Wednesday, November 17, 2010

Eighth District Rules that Facts Supporting Affirmative Defenses are Discoverable as Long as Parties ask for "Letters, Memorandum, and Other Documents"

Scenario:  Party A sues Party B alleging wrongful termination, pay discrimination, hostile work environment, unsafe work environment, and witness intimidation. Party B denies everything and asserts 27 Affirmative Defenses.   Party A's lawyer is pissed. Party B is a bullshitter and playing games. They get into a "heated  debate," call each other names, and make threats.  Finally, Party A files a motion to compel to get Party B to divulge the "exact factual defense[s]", of the 27, that Party B will actually prove in its case and to provide "specific reference to facts, exhibits, dates, witnesses, and transactions between parties."  Party B objects and claims that the facts and materials underlying its affirmative defenses are protected under the work-product doctrine. The trial court tells Party B to put up or shut up and grants Party A's motion to compel. Party B appeals.

This is what happened in Decuzzi v. City of Westlake, 2010 Ohio 5365, 2010 Ohio App. LEXIS 4518 (8th Dist. Cuyahoga Co., November 4, 2010). And the 8th District Appellate Court, reversed.  

The court found that the work-product doctrine applied and Party B did not have to produce any information.  Under Ohio Rule of Civil Procedure 26(B)(3), (the work-product doctrine) documents and other informations prepared in anticipation of litigation or for trial by a party or its representative do not have to be produced, unless good cause is shown.

The court found that Party A's request were too broadly worded. That its discovery requests asked Party B to divulge how it intended to defend its case and that this information was protectable work-product.  The court surmised that it didn't want to "rewrite [Party A's] interrogatories for them", but suggested that a more "proper discovery requests ask for letters, memoranda, and other documents that contain facts that support the [Party B's] affirmative defenses."  The court also scolded Party B stating that Party B knew "full well what type of information [was] sought and should not feign such sensitivity to opposing counsel's broad discovery." 

This sounds like a scenario that happens all to often. This case provides a nice guide on what type of things its okay to request from opposing counsel to test a dubious affirmative defense, and what type of requests are over-broad.