[Cite as J&C Marketing, L.L.C., v. McGinty,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99676

J&C MARKETING, L.L.C.

PLAINTIFF-APPELLEE

vs.

TIMOTHY J. McGINTY, CUYAHOGA COUNTY PROSECUTOR DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CV-784234 and CV-785188

BEFORE: E.A. Gallagher, P.J., Kilbane, J., and McCormack, J.

RELEASED AND JOURNALIZED: October 31, 2013

ATTORNEYS FOR APPELLANT Timothy J. McGinty Cuyahoga County Prosecutor By: Charles E. Hannan, Jr. David Lambert Assistant County Prosecutors Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

J&C Marketing, L.L.C.

Daniel F. Gourash Eric D. Baker Seeley, Savidge, Ebert & Gourash, Co., L.P.A. 26600 Detroit Road, Third Floor Cleveland, OH 44145-2397

ALSO LISTED

AMA Ventures D.B.A. Internet Galaxy

Kent R. Minshall, Jr. 2189 Professor Avenue Suite 100 Cleveland, OH 44113

CTD Entertainment, L.L.C.

Robert G. Mansour 23611 Chagrin Blvd. Suite 270 Beachwood, OH 44122

Cyber Time Café Maple Hts., L.L.C. Kenneth A. Bossin 1392 SOM Center Road Mayfield Heights, OH 44124

Martin S. Delahunty, III Slater & Zurz, L.L.P. One Cascade Plaza Suite 2210 Akron, OH 44308

Cyber World Entertainment, et al.

Charles H. Cooper, Jr. Barton Keyes 2175 Riverside Drive Columbus, OH 43221

Angelo F. Lonardo Mitchell J. Yelsky Yelsky & Lonardo 75 Public Square Suite 800 Cleveland, OH 44113

Cyberspace Westlake, L.L.C., etc.

Erin R. Flanagan 1370 Ontario Street 2000 Standard Building Cleveland, OH 44113

Feelin’ Lucky, L.L.C.

Lawrence J. Kramer, Jr. Jacqueline Kim Roberts J.K. Roberts Law Group, Ltd. 17601 W. 130th Street Suite 4B North Royalton, OH 44133

Jimkat, L.L.C. d.b.a. Cyberspace Café

Jeffry F. Kelleher 1540 Leader Building 526 Superior Avenue Cleveland, OH 44114

Land Of Loot And Piggy Bank

Robert Wakut 3122 West 14th Street Cleveland, OH 44109

LV & Ibnee, L.L.C., et al.

Nate N. Malek Law Office of Nate N. Malek, L.L.C. 29025 Bolingbrook Road Cleveland, OH 44124

Nova’s Internet Sweepstakes Café

Michael L. Nelson 55 Public Square Suite 1500 Cleveland, OH 44103

SOR, L.L.C. d.b.a. Lucky Palms

Karen P. Desanto-Kellogg Robert P. Desanto Desanto & Kellogg, L.L.C. 432 Center Street Ashland, OH 44805

Surf City, L.L.C.

George J. Argie Dominic J. Vitantonio Argie, D’Amico & Vitantonio 6449 Wilson Mills Road Mayfield Village, OH 44143

Surf Shop, L.L.C.

Michael J. O’Shea Ronald A. Annotico Lipson O’Shea Legal Group Beachcliff Market Square 19300 Detroit Road, Suite 202 Rocky River, OH 44116

Winner’s Circle Café, L.L.C.

Antonio Franceschini 2000 Auburn Drive Suite 200 Beachwood, OH 44122

EILEEN A. GALLAGHER, P.J.:

{¶1} Appellant Timothy J. McGinty, Cuyahoga County Prosecutor, appeals from the decision of the Cuyahoga County Court of Common Pleas that ordered the

prosecutor’s office to turn over certain materials and answer interrogatories in a

declaratory judgment action. For the following reasons, we affirm, in part, and reverse, in

part, and remand.

{¶2} This interlocutory appeal is taken from a declaratory judgment action

brought by numerous businesses operating internet sweepstakes cafés within Cuyahoga

County. Appellee J&C Marketing, L.L.C. is one such party who owns internet

sweepstakes cafés within the county. Appellee, among others, received a cease and

desist letter from the Cuyahoga County prosecutor on May 30, 2012, asserting that such

cafés were operating in violation of several Ohio gambling laws, including R.C. 2915.02,

2915.03 and 2915.04. The letter directed the businesses to cease operation and

threatened criminal prosecution for failing to comply.

{¶3} On June 4, 2012, appellee filed a declaratory judgment action against the

prosecutor seeking a declaration that internet sweepstakes cafés are not subject to

prosecution under R.C. Chapter 2915 et seq., and further seeking temporary, preliminary

and permanent injunctive relief.1

{¶4} The question presently before this court is not the legality of internet

sweepstakes cafés in Cuyahoga County. Recently in Cleveland v. Thorne, 8th Dist.

Numerous other internet sweepstakes café businesses operating within 1

Cuyahoga County intervened as plaintiffs in appellee’s declaratory judgment action. Cuyahoga Nos. 98365, 98474, 98503, 98695, 98696, and 98697,

,

, this court upheld the convictions of certain proprietors of “cyber cafés” or

“internet cafés” for sweepstakes ventures that this court found to constitute gambling in

violation of Cleveland Codified Ordinances (“CCO”) 611.02(a)(2), 611.05 (operating a

gambling house) and 625.08 (possession of criminal tools).

{¶5} Our role in the present appeal is not to judge the outcome of this case.

Instead we are faced with a unique discovery dispute. The principal question posed by

this appeal is the extent to which information and records compiled by law enforcement

and a county prosecutor’s office are subject to discovery in a civil action. We are

mindful of the sweeping implications of this case. The prosecutor asserts that appellee

and other targets of the internet sweepstakes cafés possess a mischievous purpose in

bringing the present declaratory judgment action. From the prosecutor’s point of view,

this action is merely a thinly veiled attempt by targets of an ongoing criminal

investigation to preemptively obtain, through civil discovery, investigatory materials

compiled by law enforcement and internal discussions of the prosecutor’s office towards

the purpose of stymying such investigation and hampering any criminal prosecution.

Appellee asserts that pursuant to Peltz v. S. Euclid,

,

(1967), a declaratory judgment action is the appropriate vehicle for testing the application

of Ohio’s gambling laws to its business and that the requested discovery of appellant’s

investigatory results is necessary to proceed with this civil action.

{¶6} Appellee and other sweepstakes cafés who have joined in this action have sought, through discovery, materials relating to the ongoing law enforcement

investigation against the internet sweepstakes cafés in Cuyahoga County including

investigative reports compiled by undercover police officers, email exchanges between

the prosecutor’s office and lead investigators and the identities of parties involved in the

investigation, including experts.

{¶7} Appellant objected to such discovery and, in his three assignments of error,

asserts that the trial court erred in ordering him to produce certain materials and answer

certain interrogatories. Appellant argues that the trial court’s discovery order violates

the law enforcement investigatory privilege, the attorney work-product doctrine and the

deliberative-process privilege. Because appellant’s three assignments of error each

apply in varying and overlapping parts to the discovery sought, we address them together

for ease of discussion.

{¶8} Civ.R. 26(B) provides that parties may obtain discovery on any

unprivileged matter that is relevant to the subject matter involved in the pending action.

Although the information sought need not itself be admissible at trial, it should appear

“reasonably calculated to lead to the discovery of admissible evidence.”

{¶9} Prior to delving into the specific discovery materials sought, we must

appropriately define the law enforcement investigatory privilege, the attorney

work-product doctrine and the deliberative-process privilege within the context of this

unique case. We note that when a discovery issue involves an alleged privilege, it is a

question of law that we review de novo. Ward v. Summa Health Sys.,

,

,

, ¶ 13.

I. The Law Enforcement Investigatory Privilege

{¶10} The prosecutor contends that discovery of nearly all of the contested

material is protected by the law enforcement investigatory privilege. The prosecutor

primarily relies upon cases establishing the law enforcement investigatory privilege under

federal law and laws of other states. We find reliance on these cases unnecessary. To

understand this privilege under Ohio law, we must first consider R.C. 149.43 that,

although not applicable in the present instance, provides important context to our

understanding of the claimed privilege.

{¶11} R.C. 149.43 excludes confidential law enforcement investigatory records

from the definition of “public records” that must be made available for inspection. R.C.

149.43(A)(2) provides:

(2) “Confidential law enforcement investigatory record” means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source’s or witness’s identity;

(c) Specific confidential investigatory techniques or procedures or specific investigatory work product; (d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.

{¶12} Although records that qualify as confidential law enforcement investigatory

records under R.C. 149.43(A)(2) are not subject to public disclosure pursuant to the

statute, the Ohio Supreme Court, in Henneman v. Toledo,

,

(1988), held that R.C. 149.43 operates only to exempt confidential law enforcement

investigatory records from the requirement of availability to the general public and does

not protect such records from a proper discovery request in the course of civil litigation,

provided that such records are otherwise discoverable.

{¶13} In Henneman, the Ohio Supreme Court recognized that a qualified

privilege exists for information that was compiled in the course of a police internal affairs

investigation in the context of civil discovery. The court stated:

[W]e recognize that the public has an important interest in the confidentiality of information compiled in the course of police internal investigations. In many instances, disclosure of such information may work to undermine investigatory processes by discouraging persons with knowledge from coming forward or by revealing the identities of confidential sources. There may very well be an overriding need in particular cases for protecting the identities of members of the police force or of the general public who come forward with information about alleged police abuses. * * * Another equally important interest may exist in some cases: the need for concealing the identities of informants or citizens who participate in internal investigations.

.

{¶14} The Henneman court concluded that:

[R]ecords and information compiled by an internal affairs division of a police department are subject to discovery in civil litigation arising out of alleged police misconduct if, upon an in camera inspection, the trial court determines that the requesting party’s need for the material outweighs the public interest in the confidentiality of such information. Of course, the request for such information is still subject to the normal standards of discovery. For example, if the files contain privileged medical records or if the request is vague or burdensome, a properly delineated protective order may be issued upon motion. But we reject the notion that an absolute privilege automatically protects internal investigation reports from a legitimate request for discovery.

.

{¶15} Since the Henneman decision, the rule established in that case has been

extended to apply the Henneman balancing test to a school board’s claim that its

discussions held in executive session were privileged from discovery. Springfield Local

School Dist. Bd. of Edn. v. Ohio Assn. Pub. School Emp., Local 530,

,

(9th Dist. 1995), and the confidentiality of information

about applicants and recipients of Medicaid. Wessell Generations, Inc. v. Bonnifield,

,

,

(9th Dist.).

{¶16} Furthermore, in State ex rel. Multimedia, Inc. v. Whalen,

,

(1990), the Ohio Supreme Court held that Henneman extended

beyond protecting internal affairs documents but was applicable to “determine whether a

litigant’s right to discovery outweighs the public interest in nondisclosure of an ongoing

investigation.”

. The court stated that the factors recognized in the leading

federal case on the investigatory privilege, Frankenhauser v. Rizzo,

(E.D.Pa. 1973), had been adopted as part of the Henneman test. Id. at 41. The Frankenhauser factors include:

(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff’s case.

.

{¶17} Although the Supreme Court has not addressed a case postured precisely

as the present case, we find the privilege established in Henneman to be applicable

because the same concerns leading to the adoption of the privilege in that case exist in

this case. We, therefore, apply the balancing test of Henneman to the materials the

appellant claims are protected from discovery by the law enforcement investigatory

privilege.2

II. The Attorney Work-product Privilege

{¶18} Attorney work product in Ohio is governed by Civ.R. 26(B)(3), which

provides in relevant part: “a party may obtain discovery or documents and tangible

We apply the Henneman balancing test with guidance from the 2

Frankenhauser factors that we find useful to the Henneman analysis. things prepared in anticipation of litigation or for trial by or for another party or that

party’s representative * * * only upon a showing of good cause therefor * * *.”

{¶19} The Ohio Supreme Court has addressed the standard of disclosure of work

product. “Attorney work product, including but not limited to mental impressions,

theories, and legal conclusions, may be discovered upon a showing of good cause if it is

directly at issue in the case, the need for the information is compelling, and the evidence

cannot be obtained elsewhere.” Squire, Sanders & Dempsey v. Givaudan Flavors

Corp.,

,

,

, paragraph two of the

syllabus. The protection for intangible work product exists because “[o]therwise,

attorneys’ files would be protected from discovery, but attorneys themselves would have

no work product objection to depositions.” Id. at ¶ 58, quoting In re Seagate

Technology, L.L.C.,

(Fed.Cir. 2007).

{¶20} The Ohio Supreme Court has explained that “the determination of

whether materials are protected by the work-product doctrine and the determination of

‘good cause’ under Civ.R. 26(B)(3), are ‘discretionary determinations to be made by the

trial court.’” Sutton v. Stevens Painton Corp.,

,

,

(8th Dist.), quoting State ex rel. Greater Cleveland Regional Transit

Auth. v. Guzzo,

,

(1983). Discretionary

decisions are reviewed under an abuse of discretion standard of review.

It is an

abuse of discretion if the court’s ruling is “unreasonable, arbitrary, or unconscionable.”

Blakemore v. Blakemore,

,

(1983). III. The Deliberative-Process Privilege

{¶21} Finally, the prosecutor asserts that the trial court’s discovery orders intrude

improperly into internal deliberations and prosecutorial discretion and, as such, violate

the deliberative-process privilege.

{¶22} In State ex rel. Dann v. Taft,

,

,

, the Ohio Supreme Court described the deliberative-process privilege as

follows:

[I]t allows the government to withhold documents and other materials that would reveal “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Predecisional and deliberative materials are protected, but documents that merely state or explain a decision that has already been made or contain purely factual information are not. The privilege extends beyond the chief executive officer of a governmental unit such as a president or governor. This category of executive privilege is grounded in judicial recognition of a “valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” (Citations omitted.)

at ¶ 34

{¶23} The deliberative-process privilege has been rarely recognized under Ohio

law, and we are unaware of any case in Ohio applying the privilege to a county

prosecutor. We note that most, if not all, of the materials the privilege would

conceivably protect in this case would already be protected under the law enforcement

investigatory privilege and the attorney work-product doctrine, rendering reliance on the

deliberative-process somewhat redundant and unnecessary. Nonetheless, appellee

asserts that the materials they seek in discovery are purely factual in nature rendering the deliberative-process privilege inapplicable.

{¶24} Having established the various privileges and doctrines that appellant has

invoked, we proceed to examine their application to the contested materials sought in

discovery. We begin with the list of documents that the trial court marked “Y,”

standing for “yes, the document is to be produced.”

{¶25} We affirm the trial court’s order to produce the police reports containing

factual information gathered in the undercover investigation of the internet sweepstakes

cafés within Cuyahoga County. These reports are directly relevant to the alleged

conduct of the internet sweepstakes cafés involved in this case because any factual

disputes regarding the nature of their business must necessarily be resolved prior to the

ultimate resolution of the legal question at the heart of this declaratory judgment action.

Specifically items with the following “bates” numbers are to be produced: #001-003,

#005-252 and #254-307.

{¶26} The trial court’s order to produce items #004 and #253 is reversed.

These materials contain primarily internal communications or investigative decisions and

lack the factual content that the other reports contain. We find these materials lacking

in relevant information to this civil action and, as such, are precluded from discovery

pursuant to the law enforcement investigatory privilege.

{¶27} The trial court shall redact the names of the undercover investigators from

the police reports ordered to be produced. However, to the extent that appellant intends

to rely on facts in any particular report or a factual account of a particular investigator, the appellant is obligated to disclose such investigator’s name consistent with our holding

on appellee’s interrogatories regarding witnesses appellant intends to call at trial. See,

e.g., State v. Bragg, 8th Dist. Cuyahoga No. 58859,

(June

27, 1991).

{¶28} We next consider a series of emails between the Cuyahoga County

prosecutor involved with the investigation and a lead investigator on the case. These

emails contain investigatory decisions, procedural discussions and exchanges of legal

research and opinion. For the most part, the emails can be described as internal

communications regarding how to proceed with the investigation. We are considerably

reluctant to recognize a legal proposition whereby an individual or business involved in a

criminal investigation could acquire the internal email discussions of a prosecutor by way

of discovery in a preemptive civil action. Appellee argues that it is entitled to the

thought process and legal theories of appellant in regards to the alleged illegality of

internet sweepstakes cafés within Cuyahoga County. We are not aware of any authority

for the proposition that appellant is obligated to conduct appellee’s legal research for it.

To the extent that appellee seeks a legal analysis applying a gambling law to an internet

sweepstakes café, we direct appellee to our decision in Thorne.

{¶29} We find that the vast majority of the emails are protected by the law

enforcement investigatory privilege, and because they are completely lacking in factual

content relevant to the present dispute, we hold that they are not subject to discovery.

Even if such emails were not protected by the law enforcement investigatory privilege, we note that a significant number of such emails would also qualify as attorney work

product.

{¶30} We reverse the trial court’s order to produce the email items with the

following “bates” numbers: 308, 315, 316, 318-324, 326, 330-332, 335-342, 344, 345,

347-354, 356-359, 361-363, 365-367, 369, 370, 379-382, 392-394, 419, 428, 434, 439,

442, 450, 451, 456-458, 461, 462, 467, 468, 473, 474, 477, 478, 484, 487-491, 493, 496,

498, 499, 504, 506, 507, 511-513, 520-522, 532, 534, 535, 539, 540, 559, 569, and

591-594. We affirm the trial court’s order to produce the emails with the following

“bates” numbers: 373-378, 486, 497, 524, 548, 561, 595.

{¶31} Finally, with regard to the interrogatories that the trial court ordered

appellant to answer, we find that a significant number pose questions that are not relevant

to the underlying declaratory action and unnecessarily intrude upon the investigative

process. Some confusion exists as to the precise interrogatories the trial court’s order

compelled the appellant to answer. The order references both interrogatories and

amended interrogatories. Both of the motions to compel filed by appellee and plaintiffs,

Cyber Oasis, Page-Jaq and New Heights, provide only amended interrogatories as

attachments. To eliminate any confusion, we confine our review to appellee’s amended

set of interrogatories and the interrogatories of Tel-Connect. To the extent that any

other interrogatories remain, the trial court shall order appellant to answer them

consistent with the holding of this opinion.

{¶32} Regarding the amended interrogatories of appellee, the trial court’s order is affirmed as to interrogatories 1 through 4 and 24 through 28. The trial court’s order is

reversed as to interrogatories 5 through 24 that we find protected pursuant to the law

enforcement investigatory privilege and the attorney work-product doctrine. In regards

to the Tel-Connect interrogatories, the trial court’s order is affirmed as to interrogatories

1 through 4, 10, 11, 13, 14, 20 and 23. The trial court’s order is reversed as to

interrogatories 5 through 8, 12, 15 through 19 and 21.

{¶33} Appellant’s assignments of error are sustained, in part, and overruled, in

part.

{¶34} The judgment of the trial court is affirmed, in part, reversed, in part, and the

case is remanded for further proceedings consistent with this opinion.

It is ordered that appellant 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.

EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, J., and TIM McCORMACK, J., CONCUR