Let’s Go To The Videotape

In a 5-3 decision, the Ohio Supreme Court has held that an order compelling discovery despite a claim of work product protection is not an appealable final order.

At issue is production of a surveillance tape of a plaintiff that medical malpractice defendants wish to use for impeachment.

Plaintiff-appellee, Henry Smith, sued defendants-appellants, Dr. Ying Chen, D.O., and his employer, OrthoNeuro, alleging that he suffers from spinal injuries resulting from their medical malpractice. During pretrial discovery, Smith became aware that defendants had created a surveillance video of him. Defendants refused to turn the video over to Smith, insisting that it was attorney work product that they intended to use only as impeachment evidence and it therefore was not discoverable. Smith requested the videotape, and after a series of discovery motions, the Franklin County Court of Common Pleas ordered defendants to produce it.

Justice Kennedy would decide the case on its merits.

Shades of The Fortune Cookie? (Mike Frisch)