IN THE SUPREME COURT OF OHIO

ANTHONY J. IQRTOS, ET AL, ) CASE NO.® 8-nu 67 9) (On Appeal from Seventh District of

Plaintiffs-Appellants ) Court of Appeals Case No. 07-MA-97)

v. )

)NATIONWIDE INSURANCE CO., )

)Defendant-Appellee.

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS, ANTHONY J.KIRTOS, VIRGINIA KULIK, AND ATTORNEY ANGELA MIKULKA

Attorney for Appel lants-Plainti ffs

RHONDA DAVIS AND ASSOCIAI'ES, LLCRhonda Gail Davis #0063029159 South Main StreetSuite 1 l l l, Key BuildingAkron, Ohio 44308Telephone: (330) 374-0700Facsimile: (330) 294-0101Email: RhDavis3205&etlink.net

Attomey for Appellee

PFAU, PFAU, AND MARANDOJohn C. Pfau #0006470John A. AmsP.O. Box 9070Youngstown, Ohio 44513Telephone: (330) 702-9700Facsimile: (330) 702-9704Email: ppm@ppmlegal.com

w,

FAPR 10 2008

CLERK OF COURTSUPREME COURl' C7F OHIO

TABLE OF CONTENTS

Explanation of Why This Case is of Public or Great General Interest 1

Statement of the Case and Facts

PROPOSITION OF LAW ONE: In a case involving a denial of aprotective order on attomey-client privilege and similar grounds, thestandard of review on appeal is de novo.

PROPOSITON OF LAW TWO: Where a party seeks to depose anadverse party's attorney, who is active and has no knowledge other thanthrough representation of that client, a trial court should hold a hearing onthat attorney's motion for protective order on the grounds of attomey-client privilege. If the party seeks to depose the adverse party's attorney,the Court shall determine the necessity of the deposition and any otherlimitations regarding the matters to be discovered.

PROPOSITION OF LAW THREE: When a party seeks to depose anopposing counsel to annoy, embarrass, oppress, harass and intimidate thatlawyer in her representation in this and other cases and appears to beseeking disqualification of that lawyer, a trial court must issue a protectiveorder, after addressing the matter in a hearing.

Conclusion

7

8

12

15

Certificate of Service 15

Appendix ExhibitJournal Entry (7°i Dist. Feb. 25, 2008) 1Opinion (70s Dist. Feb. 25, 2008) 2Judgment Entry (Mahoning County Ct. C. P. May 16, 2007) 3

41

EXPLANATION OF WHY THIS CASE IS OFPUBLIC OR GREAT GENERAL INTEREST

The role of the courts in the preservation of the attorney-client privilege and prohibiting

one party's unfair advantage and intimidation of the opposition is well-known. Judges must

carefully review the facts and allegations and determine when protections should be mandated

and even monitored. The courts must hold necessary hearings. This case involves one party's

attempt to slow litigation and intimidate an attomey from pursuing actions against it, by

deposing her about information the company contains in its own records or known to her clients,

information which is not at issue, and most importantly, is probably subject to attorney-client

privilege and other privileges. All without a hearing and nothing more than a one-line order

from the trial court, denying the motion for protective order and its many bases.

A. Need for Some Guidelines in the Courts in Ohio

First and most important, the trial courts' handling of attorney-client privilege matters

arising out of deposition requests of attorneys is diverse and inconsistent. This Court should

delineate its expectations and requirements so that all the litigants are treated fairly and equally,

regardless of their court location. Some courts do not consider attorney-client privilege issues

until the deposition questions are asked and.the privilege asserted to each question. See, e.g.,

Riggs v. Richcrrd (5th Dist. Jan. 22, 2007), 2007-Ohio-490 (lawyer was defendant). Others issue

blanket grants of protective orders prior,to any deposition questioning. Some request a detailed

listing of questions and information that will be asked at the deposition. See, e.g., Provident

Bank v. Spagnola (Feb. 9, 2006), 2006 -Ohio-566, at paras. 30, 35-37. Some quash subpoenas

when the potential deponent-attorney cannot provide testimony beyond that which is subject to

the attorney-client privilege. See, e.g., Allegro Realty Advisers, Ltd v. Orion As.socs. (8°i Dist.

Sept. 7, 2006), 2006-Ohio-4588 (lawyer participated in negotiations; claim was breach of

contract). Where some questions arise as to what type of privilege applies, some courts may

have a hearing before to help determine which is applicable and to what area. See Miller v.

Bassett (8`h Dist. July 13, 2006), 2006rOhio-3590. What is consistent is that the courts are not

consistent, even within a particular appellate district, in handling the procedural aspects of a

protective order where privilege is argued'

B. Immediate Need for Court Intervention Due to Threat of Many More Depositions ofan AttorneyIn this case, Attorney Angela Mikulka often litigates UMIUIM and bad faith claims

against Nationwide. She has represented her clients well. After the trial court ruling,

Nationwide has notified her that they will seek to depose her in every case where she has

represented a client in an underlying tort claim and then pursued a bad faith claim against

Nationwide. This Court should immediately grant jurisdiction so that it can review this new

tactic in lawyering.

C. Impact on Professionalism and Ethics of Lawyers

This Court has recently prompted lawyers to behave more professionally, civilly, and

ethically. The emphasis on professional treatment in and out of the courts is well-placed by this

Court. We have new governance rules. We have additional legal education requirements for

professionalism. This Court has constantly encouraged the profession to right itself, through the

day to day activities of the lawyers. Threatening lawyers in cases with depositions and putting

them in ethical dilemmas, where none existed, is the gamesmanship and unfair advantage that

has no place in the legal profession.

D. Rami6cations on Many Business and Other Cases

The ramifications of this practice rkaches far beyond the bad faith context and will be

extended to virtually every case involving contract and purchase negotiations. That means a

2

lawyer, representing a client in a negotiation, would be a witness in any subsequent litigation.

Real estate and business actions, in particular, would be bogged down with this attempt at

gaining advantage. Particularly good advocates or negotiators may be disqualified from working

on cases that were not an issue before this appellate case. The very rationale for deposing

Mikulka in this case could, and most definitely would, be used in all other types of cases and

claims including claims against tortfeasors, UM/UIM cases, consumer protection cases,

prejudgment interest matters, and others. Counsel for plaintiffs in virtually every UM/UIM case

have likely attempted to negotiate settlement prior to and during the action.

E. Need for a Message

The message of the Kirtos case is clear to those who want to abuse the system. A lawyer

can be compelled to a deposition, without a hearing on the motion for protective order and with

no explanation or rationale by the trial court. A simple, one-line, "ten words or less" judgment

entry from the trial court is sufficient.

Establishing this route to eliminate adversarial counsel and shortcutting certain

procedural safeguards should not be undertaken by this Court. The trial court's ruling which

denies Mikulka's Motion for Protective Order should be reversed and the sanctity of acting

counsel, free from discovery threats, should be preserved.

4

3

STATEMENT OF CASE AND FACTS

A. Underlvina Claims

On January 21, 1997, Plaint i ffs- Appellants, Anthony Kirtos and Virginia Kulik, were

injured in a motor vehicle collision caused by the sole negligence of Robert J. Camardo. Both

Kulik and Camardo are Nationwide policyholders. Attorney Angela Mikulka represented Kirtos

and Kulik in the Med Pay and tort claims.

Kirtos and Kulik asserted medical payments ["Med Pay"] claims under the Kirtos

Nationwide auto insurance policy. Nationwide employee, Cynthia Wolter, handled the Med Pay

claims and Nationwide employee, Terri LeFever, handled the majority of the tortfeasor claim.

On March 20, 1997, Kirtos and Kulik timely submitted fully-executed "PROOF OF

CLAIM AND SUBROGATION ASSIGNMENT" forms, along with related medical records,

reports and expenses to date, to Nationwide. Nationwide's "PROOF OF CLAIM AND

SUBROGATION ASSIGNMENT" effected immediate and complete assignment and transfer to

it of all claims of its insureds against any person, persons, firm or corporation arising from or

connected with such loss or damage to the extent of Med Pay payments. This Assignment

required the insureds, Kirtos and Kulik, to assist the Company (Nationwide) in the prosecution of

its interests for recovery. In accordance with the provisions of the Assignment, Nationwide

Subrogation Unit notified, by a letter, the Nationwide Tort-Bodily Injury Unit of the subrogation

claim. It demanded repayment from Nationwide to Nationwide.

Almost 2 years later, on December 1, 1998, Nationwide issued the Med Pay checks.

In the tort case, Nationwide disputed the relationship of Kulik's seatbelt/breast implant

injuries to the collision. On March 9, 2004, the deposition of Kulik's plastic surgeon, Dr. Yau

Too Chiu, Jr., established proximate causation of the seatbelt/implant injuries to the collision.

4

On March 27, 2002, Kulik sent a request of additional Med Pay monies for the implant injury

treatment to LeFever, the newly-assigned Nationwide claims adjuster. Since LeFever assumed

responsibility for the tort claims only, she "hand-carried" the supplemental that request to the

Med Pay adjuster. To date, Nationwide has not paid Kulik's additional Med Pay claim.

The parties reached settlement, under the Camardo policy prior to trial, for sums

represented to be paid in addition to prior Med Pay payments. Nationwide issued checks and

releases in correct amounts of the tort settlement, but did not include itself as subrogee on

settlement checks, nor did it include release language addressing its subrogation/assignment

interest. Afterwards, Nationwide's Subrogation Unit refused to waive subrogation; it demanded

full repayment of Med Pay amounts from the settlement amotints it issued to Kirtos and Kulik.

B. Subseouent Lawsuit / Summary Judgment/ Disgualification / Protective Order Denial

Kulik and Kirtos filed this bad faith and breach of contract lawsuit against Nationwide in

the Mahoning County Common Pleas Court. Attorney Angela Mikulka represents them in this

action. The Trial Court awarded summary judgment for Kirtos and Kulik against Nationwide on

the basis that as the sole real party in interest pursuant to the Assignment of Rights, Nationwide

failed to prosecute its claims against Camardo. The Trial Court did not grant summary judgment

on the issue of additional medical payments coverage due Kulik, finding there were genuine

issues of material fact regarding the settlement. The Trial Court denied Nationwide's cross-

motion for Summary Judgment.

Kirtos and Kulik never contended that tort claims (against Camardo) settlement checks

and releases were incorrect. Rather, they maintain that the checks and releases were correct as

issued by Nationwide. The only issue is whether Kulik was entitled to the additional Med Pay

benefits submitted before settlement with Camardo.

.11lationwide actively tried to remove Mikulka from the case. First, it filed a Motion to

Disqualify Mikulka as attorney for Kirtos and Kulik. Although Mikulka opposed it, the Trial

Court still did not decide the issue or enter an order. Later, Nationwide issued a Notice of

Deposition (not a subpoena) to Angela J. Mikulka, Kirtos' and Kulik's attorney, claiming she

was a material witness. In the trial court, Nationwide proffered no such basis for such position,

nor did it show what testimony or information was being sought from Mikulka. On April 11,

2007, Mikulka filed a motion for protective order, since she never identified herself as a witness,

never claimed to possess any knowledge admissible at trial, and on the basis that attorney-client

privileges and work product protections applied. Mikulka, at all times, acted solely as advocate

and never had any personal interest in the cases. Nationwide opposed it, citing no legal authority

permitting them to depose Mikulka or to oppose her protective order, but solely relied on three

affidavits by Mikulka which addressed the issues of true and exact copies of documents for the

trial court's review. Three days after Mikulka filed her Reply Brief, on May 11, 2007, the trial

court filed its one-line Judgment Entry, denying Mikulka's Motion for Protective Order.

C. Trial Court Denial of Motion for Protective Order Affirmed in the Appellate Court

On June 13, 2007, Mikulka, represented by her own counsel, filed her Notice of Appeal

in the Seventh District Court of Appeals. Nationwide moved to dismiss the appeal; Mikulka

opposed it. The appellate court overruled/denied the Motion to Dismiss. The parties submitted

appellate briefs and appeared at oral argument. On February 25, 2008, the Seventh District

Court of Appeals affirmed the trial court's denial of the Motion for Protective Order, in

substantive part. '

This appeal seeks reversal of the trial court's denial of the Motion for Protective Order.

6

ARGUMENT AND LAW

PROPOSITION OF LAW ONE: In a case involving a denial of a protective order onattorney-client privilege and similar grounds, the standard of review on appeal is de novo.

Nationwide argues that an abuse of discretion standard is required. Mikulka, Kirtos, and

Kulik argue that, in light of the circumstances, an abuse of discretion standard should not apply

here. Rather, they argue that this matter is ripe for de novo review. The issues, although they

are related to discovery matters over which a court generally has a wide range of discretion,

primarily concern the application of the attomey-client privilege and disqualification of counsel.

See State ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55(discovery issues generally

subject to abuse of discretion standard on appeal). Where the trial court has misstated the law or

applied incorrect law, and gives rise to purely legal question, appellate review is de novo.

Sc•haffer v. OhioHealth Corp. (10th Dist. 2004), No. 03AP -102, 2004-Ohio-63, at 16 (citations

omitted).

Even if this Court adopts an abuse of discretion standard, this Court should find in favor

of Mikulka on the denial of the Motion for Protective Order. Mikulka recognizes that this Court

held that a trial court's decision whether to grant or deny the protective order is within that

court's discretion, and will not be reversed absent an abuse of that discretion. Ruwe v. Bd of

Springfield 7'wp. `!'rus•tees (1987), 29 Ohio St.3d 59, 61. However, even with its broad discretion

in discovery matters, a trial court must have some valid basis for exercising that discretion. See

Thompson v. Curtin (10`" Dist. May 15, 1997), No. 96-APE09-1187, unreported. With the trial

court's one-line decision, overruling Mikulka's Motion for Protective Order, the parties and this

Court are forced into the unusual position of not knowing what basis or bases the trial court had

for denying the motion. (This issue is even more confusing in light of the trial court's failure

(thus far) to rule on Nationwide's Motion to Disqualify.)

7

PROPOSITON OF LAW TWO: Where a party seeks to depose an adverse party'sattorney, who is active and has no knowledge other than through representation of thatclient, a trial court should hold a hearing on that attorney's motion for protective order onthe grounds of attorney-client privilege. If the party seeks to depose the adverse party'sattorney, the Court shall determine the necessity of the deposition and any other limitationsregarding the matters to be discovered.

A. Ohio Law on Attorney-Client Privilege

The Ohio Attorney-Client Privilege is statutory: Ohio Revised Code section 2317.02(A).

§ 2317.02. Privileged communicationsThe following persons shall not testify in certain respects:

(A) (1) An attorney, concerning a commnnication made to the attorney by a c•lientin that relation or ihe attorney.s advice to a client, except that the attorney maytestify by express consent of the client or, if the client is deceased, by the express

consent of the surviving spouse or the executor or adminislralor of the esicrte of thedeceased client. However, if the client voluntarily testifies or is deemed by section2151.421 [2151.42.1J of !he Revised Code to have waived any leslimonial privilegeunder this division, the attorney may be compelled to lestify on the same s-nbject:

The testimonial privilege established under this division does not applyconcerning a communication between a client who has since died and the deceasedclient's attorney if the communication is relevant to a dispute between parties whoclaim through that deceased client, regardless of whether the claims are by testate orintestate succession or by inter vivos transaction, and the dispute addresses thecompetency of the deceased client when the deceased client executed a documentthat is the basis of the dispute or whether the deceased client was a victim of fraud,undue influence, or duress when the deceased client executed a document that is thebasis of the dispute.

(2) An attorney, concerning a communication made to the attorney by a client inthat relationship or the attorney's advice to a client, except that if the client is aninsurance company, the attorney may be compelled to testify, subject to an in camerainspection by a court, about communications made by the client to the attorney or bythe attorney to the client that are related to the attorney's aiding or furthering anongoing or future commission of bad faith by the client, if the party seekingdisclosure of the communications has made a prima facie showing of bad faith,fraud, or criminal misconduct by the client.

Ohio Rev. Code sec. 2317.02(A) ( emphasis added). (Section 2 added by SB 117 in 2006).

Pursuant to State v. Mc•Dermott (1995), 72 Ohio St. 3d 570, 1995-Ohio- 80 (followed by Jackson

v. Greger (2006), 110 Ohio St. 3d 488, 2006-Ohio-4969, at syll. para. 1), the above statutory

8

privilege contains the exclusive means by which privileged communications directly between an

attorney and a client can be waived.

B. No Waiver of Privileae

Mikulka's clients did not waive the privileges and Mikulka has not inadvertently waived

them herself. Neither she nor the client listed her as a witness in the matter. Mikulka did not

submit an affidavit proffering her knowledge of the merits of the case. See 155 Nor1h High, Ltd

v. Crnc•rnnati Ins. Co. (1995), 72 Ohio St. 3d 423. Her only involvement was in representing her

clients in the underlying matters and submitting briefaftidavits for the purpose of noting

important documents from the underlying case. Therefore, there is no waiver pursuant to Ohio

Revised Code section 2317.02(A)(1).

Mikulka is merely the attorney for the Kirtos and Kulik. She has no claim arising out of

family or other relationship which would give rise to the claims against Nationwide. She has no

conflict which arises and robs her of the attorney-client privilege in this discovery matter. See

Mentor Lagoons v. leagrie (11`s Dist. 1991), 71 Ohio App. 3d 719 (attorney for apartment

complex was also officer/shareholder with fiduciary obligations-had a conflict in

representation); Jackson v. Bellomy (10t1i Dist. 1995), 105 Ohio App. 3d 341 (attorney husband

represented wife in property line dispute with their neighbors; attorney husband's acts formed

basis of the counterclaim).

Further, Nationwide has not proven any "aiding or furthering an ongoing or future

commission of bad faith by the client" involving Mikulka or her clients. Further, even if that

were the case, the trial court is required to hold an in camera inspection to address the privilege

issues. Therefore, no waiver of the privilege is found in newly revised section 2317.02A(2).

C. No Material Witness Exception

Nationwide argued that, since the attorney-client privilege and work product privileges

are waived as to the insurance company information regarding claims handling, that Nationwide

should be able to inquire of certain settlement and/or other matters regarding Kirtos, Kulik, and

Mikulka's handling in the underlying case. This "what is good for the goose is good for the

gander" argument is misplaced. This Court carefully addressed and specifically carved out the

exception to the attorney-client privilege and work product privilege regarding the insurance

company's handling of the insurance matters. In Boone v. Vanliner Insurance ('o. (2001), 91

Ohio St. 3d 209 and Moskovrtz v. Mount Sinai Medical ('enter (1994), 69 Ohio St. 3d 368, this

Court found that, due to the insurance company's lack of good faith in handling or settling the

claims, the attorney-client and work product privileges were not worth of protection. The

insurance company has a duty of good faith in handling these issues specifically under Ohio law.

interestingly, Nationwide made no showing to the courts below of the testimony it

sought. Nationwide also has not shown that the evidence sought is exclusively in Mikulka's

anticipated testimony; it has not shown that it cannot be solicited from any other source.

Recently, the Eighth District Court of Appeals considered a similar issue, albeit in a

disqualification context. See Quiros v. Morales (8`s Dist. Oct. 11, 2007), 2007-Ohio-5442,

unreported. The court considered the appropriateness of a motion to disqualify an active

attorney on the basis that the attorney was a material witness. Citing Mentor Lagoon, Inc. v.

Teague (1991), 71 Ohio App. 3d 719, 724, the court stated that "[d]isqualification of any

attorney is a drastic measure, which should^not be imposed unless absolutely necessary."

Quiros, at para. 15. (Nationwide's prior Motion to Disqualify is integral with its attempt to

10

depose Mikulka, as either or both will result in her inability to remain as Kirtos/Kulik's counsel

in this bad faith case.)

The Quirrxs Court also looked to the fact than any testimony the active attomey might

supply could be obtained from other witnesses. Quiros, at para. 17 (citing Wasserman,

Wassermann, Bryan & Landry v. 1he Midwestern Indemnity Co. (6°i Dist. Nova. 21, 1986). Case

No. L-86-135 (reversing counsel's disqualification when attorney's testimony could be proven

by other witnesses) & Sneary v. Baly (3rd Dist. Aug. 14, 1996), No. 1-96-13 (reversed attomey's

disqualification when attorney's testimony was not necessary).

D. Need for a Hearinss and No Blanket Denial

Blanket grants or denials in discovery are often recognized as an abuse of discretion. In

Miller v. Bassett (6`h Dist. July 13, 2006), 2006-Ohio-3590, unreported, a trial court failed to

hold an evidentiary hearing regarding privileged matters where different bases for the privilege

were argued. On appeal, the Sixth District Court of Appeals held:

....Bassett requested information that could arguably fall under the umbrella ofeither opinion work product or ordinary fact work product. The possibility of twodiffering forms of protection under the attorney-client privilege necessitate anevidentiary hearing. Therefore, any blanket grant compelling discovery was anabuse of discretion as the trial court must first conduct a hearing to determine thenature of the privilege.

Id. at para. 16.

Further, trial courts address privilege matters in hearings so that the application of the

privilege can be determined on a case-by-case basis. It is here where the court can assess any

need for protective orders and any limitations so that the privilege is preserved.

Here, not only did the trial court not hold an evidentiary hearing, but the court's order

does not specify its rationale for its order. The one line order indicates no rationale for the

court's reasoning. It leaves many questions regarding whether due consideration was given to

11

Mikulka's arguments and the facts relating to a need for the order. Mikulka set forth many bases

for the protective order, including various privilege issues, which were not opposed by

Nationwide with any detailed evidence of need, limitations on questions, and efforts to obtain the

information elsewhere. A hearing would have permitted the parties to present detailed evidence

and information so that the trial court could have determined limitations or even the need for the

deposition.

Further, Nationwide fails to see the importance and significance of the distinction

between a notice and a subpoena and the difficult position in which Mikulka was placed.

Mikulka could not interpret, from the one-line court order whether she had to attend the

deposition. The Court denied her motion for protective order but yet it did not compel her to

attend a noticed deposition. This ambiguity necessitated clarification. This ambiguity is not

what litigants expect from a trial court when it addresses matters of privilege and related legal

issues. This Court should hold that the trial court's failure to address ambiguities of its order

also amounts to an abuse of discretion.

In light of the procedural and evidentiary problems, Mikulka has been forced to incur

extraordinary expenses in determining whether Nationwide could take her deposition, hiring her

own counsel for this appeal, hire her personal counsel for the deposition, and Kulik and Kirtos

would have to hire other counsel to represent their interests at the deposition.

PROPOSITION OF LAW THREE: When a party seeks to depose an opposing counsel toannoy, embarrass, oppress, harass and intimidate that lawyer in her representation in thisand other cases and appears to be seeking disqualification of that lawyer, a trial court mustissue a protective order, after addressing the matter in a hearing.

d.

12

Mikulka argues that Nationwide has an ulterior purpose in attempting to depose her in the

Kirtos and Kulik case. It is part of Nationwide's continuing efforts to pressure her out of this

and other cases against the company.

A. Prior Failed Attempt to Disaualify Mikulka

Nationwide previously formally moved the trial court to disqualify Mikulka, without

establishing that her proposed testimony would be prejudicial to Kirtos/Kulik, or that the

information sought from Mikulka could not be proven by other witnesses.

B. No Real Need for the Information from Mikulka

ln this case, the only issue regarding settlement checks was whether Nationwide was

legally entitled to recover its subrogation interests from the said settlement amounts. However,

the trial court decided, by granting the Kirtos/Kulik Motion for Summary Judgment in the

underlying case, that Nationwide could not recover its subrogation amount.

The fact that Kirtos/Kulik concede that the checks and releases were issued in the correct

amounts, defeats Nationwide's arguments since there is no justiciable controversy regarding the

amounts of Kirtos/Kulik's settlements with the tortfeasor. Nationwide's own claims file

contains sufficient evidence on the issue of additional medical payments benefits due to Kulik.

There is no evidence that Mikulka can provide beyond the documentation already contained in

Nationwide's own claims file. In fact, not only was Nationwide a party to the negotiations but it

has at least two of its own representatives who can provide the information. Further, Nationwide

did not attempt less intrusive means of gaining its information. It sent no admission requests,

interrogatories, or proposed stipulations to Kirtos/Kulik for discussion of these issues short of

deposing Mikulka. a

I3

On appeal, Nationwide argued that they did not seek the deposition to obtain information

protected by the attorney-client privilege but merely to obtain information regarding her

negotiations and/or employees in prior litigation since she was the only negotiator for the

Kirtos/Kulik. They argue that Mikulka made herself a material witness.

C. Advantages to Nationwide and Disadvantases to Mikulka

It is obvious that when the trial court did not readily and quickly issue an order of

disqualification of Mikulka, Nationwide took its own measures to force the issue. This attempt

to depose Mikulka has certainly diverted her attention, to some degree, from the bad faith claims

and slowed the case down to a standstill. Approximately one year has been devoted to this

discovery issue, bringing the Kirtos and Kulik's claims to a standstill in the trial court.

By way of background, this is not the only case involving Nationwide as an insurance

bad faith defendant and Mikulka represents plaintiffs in the same case. Even in this case,

Nationwide.filed a motion with the trial court to have Mikulka disqualified from representing

Kirtos and Kulik. The trial court never ruled on the motion, even though it remained pending for

several months.

This annoyance and oppression is a form of harassment and attomey intimidation that

should not be rewarded by this Court. If Nationwide wins this issue, creative lawyers will be

looking for any way possible to remove opposing counsel or to slow them down with similar

types of discovery motions/notices.

CONCLUS[ON

Pursuant to Rule III, Section 6(C) of the Rules of Practice of the Supreme Court of Ohio,

the Appellants request that this Court granL,jurisdiction to hear the case on the merits, accepting

the appeal, and order the issues in the case to be briefed and heard on the merits. Further, the

14

Appellants ask that this Court overrule the trial court and grant the Appellants a protective order

on the grounds of attorney-client privilege, precluding Nationwide from seeking discovery from

Attorney Angela Mikulka.

RHONDA DAVIS & ASSOCIATES LLCAttorney for Appellants

Rhonda Gail Davis #0063029159 South High StreetSuite 1111, Key BuildingAkron, Ohio 44308(330) 374-0700; Fax- (330) 294-0101

CERTIFICATE OF SERVICECopy of the foregoing was mailed to John C. Pfau, Esq. & John A. Ams, Esq. of Pfau,

Pfau & Marando, P.O. Box 9070, Youngstown, Ohio 44513 on April 10, 2008, by regular U.S.Mail.

Rhonda Gail Davis, Attorney for AppellantsAttorney for the Appellants

a

15

APPENDIX

STATE OF OHIO ))

MAHONING COUNTY ) SS:

ANTHONY KIRTOS, ET AL,

PLAINTIFFS-APPELLANTS,

tN THE COURT OF APPEALS OF OHIO '

SEVENTH DISTFUCT

NATIONWIDE INSURANCE COMPANY, ) JOURNAL ENTRY)

DEFENDANT-APPELLEE.

For the reasons stated in the opinion rendered herein, appellants' first, third,

fourth, fifth and sixth assignments of error are without merit and are overruled.

Appellants' second assignment of error has merit and is sustained but does not reverse

the trial court's decision. It is the final judgment and order of this Court that the judgment

of the Common Pleas Court, Mahoning County, Ohio is affirmed.

Costs to be taxed against appellants.

EXHIBiT l

t 1 ,*'- 1-44%04t^

ANTHONY KIRTOS, ET AL,

PLAINTIFFS-APPELLANTS,

VS:

NATIONWIDE INSURANCE COMPANY,

DEFENDANT-APPELLEE.

CHARACTER OF PROCEEDINGS:

JUDGMENT:

APPEARANCES:For Plaintiff-AppellantAnthony Kirtos

For Plaintiff-AppellantVirginia Kulik

For Defendant-Appellee

JUDGES:

Hon. Gene DonofrioHon. Joseph J. VukovichHon. Mary DeGenaro

CASE NO. 07-MA-97

OPINION

Civil Appeal from Court of CommonPleas of Mahoning County, OhioCase No. 02CV3477

Affirmed

Attorney Rhonda DavisRhonda Davis and Associates, LLC159 South Main StreetSuite 1111, Key BuildingAkron, Ohio 44308

Attorney John PfauPfau, Pfau & MarandoP.O. Box 9070Youngstown, Ohio 44513

Dated: February 25, 2008

EXHIBiT z-

r. .1 • ' :'1 -

DONOFRIO, J.

(11) Plaintiffs-appellants, Anthony Kirtos, Virginia KUlik, and Attofney Angela

Mikulka, appeal from a Mahoning County Corrimon Pleas Court judgment denying a

motion for a protective order which would prohibit defendant-appellee, Nationwide

Insurance Company, from taking Attorney Mikulka's deposition.

{12} This case stems from a 1997 motor vehicle accident in which Kirtos

and Kulik were injured. Kulik was a passenger in Kirtos's car. At the time of the

accident, Kirtos was insured by an automobile insurance policy issued by

Nationwide. The policy provided medical payments (med-pay) coverage of $5,000

per person. Both Kirtos and Kulik submitted med-pay claims to Nationwide, which it

paid.

{13} Throughout this litigation, Mikulka has represented Kirtos and Kulik.

{14} Kirtos and Kulik later filed a complaint against Nationwide on November

6, 2002, for bad faith and breach of contract. They alleged the following.

{15} At the time of paying their claims, Nationwide required Kirtos and Kulik

to execute a subrogation agreement assigning it all of their claims. Nationwide later

renewed its subrogation notice and sought repayment from the proceeds of the

`=responsible party or his insurance carrier. The tortfeasor involved in the accident

with Kirtos and Kulik was also a Nationwide insured.

{¶6} Kirtos and Kulik asserted six claims: (1) Nationwide improperly

attempted to subrogate against its own insured in bad faith; (2) Nationwide

demanded subrogation from them in bad faith after they had already assigned the

med-pay interest to Nationwide; (3) Nationwide, in bad faith, failed to pursue

repayment directly from the tortfeasor pursuant to the subrogation agreement; (4)

Nationwide failed to act in good faith by demanding payment of its subrogation

interest from Kirtos and Kulik from settlement amounts it knew represented less than

fair value of their claims; (5) Nationwide failed to act in good faith when it refused to

waive payment of its subrogation claim in light of the insufficient amount of the

settlement offers it made; and (6) Nationwide refused to and/or failed to process and

-2-

pay Kulik for med-pay claims she submitted on March 27, 2002, in breach of

contract.

{¶7} Nationwide filed a counterclaim against Kirtos and Kulik alleging that

they had failed to reimburse it for money it paid under the med-pay provision after

recovering from the tortfeasor.

{¶8} Both parties filed motions for partial summary judgment. The trial court

granted summary judgment to Kirtos and Kulik on Nationwide s counterclaim. It also

denied Kirtos and K..i;k sum^m,ary judgment on thelr breach of cGr,traGt ciaim. f,ndl'ly

that genuine issues of material fact surrounded this claim.

{¶9} Nationvrde also orally moved the court to disquaiify Mikulka and her

lav firm as Kirtos's and Kulik s counsel. It alleged that it would need to call f>1ikulka

as a witness in this case to testify regarding conversations she had with its

representatives during settiement negotiations. The trial court held this mohon i-,

abeyance and has not yet ruled o-i it.

{¶10} On March 30, 2007, Nationwide filed a notice to take Mikulka's

deposition. In response, Kirtos and Kulik filed a motion for a protective order to

prohibit Nationwide from deposing their counsel. They argued that Mikulka is not a

party to the action, Mikulka's testimony is barred by ffi8 attorney-client privilege and

the work product doctrine and Nationwide is attempting to cause undue expense to

t'nem. They also asserted that the trial court was required to conduct a hearing to

determine whether Natiom.vide's intended questioning would lead to any admissible

evidence. Finally, they argued that Nationwide was trying to force Mikulka to

withdraw from the case and the notice to depose her was in furtherance of

Nationwide's motion to disquallfy her. Nationwide responded by arguing that MikuPRa

is a material vvitness in t'nis case because the case centers around the settlement

negotiations ^,vhere Mikulka \^as a key player.

{¶11} In a one-line eritry, the trial court overruled appellants' motion for a

protective order. Appellants filed a timely notice of appeal on June 13, 2007.

{¶12} Preliminarily, it should be mentioned that in a September 17, 2007

journal entry, we determined that this case presents a final, appealable order:

Whether the trial court properly denied the motion for a protective order. 11

{113} Appellants raise six assignments of error, all alleging that the trial court

erred in denying the motion for a protective order.

{¶14} Civ,R. 26(C) deals with protective orders. It provides in part:

{¶15} "Upon motion by any party or by the person from whom discovery is

sought. and for good cause shown. the court in which the action is pendina may

.r,ake any order that justice requires to protect a party or person from amnoyanca

embarrassment, oppression. or undue burden or expense. including one or more of

the follo,,ving: (1) that the discovery not be had; (2) that the discovery may be had

only on specified terms and conditions. '''; (3) that the discovery may be had only

by a method of discovery other than that selected by the party seeking discovery. (4)

t',iat certain matters not be inquired into or that the scope of the discovery be limited

i

I I to certa:n ma'ters C;vR. 26•;C)

{¶16} On appeal, we revie^+r a trial court's order granting or denying a motion

for a protective order for an abuse of discretion. Ruwe v. Board of Tp. Trustees of

Springfield Tp. (1987), 29 Ohio St.3d 59, 61, 505 N.E.2d 957. Abuse of discretion

constitutes more than an error of lav/ or judgrnent; it implies that the court s attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. 8lakemore (1983) 5 Ohio

St.3d 217, 219, 40-0 N.E.2d 1140. ^^/ith this standard in mind, we move on to

consider appellants' assignments of error.

{¶17} Appellants' first assignment of error states:

{¶18} "THE TRIAL COURT ERRED IN DENYING THE MIKULKA MOTION

FOR PROTECTIVE ORDER, ON THE GROUND THAT THE ATTORNEY-CLIENT

PP,IVILEGE PRECLUDES HEP. DEPOSITION."

{¶19} Appellants argue that the trial court should have granted t'ne motion for

protective order based on- the attorney-client privilege as set out in R.C.

2317.02(A)(1): -

{¶20} "An attorney, concerning a communication made to the attorney by a

client in that relation or the attorney's advice to a client, except that the attorney may

testify by express consent of the client '". However, if the client voluntArily testifies

cr is deemed by section 2151.421 of the Revised Code to have waived any

testimonial privilege under this division, the attorney may be compelled to testify on

the same subject."

{¶21} Appellants argue that neither Kirtos and Kulik nor Mikulka has waived

tne attorney-client privilege.

{r22} The Cnly matters rrv^(eCi'..^. .'7'y tne attorR ;'y-ci!eiii prl'viicyc arc inQSc

involving communications bebrreen the attorney and the client. State v. Hoop (1999).

134 Ohio App.3d 627, 640, 731 N.E.2d 1177, citing Upjohn Co. v. United States

(1981) 449 U.S. 383. 395-96. 101 S.Ct. 677. 66 L.Ed.2d 584. Hickman v. Taylor

(19 :7). 329 U S. 495. 508. 67 S.Ct 385 91 L Ed. 451. 'Conversa'ions beh:veen the

attorney and a third party. as +::^II as the underlying facts of a case. are not

Fri•iileged-- Ia

{¶23} Here, it does not appear that Nationwide is attempting to solicit any

communications made between Kirtos/Kulik and Mikulka. It seems that Nationwide

is attempting to solicit from Mikulka facts surrounding her settlement negotiations

with its agents. However, some of these communications may still be protected by

t:^e attorney-client privilege or, in the alternative. the work-product doctrine.

{7124} The work-product doctrine protects from disclosure all ma!erials an

attorney prepares in articipation of trial, including notes, documents, or memoranda

prepared by the attorney or his representatives. Id., citing Upjohn, 449 U.S. at 397-

98, Hickman, 329 U.S. at 511, United Sta,es v. Nobles (1975), 422 U.S. 225, 237-38,

95 S.Ct. 2160, 45 L.Ed.2d 141.

{¶25} Since Natiornr;ide seeks to question Mikulka regarding her set:!ement

nagotiations, it is possible that some of the information it is seeking is protected by

the work-product doctrine. However. Mikulka will have an opportunity to assert the

attorney-client and work-product protections if and when Nationwide asks her

questions regarding information that she believes is protected. At that time in her

I

deposition, Mikulka can object and the matter will be left to the trial court to rule on.

Accordingly, appellants' first assignment of error is without merit. ^

(126) Appellants' second assignment of error states.

{¶27} "THE TRIAL COURT ERRED IN DENYING THE MIKULKA NIOTION

FOR PROTECTIVE ORDER, ON THE GROUND THAT THE NOTICE OF

DEPOSITION TO HER WAS IMPROPER."

(¶28) Here, appellants argue that Nationwide improperly attempted to obtain

ISlikulka s testimony by simply givir•,g notice that i: was go:ng to deposp- her

Appellants assert that the "notice° rule only applies to parties Since fvtikulka is not a

party. appellants argue that Nationwide could not "notice" her for a deposition.

(¶29) Civ.R. 30 addresses depositions. Pursuant to Civ.R. 30(A) and (B),

one may compel the attendance of a party deponent by the use of a notice of

examination including the deponent s name and address and tne time and piace of

t'e de,ceslt:On H-I:Y?Ver ?(12 R'J^e fU^(le' crOVldes ttiat c'l8 may c0r?'rei the

attendance of a witness deponent by the use of a subpoena as provided for under

Civ.R. 45. Civ.R. 30(A).

(¶30} In this case, Nationwide did not serve Mikulka with a subpoena.

Instead, it simply issued a notice of deposition, as it would if she were a party.

(¶31) But Mikulka is not a party to the bad faith/breach of contract case She

is Kirtos's and Kulik's attorney. Nationwide contends Mikulka is a material witness.

Consequent!y, Nationwide should have served her with a subpoena as it would any

other witness, instead of merely issuing a notice of cleposition Miku!ka has no

obligation or duty to respond to Natiorn,vide's notice of deposition. Howrever,

Nationwide can easily cure this error by serving Mikulka with a subpoena.

t¶32} Thus, appellants' second assignment of error has merit. Ho,v=-ver, the

finding of merit here does not result in the reversal of t'ne trial court's denial of the

protective order. It does not2,fo to the issue at hand of whether the trial court abused

its discretion in denying the protective order. Instead, it lends further support to

affirming the trial court's judgment because Mikulka could not be compelled to attend

-6-

the deposition since she was never subpoenaed to do so.

{133} Appellants' third assignment of error states:

{134} "THE TRIAL COURT ERRED IN DENYING THE MIKULKA MOTION

FOR PROTECTIVE ORDER, ON THE GROUND THAT THE APPELLANTS AND

MIKULKA WOULD BEAR UNDUE COSTS AND EXPENSES."

{135} Appellants contend here that if Nationwide were permitted to depose

Mikulka, she would incur extraordinary expenses in determining whether Natiorn,vide

could take her deposition, hiring her os,:n personal counsel for the deposition, ar,d

retaining other counsel to represent Kirtos and Kulik at the deposition.

{¶36} Mikulka may likely be a material witness in this case. In a case of bad

faith regarding whether an insurer negotiated with its insured in bad faith, evidence

as to the settlement negoiiations is highly relevant. The insurer cannot be denied the

opportunity to discover potent;a!ly sgnificant information simply because cou^sei

may have to disquaii`y h:ers=lf or incur added expenses. Accordingly. arpeilants

third assignment of error is without merit.

{137} Appellants' fourth assignment of error states:

{¶38} "THE TRIAL COURT ERRED IN DENYING THE MIKULKA MOTION

FOR PROTECTIVE ORDER, ON THE GROUND THAT MIKULKA WAS LTt`tITED

BY ETHICAL CONSTRAINTS AND LIMITATIONS."

{¶39} Appellants assert that the. trial court should have addressed the ethical

issues Mikulka would face by being deposed and whether Natiorrride's questioning

vvould attempt to force her to violate an ethical duty to her clients. They cite to the

Ohio Rules of Professional Conduct, which provide the circumstances under which a

lavryer may reveal information relating to the representation of a client including

information protected by the attorney-client privilege.'

{¶40} The same reasoning applies here as in appellants' first assjgnment of

error. Some of the information Nationwide seeks may be protected. If it is, then

Mikulka may not be forced to reveal it. However, this issue will not arise until Mikulka

is actually deposed and objects to specific questions. At that time, the trial court can

determine if the information Nationwide seeks is protected.

{¶41} Accordingly, appellants' fourth assignment of error is without merit.

{¶42} Appellants' fifth assignment of error states.

(¶43) "THE TRIAL COURT ERRED IN DENYING THE MIKULKA MOTION

FOR PROTECTIVE ORDER, ON THE GROUND THAT NATIONWIDE IS SEEKING

TO ANNOY, EMBARRASS, OPPRESS, HARASS AND INTIMIDATE MIKULKA IN

HER REPRESENTATION IN THIS AND OTHER CASES AND APPEARS TO BE

SEEKING DISQUALIFICATION OF MIKULKA."

{¶44) Appellants assert that this is not the onPy case involving Nation;vide as

a defendant in an insurance bad faith action where Mikulka represents the plaintiffs.

1 (¶a) "(a) A lawyer shall not reveal information relating to the representation of a c!ient,ir.cluding information protected by the attorney-client privilege under appticab!e law, unless the clientghies informed consent, the disclosure is impliedly authorized in order to carry`but the representation,cr t.,,e disclosure is permitted by division (b) or required by division (c) of this rule.

{¶b} "(b) A la•,wyer may revea! information relating to the representation of a cLent. includingir-cr na:ion protected by the attorney-client privilege under app!icabla law, to t'ne exte t the larry=rreasonably believes necessary for any of the following purposes:

(¶c) "(1) to prevent reasonably certain death or substantial bodily harm;(¶d} '(2' to prev_nt the commission of a crime by the client or other persor{¶e} "(3) to mitigate substantial injury to the financial interests or property of another tnat has

rasulted from the c!ient's commission of an illegal or fraudulent act, in furtherance of w/nich• the c!ianthas used the lavryer's services;

(¶f) "(4) to secure legal advice about the lawyer's compliance with these ru!es;(¶g) "(5) to establish a claim or defense on behalf of the lawyer in a controversy be^meen the

!a-,yer and the c!ient, to estabiish a defense to a criminal charge or civil claim, against the lanyer basedccon conduct in which the client was involved, or to respond to allegations in any proceedine. includingan dlsciplinarj ma;ter, concerning the lawyer's representation of the dient;

(¶h) '(6) to comply with othst,law or a court order.(¶i) "(c) A lawyer shall reveal information relating to the representation of a client, including

information protected by the attorney-client privilege under applicable law, to the extent the lawyerreasonably believes necessary to comply with Rule 3.3 or 4.1." Ohio Rules of Prafessional Conduct1.6.

-8-

They argue that because the trial court did not rule on Nationwide's motion to

disqualify Mikulka, Nationwide decided to force the issue by filing a notic^ to depose

Mikulka. Appellants assert that Nationwide has done this in an attempt to harass

Nlikulka, as her attention is now focused on the deposition issue instead of the bad

faith claims.

{¶45} Appellants can point to no evidence on the record that Nationwide is

trying simply to harass Mikulka. It is entirely possible that Mikulka possesses

information that is materiai to tre claims at hand and that Natior,wide is entitled ;o

t:^is information. Accordingly, appeliants' fifth assignment of error is without merit.

{¶46} Appellants sixth assignment of error states:

{¶47} 'THE TRIAL COURT ERRED IN FAILING TO HOLD A COURT

FiEARING ON THE MOTION FOR PROTECTIVE ORDER."

{¶48} Appellants assart tha` the trial court should have he'd a hearing to

Ce`erf?line V/hetne:' Na`.!or;Yl'Je s Inten'd^_d qUestioning would reS,i;t in any adm,sslbl8

evidence. Additionally, appellants contend that at a hearing on the issue, the trial

court could have determined exactly what information Nationwide was seeking and

determined if the information was available by some other means.

{¶49} Appellants contend that Nationwide is seeking privileged information

and/or work product from P;likuika and that Nationwide could obtain the informaFion it

seeks from other sources. But Nat:on;vide contends that the information it seeks is

not privileged and cannot be obtained from other sources.

{¶5D} In this case, it was not necessary for the trial court to hold a hearing.

To do so would have been somewhat hasty. First, as stated above, as it stands novi

Pilikulka has no duty to. appear for a deposition because she has not been

s;;'opoenaed. Second, until Natiorn,vide takes Mikulka's deposition and asks her

questions that may be protected by the attorney-client privilege or the work-product

doctrine, the issue as to whet`ner the information is protected is premature. Thus,

appellants' sixth assignment of error is without merit.

{¶51} For the reasons stated above, the trial court's judgment is hereby

I

affirmed.

Vukovich. J. =^.^^cuC=

DeGenaro, P.J , concu_-s.

APPROVED:

-9-

- cL.EFtK OF uRTsAuw!,.nq.o COtlN".ltHIO /

IN THE COURT OF COMMON PLEASMAHONING COUNTY, OHIO IrIi;Y 1 6 2007

r-tt.Eo_Ar1T,HONYv}yC1, CE.Fit^,___

ANTHONY J. KIRTOS, ET AL ) CASE NO. 02 CV 3477) COURTROOM NO. 4

PLAINTIFFS ) JUDGE JOHN M. DURKIN ,u

^rw

vs. )JUDGMENT ENTRY

0 0 ^

NATIONWIDE (NSURANCE COMPANY

DEFEND,ANT

®

Plaintifis' Motion for Protective Order is hereby ovenliled.

D.-\"f cJ!IDGE JO:Iti M. D^TRitilti

CLERK; vCPY TO A!.i. COUNSEL(J? U ;aF U- `i;:aZZui;:D PART1'

tk

000191

EXHIBIT 3