Opinion
Civil Action 2:06-cv-240.
August 25, 2008
ORDER
This matter is before the Court pursuant to Plaintiff Professionals Direct Insurance Co.'s Motion to Certify Two Questions of State Law to the Ohio Supreme Court (Doc. 71).
The parties have been engaged in a lengthy discovery dispute concerning Plaintiff's obligation to turn over in discovery documents pertaining to its evaluation of certain malpractice insurance claims. Plaintiff has generally contended that the documents sought are protected by attorney-client privilege. Magistrate Judge Abel conducted an in camera review of the disputed documents. On April 11, 2008, he issued a discovery order (Doc. 59), holding that the Ohio Supreme Court's decision in Boone v. Vanliner Insurance Co., 91 Ohio St.3d 209 (2001) compelled the production of certain documents.
Plaintiff has now brought a motion asking this Court to certify two questions of state law to the Ohio Supreme Court. These questions are:
(1) In an action by an insured against an insurance company for bad faith in the processing of an insurance claim, where the insurance company has not denied coverage and continues to defend the insured in the underlying case under a reservation of rights, and where the insured seeks the production of otherwise attorney-client privileged documents from the insurance company, does Boone v. Vanliner Ins. Co. (2001), 91 Ohio St.3d 209, require the trial court to conduct an in camera inspection of the requested documents, and order the production only of those documents which "cast light" on the insured's specific bad faith allegations, and preserve the attorneyclient privilege for the remaining documents.
(2) Does Ohio Rev. Code § 2317.02(A)(2) apply to attorney-client communications contained in documents sought in discovery, or is it limited just to testimony from the subject attorney.
Notwithstanding the fact that the April 11, 2008 Discovery Order ruled on these questions, and that Plaintiff's Objections to the Discovery Order are still pending (Doc. 61), Plaintiff contends that "the certification of the two outstanding questions of state law would allow this Court to determine what documents from PDIC's files, which might otherwise be protected by the attorney-client privilege, are discoverable." (Doc. 71 at 3.)
Rule XVIII of the Rules of Practice of the Supreme Court of Ohio provides that:
Section 1. When a State Law Question May Be Certified The Supreme Court may answer a question of law certified to it by a court of the United States. This rule may be invoked when the certifying court, in a proceeding before it, issues a certification order finding there is a question of Ohio law that may be determinative of the proceeding and for which there is no controlling precedent in the decisions of this Supreme Court.
S. Ct. Prac. R. XVIII, Sec. 1.
Rule XVIII sets forth two requirements for a proper certification order. First, the question certified must be one which "may be determinative of the proceeding". Second, the question certified must be one "for which there is no controlling precedent in the decisions of this Supreme Court". Plaintiff addresses the second requirement by simply asserting, without elaboration, that the two questions presented "appear to be unresolved under Ohio law". Plaintiff does not address the first requirement.
A question which may be determinative of a proceeding is one which would form the basis of the Court's disposition of one or more of a plaintiff's causes of action. Super Sulky, Inc. v. U.S. Trotting Ass `n, 174 F.3d 733, 744 (6th Cir. 1999). While the questions presented by Plaintiff are certainly significant as to what documents Plaintiff is obliged to produce in discovery, they will not themselves be determinative of these proceedings. Defendant's characterization of these issues as "interlocutory discovery questions" is apt (Doc. 81 at 1). The questions presented by Plaintiff, while significant to the particular discovery dispute at issue, will not themselves be determinative of these proceedings. Consequently, they are not certifiable under Ohio Supreme Court Rule XVIII, and this Court declines to issue an order certifying them.
For the foregoing reasons, Plaintiff's Motion to Certify Two Questions of State Law to the Ohio Supreme Court (Doc. 71) is DENIED.