are not protected by attorney-client privilege.

Attorney-client privilege is a basic right that has an unbelievable power to protect. However, to fall within that protection each step must be met. Courts today, in order to facilitate discovery, will rule against protecting a document. If you want to protect a document, you must work with your attorney before the communication is prepared.

If you have a disaster, call your attorney first and then call your insurance company. Only communicate to anyone other than your attorney, only what your attorney tells you to communicate. Communicate everything to your attorney.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Megan Nageotte, Boston Mills Brandywine Ski Resort, Attorney Client Privilege, Privilege, Ski Area, Rope Tow, Lift Accident, Bullwheel, Witness Statement,

WordPress Tags: Attorney,Client,Privilege,defendant,protection,communication,Nageotte,Boston,Mills,Brandywine,Resort,Ohio,LEXIS,Plaintiff,Megan,Raymond,Conde,John,employees,individuals,entities,Claims,Negligence,Defenses,Documents,area,statements,anticipation,litigation,injuries,Does,discovery,phase,employee,accident,Further,Summary,person,argument,affidavit,action,insurer,purpose,supervisor,March,insurance,carrier,Emphasis,Klemann,production,existence,Just,paper,incident,Moreover,lawsuit,statement,belief,information,creation,transmittal,Courts,disaster,Communicate,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,Outside,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Rope,Lift,Bullwheel,appellate

Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)

Posted: October 21, 2013 | Author: | Filed under: Legal Case, Ohio, Ski Area | Tags: , , , , , , , , | Leave a comment

Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)

Megan Nageotte, Appellee v. Boston Mills Brandywine Ski Resort, et al., Appellants

C.A. No. 26563

COURT OF APPEALS OF OHIO, NINTH JUDICIAL DISTRICT, SUMMIT COUNTY

2012 Ohio 6102; 2012 Ohio App. LEXIS 5266

December 26, 2012, Decided

SUBSEQUENT HISTORY: Discretionary appeal not allowed by Nageotte v. Boston Mills Brandywine Ski Resort, 2013–Ohio–1622, 2013 Ohio LEXIS 1085 (Ohio, Apr. 24, 2013)

PRIOR HISTORY: [**1]

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO. CASE No. CV 2012 01 0175.

DISPOSITION: Judgment affirmed.

COUNSEL: JEFREY M. ELZEER, Attorney at Law, for Appellants.

MARK J. OBRAL and THOMAS J. SILK, Attorneys at Law, for Appellee.

JUDGES: EVE V. BELFANCE, Judge. MOORE, P. J. DICKINSON, J. CONCUR.

OPINION BY: EVE V. BELFANCE

OPINION

DECISION AND JOURNAL ENTRY

BELFANCE, Judge.

[*P1] Defendants-Appellants Brandywine Ski Resort, Inc. (“Brandywine”) and Raymond Conde appeal from the order of the Summit County Court of Common Pleas which directed Brandywine and Mr. Conde to produce the witness statements of Mr. Conde. For the reasons set forth below, we affirm.

I.

[*P2] On January 15, 2010, Plaintiff-Appellee Megan Nageotte went to Brandywine to go skiing. As she was “utilizing a tramway tow-rope, attempting to disembark, * * * her hand was caused to be pulled into the tramway tow-rope wheel [(bullwheel),] lifting her off of the ground and propelling her around the entire length of the tow-rope wheel, * * * causing serious and lasting personal injuries * * * .” On January 10, 2012, Ms. Nageotte filed a multi-count complaint against Boston Mills Brandywine Ski Resort, Brandywine Ski Resort, Boston Mills Ski Resort, Boston [**2] Mills Ski Resort, Inc., Mr. Conde, in his capacity as an employee, John Doe employees 1-5, John Doe individuals 1-5, and John Doe entities 1-5, which included several counts alleging negligence of the Defendants. Subsequently, Ms. Nageotte sought leave to file an amended complaint, which was unopposed, to consolidate the ski-resort defendants to a single defendant: Brandywine Ski Resort, Inc. Her motion was ultimately granted.

[*P3] The matter proceeded to discovery, at which point the Defendants refused to produce witness statements of Mr. Conde, asserting both attorney-client privilege and the work-product doctrine. Ms. Nageotte filed a motion to compel and/or request for an in-camera inspection and extensive briefing by both sides followed. No hearing was held on the issue. The trial court concluded that neither the work-product doctrine nor the attorney-client privilege applied and granted the motion to compel.

[*P4] Brandywine and Mr. Conde have appealed the trial court’s ruling with respect to the issue of attorney-client privilege but not the application of the work-product doctrine. Ms. Nageotte filed a motion to dismiss this appeal, asserting that this Court lacked jurisdiction; however, [**3] we subsequently denied her motion and see no reason to revisit that ruling.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE’S MOTION TO COMPEL THE PRODUCTION OF STATEMENTS OF DEFENDANT-APPELLANT, RAYMOND CONDE, AS THE ATTORNEY-CLIENT PRIVILEGE PROTECTS THE DISCLOSURE OF THESE STATEMENTS.

[*P5] Brandywine and Mr. Conde assert in their sole assignment of error that the trial court erred in concluding that the attorney-client privilege did not apply to protect disclosure of Mr. Conde’s witness statements. Because we conclude that the trial court did not err in determining that Brandywine and Mr. Conde failed to meet their burden, we affirm its ruling.

[*P6] [HN1] “Although, generally, discovery orders are reviewed under an abuse-of-discretion standard, the Supreme Court of Ohio has concluded that the issue of whether the information sought is confidential and privileged from disclosure is a question of law that should be reviewed de novo.” Ward v. Summa Health Sys., 184 Ohio App.3d 254, 2009-Ohio-4859, ¶ 11, 920 N.E.2d 421 (9th Dist.). [HN2] “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * .” Civ.R. 26(B)(1).

[*P7] [**4] [HN3] “In 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.” (Internal quotations and citations omitted.) State ex. rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port. Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 24, 905 N.E.2d 1221.

R.C. 2317.02(A), by its very terms, is a mere testimonial privilege precluding an attorney from testifying about confidential communications. 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 and citations omitted.) Id.

[*P8] Thus, as Ms. Nageotte seeks discovery of Mr. Conde’s witness statements, the question is whether the common-law attorney-client privilege applies. [HN4] “[T]he party seeking protection under the privilege carries the burden of establishing the existence of that privilege.” Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28, 2003 Ohio 3358, ¶ 12, 790 N.E.2d 817 (8th Dist.); see also Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, ¶ 19, 912 N.E.2d 608 (1st Dist.), citing Lemley v. Kaiser, 6 Ohio St.3d 258, 263-264, 6 Ohio B. 324, 452 N.E.2d 1304 (1983). [**5] At issue in this case is whether appellants met their burden to establish the existence of the privilege.

[HN5] The common-law attorney-client privilege applies (1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.

(Internal quotations and citations omitted.) Grace at ¶ 19; Perfection Corp. at ¶ 12.

[*P9] Ms. Nageotte sought the witness statements of Mr. Conde because Mr. Conde was working at the top of the slope where Ms. Nageotte was injured. Further, Ms. Nageotte believes that Mr. Conde failed to press an emergency stop button or otherwise prevent Ms. Nageotte’s injuries. Brandywine and Mr. Conde assert that Mr. Conde’s witness statements are protected by the attorney-client privilege because the statements were at some point provided to Brandywine’s and Mr. Conde’s attorney. Brandywine and Mr. Conde submitted the affidavit of their attorney, who averred that he is the attorney representing the defendant in the [**6] action and that Brandywine and its liability insurer provided him with Mr. Conde’s witness statements “for the purpose of defending this action.” In addition, Brandywine and Mr. Conde relied on portions of the deposition of Michael March, who is the supervisor of the lifts at Brandywine Ski Resort. A large portion of Mr. March’s deposition was filed in this case, including some portions filed with Ms. Nageotte’s motion to compel.

[*P10] Mr. March testified that: (1) the ski patrol, an all-volunteer organization, typically obtains witness statements; (2) Mr. March typically reviews those witness statements; (3) the witness statements are obtained and preserved as a part of Brandywine’s insurance program; (4) the statements are turned over to the insurance carrier if there is a claim made; and (5) the witness statements are turned over to counsel if necessary to defend against any litigation. Mr. March agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim.

[*P11] [HN6] “In order for a document to constitute a privileged [**7] communication, it is essential that it be brought into being primarily as a communication to the attorney.” (Emphasis added.) In re Klemann, 132 Ohio St. 187, 192, 5 N.E.2d 492 (1936). “A document of the client existing before it was communicated to the attorney is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege.” (Emphasis omitted.) (Internal quotations and citations omitted.) Id. See also In re Story, 159 Ohio St. 144, 147, 111 N.E.2d 385 (1953) (noting that, in some instances, reports and records, which according to custom are turned over and remain in possession of attorney, are privileged communications); In re Keough, 151 Ohio St. 307, 85 N.E.2d 550 (1949), paragraph two of the syllabus.

[*P12] In addition, [HN7] “[o]therwise discoverable information cannot be made privileged by merely turning it over to an attorney.” Harpster v. Advanced Elastomer Sys., L.P., 9th Dist. No. 22684, 2005-Ohio-6919, ¶ 14. There is evidence in the record that indicates the statements at issue were not brought into being primarily as a communication to the parties’ attorney and that the document [**8] existed before it was communicated to the attorney and was not prepared at the direction of the attorney. See id. Shortly after the incident, Mr. March began to take witness statements. He agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim. Moreover, he agreed that, at the time the witness statements were made, he did not know a claim or lawsuit was coming. Further, it is unclear when the statements were handed over to the insurance company and the attorney.

[*P13] Moreover, we cannot say that the trial court erred in concluding that Brandywine failed to meet its burden. It is not clear whether the witness statements at issue were in fact confidential. See Grace, 182 Ohio App.3d 243, 2007-Ohio-3942, at ¶ 19, 912 N.E.2d 608. It is not evident from the materials provided what the circumstances were under which Mr. Conde’s witness statements were taken, how many witness statements were taken, or who in fact took the statements.1 For instance, it is unclear whether Mr. Conde gave his statement with just Mr. March present [**9] or in the presence of other people. Thus, the trial court was not presented with evidence that the witness statements at issue were confidential. If the statements were not confidential, the attorney-client privilege would not apply. See Grace at ¶ 19; Perfection Corp., 153 Ohio App.3d 28, 2003-Ohio-3358, at ¶ 12.

1 Mr. March’s deposition seems to indicate that he took at least one of Mr. Conde’s witness statements; however, Mr. March’s testimony also evidences that ski patrol is typically responsible for taking witness statements.

[*P14] Accordingly, we conclude the trial court did not err in concluding that the witness statements were not protected from discovery by the attorney-client privilege in light of the evidence presented by Brandywine and Mr. Conde. Brandywine’s and Mr. Conde’s assignment of error is overruled.

III.

[*P15] In light of the foregoing, the judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall [**10] constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

EVE V. BELFANCE

FOR THE COURT

MOORE, P. J.

DICKINSON, J.

CONCUR.

WordPress Tags: Nageotte,Boston,Mills,Brandywine,Resort,Ohio,LEXIS,Megan,Appellee,Appellants,COURT,APPEALS,NINTH,JUDICIAL,DISTRICT,SUMMIT,December,SUBSEQUENT,HISTORY,Discretionary,PRIOR,APPEAL,FROM,JUDGMENT,COMMON,PLEAS,CASE,DISPOSITION,COUNSEL,JEFREY,ELZEER,Attorney,MARK,OBRAL,THOMAS,SILK,Attorneys,JUDGES,BELFANCE,Judge,DICKINSON,CONCUR,OPINION,DECISION,JOURNAL,ENTRY,Defendants,Raymond,Conde,statements,January,Plaintiff,length,injuries,complaint,employee,John,employees,individuals,entities,negligence,defendant,discovery,client,product,doctrine,inspection,jurisdiction,ASSIGNMENT,ERROR,TRIAL,MOTION,COMPEL,PRODUCTION,APPELLANT,PRIVILEGE,PROTECTS,DISCLOSURE,Although,discretion,Supreme,information,Ward,Summa,Health,Dist,Parties,action,statute,Internal,quotations,citations,State,Toledo,Blade,Lucas,Port,Auth,testimonial,proscription,speech,dissemination,relationship,Thus,protection,existence,Perfection,Corp,Travelers,Grace,Mastruserio,Lemley,Kaiser,advice,adviser,purpose,confidence,instance,Further,affidavit,insurer,addition,Michael,March,supervisor,insurance,carrier,litigation,person,communication,Emphasis,Klemann,Story,instances,custom,possession,Keough,paragraph,syllabus,Harpster,Elastomer,direction,incident,Moreover,lawsuit,fact,statement,presence,testimony,execution,Clerk,notation,Costs,tramway,whether,pursuant