R.C. 2317.02(A)(2) Supersedes Boone: Insurer Attorney-Client Communications Are Discoverable Only After a Prima Facie Showing of Bad Faith and an In Camera Finding of “Aiding or Furthering” Bad Faith; Work Product Remains Protected Absent Civ.R. 26(B)(4) Good Cause

Case: Eddy v. Farmers Property Cas. Ins. Co. (Supreme Court of Ohio)
Citation: 2026-Ohio-626 (Slip Opinion No. 2026-Ohio-626)
Date: February 26, 2026
Author: DeWine, J. (Kennedy, C.J., and Deters, Hawkins, Shanahan, JJ., joined)
Dissent: Fischer and Brunner, JJ. (would dismiss as improvidently accepted)

I. Introduction

This decision addresses the discoverability of an insurer’s claims-file documents in a later bad-faith lawsuit, where the insurer asserts the attorney-client privilege and the work-product doctrine. Melissa and Alexis Eddy (insureds) sought underinsured motorist (“UIM”) benefits from Farmers Property Casualty Insurance Company (“Farmers”) after receiving the tortfeasor’s policy limits. Negotiations stalled; the Eddys filed a coverage suit (breach of contract) in August 2021, which later settled when Farmers paid the additional $150,000 sought. Months after that settlement, the Eddys filed a second lawsuit alleging Farmers handled the claim in bad faith by delaying resolution.

The discovery fight centered on Farmers’ refusal to produce 20 claims-file documents created after the coverage litigation began (August 27, 2021) through payment (April 11, 2022). The trial court ordered production of the entire unredacted file up to the payment date without conducting an in camera review. The First District affirmed, relying on Boone v. Vanliner Ins. Co., 2001-Ohio-27, and also held Farmers’ privilege assertions insufficient under Civ.R. 26(B)(8).

The Supreme Court of Ohio reversed. The central legal issues were:

• Whether Boone still governs insurer bad-faith discovery disputes involving attorney-client privilege; and
• How R.C. 2317.02(A)(2) and Civ.R. 26(B)(4) constrain production of privileged communications and work product from insurer claims files.

II. Summary of the Opinion

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Foundations of privilege: statutory control and policy

• Spitzer v. Stillings, 109 Ohio St. 297 (1924): Cited for the long recognition of attorney-client privilege and for the proposition that privilege is “a matter of policy” within the legislature’s power to modify or abrogate. The Court uses Spitzer to justify giving primacy to the statutory scheme in R.C. 2317.02(A)(2).
• King v. Barrett, 11 Ohio St. 261 (1860): Invoked to show Ohio has historically recognized the General Assembly’s authority to alter the common-law privilege through statute—supporting the conclusion that R.C. 2317.02(A)(2) supersedes judge-made exceptions.
• State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2005-Ohio-1508: Used for the framework that privilege is governed by statute, and common law fills gaps only where the statute does not address the issue.
• Upjohn Co. v. United States, 449 U.S. 383 (1981): Quoted for the “full and frank communication” rationale underlying attorney-client privilege.

2. The pre-statutory insurer bad-faith line: Moskovitz and Boone

• Moskovitz v. Mt. Sinai Med. Ctr., 1994-Ohio-324: The Court recounts Moskovitz as the origin of an expansive approach to discovering claims-file material in a particular procedural context: a postjudgment prejudgment-interest proceeding under R.C. 1343.03(C). Moskovitz suggested that materials showing lack of a good-faith settlement effort were “unworthy” of privilege protection, while still directing in camera review and indicating some protection for materials tied to “the theory of defense.”
  
  In Eddy, the Court treats Moskovitz as both historically important and doctrinally suspect: it characterizes Moskovitz as an “expansive remaking” not grounded in the privilege statute and not a faithful application of the traditional crime-fraud exception.
• Boone v. Vanliner Ins. Co., 2001-Ohio-27: The First District relied on Boone to uphold broad discovery. The Supreme Court reframes Boone in two key ways: (i) as a judicially created exception to the attorney-client privilege in insurer bad-faith cases for materials created prior to denial of coverage; and (ii) as a decision that, by its own terms, did not create an exception to the work-product doctrine (and indeed withheld post-denial materials as “attorney-client communications and/or work product”).
  
  Crucially, Eddy holds that whatever vitality Boone once had on the privilege side has been “completely abrogated” by R.C. 2317.02(A)(2).
• Peyko v. Frederick (1986), 25 Ohio St.3d 164: Not analyzed on its facts, but referenced in the uncodified legislative statement expressly modifying the common law associated with Boone, Moskovitz, and Peyko “to provide for judicial review regarding the privilege.” This citation matters as evidence of legislative intent to displace judge-made doctrine with a statutory procedure (prima facie showing + in camera review).

3. Statutory privilege reaches documents, not just testimony

• In re Klemann, 132 Ohio St. 187 (1936): A key authority for the proposition that a statutory testimonial privilege also blocks compelled production of documents embodying privileged communications. The Court relies on Klemann to reject the insureds’ argument that R.C. 2317.02(A)(2) covers only attorney testimony.
• Jackson v. Greger, 2006-Ohio-4968: Quoted for the principle that testimonial privileges apply in discovery because discovery is aimed at trial use; otherwise the privilege would be hollow. This supports applying R.C. 2317.02(A)(2) to claims-file documents.
• Burnham v. Cleveland Clinic, 2016-Ohio-8000; State v. Smorgala, 50 Ohio St.3d 222 (1990); State ex. rel. Lambdin v. Brenton, 21 Ohio St.2d 21 (1970): These reinforce that when privilege is governed by statute, courts should not create a “vacuum” filled by common-law pronouncement inconsistent with the statute.
• Stull v. Summa Health Sys., 2024-Ohio-5718: Used both to define “in camera inspection” in ordinary judicial practice (document review) and to reiterate that in complicated privilege disputes, courts should take steps—including in camera review—to resolve the claim. Eddy uses Stull to show that an in camera review is good practice even apart from R.C. 2317.02(A)(2), and here is statutorily required.

4. Work product doctrine: no special bad-faith carve-out

• Hickman v. Taylor, 329 U.S. 495 (1947): The doctrinal source of work-product protection—guarding the “files and mental processes of lawyers” in anticipation of litigation.
• Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp, 2010-Ohio-4469: Cited for the Civ.R. 26(B)(4) “good cause” standard: work product may be produced only when it is directly at issue, need is compelling, and it cannot be obtained elsewhere.
• Estate of Hohler v. Hohler, 2009-Ohio-7013 (7th Dist.); Sherwin-Williams v. Motley Rice, L.L.C., 2012-Ohio-809 (8th Dist.): These appellate precedents are used to support the practical point that ordering production of asserted work product without in camera review can be an abuse of discretion, because courts cannot meaningfully apply “good cause” without examining the materials.

5. Appellate procedure: party presentation

• Epcon Communities Franchising, L.L.C. v. Wilcox Dev. Group, L.L.C., 2024-Ohio-4989; Greenlaw v. United States, 554 U.S. 237 (2008); Clark v. Sweeney, 607 U.S. ___, 2025 WL 3260170; Lomax v. Ortiz-Marquez, 590 U.S. ___, 140 S.Ct. 1721 (2020): These authorities support the Court’s criticism of the First District’s reliance on a forfeiture rationale (insufficient Civ.R. 26(B)(8) detail) not raised by the parties. The Court frames the error as a departure from the “principle of party presentation.”

B. Legal Reasoning

1. The Court’s central move: statutory displacement of judge-made insurer bad-faith privilege exceptions

The opinion’s core reasoning is structural: attorney-client privilege in Ohio is primarily statutory (R.C. 2317.02(A)), with common law operating only in unregulated spaces (Evid.R. 501). Once the General Assembly enacted R.C. 2317.02(A)(2) to address insurer bad faith specifically—and paired it with uncodified language declaring the privilege a “substantial right” and modifying Boone/Moskovitz/Peyko—there was no remaining room for a broader judicial exception.

Accordingly, the Court does not “interpret” Boone narrowly; it holds that the statute has “completely abrogated” Boone on attorney-client privilege, replacing it with a more demanding, procedure-heavy test.

2. R.C. 2317.02(A)(2) applies to documents in discovery

The insureds’ attempt to cabin R.C. 2317.02(A)(2) to “attorney testimony” is rejected via a long line of Ohio authority holding that a testimonial privilege would be meaningless if parties could simply subpoena the privileged communications in documentary form. The Court emphasizes the statute’s own reference to “in camera inspection,” which typically entails document review.

3. The statute’s substantive standard is narrow: “aiding or furthering” ongoing or future bad faith

R.C. 2317.02(A)(2) does not say that privileged communications are discoverable whenever bad faith is alleged. It requires:

• Threshold: a prima facie showing of “bad faith, fraud, or criminal misconduct” by the insurer; and
• Scope limitation (after in camera review): only communications “related to the attorney’s aiding or furthering an ongoing or future commission of bad faith by the client.”

This is notably different from the broader “unworthy of protection” rhetoric attributed to Moskovitz and then extended in Boone. The statutory language aligns more closely with a traditional crime-fraud-type limitation (communications in furtherance of misconduct), rather than a generalized “bad faith claim puts everything at issue” approach.

4. Work product remains governed by Civ.R. 26(B)(4), not by insurer bad-faith common law

The Court separates privilege from work product. It treats the work-product doctrine as rule-based (Civ.R. 26(B)(4)) and emphasizes its presumption of protection for materials prepared in anticipation of litigation. The insureds’ reliance on Boone and Moskovitz is rejected:

• Moskovitz is confined to a specific postjudgment statutory prejudgment-interest proceeding, where trial-preparation concerns are reduced.
• Boone is read as not creating any broad work-product exception and as itself withholding work product created after denial of coverage.

The Court also signals skepticism about Boone’s factual assumption that work product cannot exist before a denial of coverage, but that observation serves mainly to reinforce that work product analysis must track Civ.R. 26(B)(4), not categorical temporal proxies.

5. Error correction: privilege log sufficiency and the necessity of in camera review

The First District’s affirmance rested partly on Civ.R. 26(B)(8) (privilege log) insufficiency. The Supreme Court finds that rationale procedurally improper (not raised by the parties) and substantively unpersuasive given Farmers’ repeated invocation of privilege, production of a privilege log identifying 20 documents, and request for in camera review.

The Court effectively underscores a practical adjudicative point: where the governing standards require a tailored determination (statutory “aiding or furthering” and rule-based “good cause”), a blanket production order—especially without in camera review—cannot stand.

6. Remand instructions create an operational framework for trial courts

The Court provides a step-by-step procedure:

1. Determine whether the insureds made a prima facie showing of bad faith/fraud/criminal misconduct (R.C. 2317.02(A)(2)).
2. Conduct in camera review of disputed claims-file portions to identify (a) attorney-client communications and (b) Civ.R. 26(B)(4) work product.
3. If no prima facie showing: attorney-client communications remain protected.
4. If prima facie showing: disclose only communications related to attorney “aiding or furthering” ongoing/future bad faith (as found in camera).
5. Work product: disclose only upon a Civ.R. 26(B)(4) showing of good cause.
6. Non-privileged, non-work-product materials: discoverable under Civ.R. 26(B)(1) relevance/proportionality.

C. Impact

1. Doctrinal impact: Ohio pivots from Boone-style exception to a statute-centered regime

The most consequential feature is the Court’s explicit holding that R.C. 2317.02(A)(2) “completely abrogated” Boone as to attorney-client privilege. For Ohio practitioners, Boone ceases to be an operative doctrine for piercing insurer privilege; the statute becomes the exclusive gateway.

2. Practical impact: fewer blanket claims-file productions; more targeted in camera adjudication

Trial courts are instructed away from categorical rules like “everything up to payment/denial is discoverable.” Instead, courts must engage in document-by-document screening (at least for disputed materials) to determine whether the statutory and rule-based thresholds are met. This will likely:

• Increase the frequency and centrality of in camera reviews in insurer bad-faith discovery disputes;
• Shift litigation to the “prima facie showing” stage and to arguments about whether communications furthered ongoing/future bad faith; and
• Strengthen protection for litigation-phase claims-handling communications that are intertwined with counsel’s advice, unless the statutory criteria are satisfied.

3. Work product: reinforces a high bar and resists “bad faith” as an automatic lever

By re-centering Civ.R. 26(B)(4), the Court makes “good cause” the controlling inquiry. Bad faith allegations may supply context, but they do not erase the doctrine. Parties seeking work product must show the information is directly at issue, compellingly needed, and not otherwise obtainable—an exacting standard under Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp.

4. Appellate practice: cautions against sua sponte forfeiture findings

The Court’s reliance on party presentation authorities signals restraint: appellate courts should be wary of affirming or reversing based on arguments not briefed. In discovery appeals, where privilege analysis can be outcome-determinative, the decision encourages courts to address the parties’ actual privilege framework (here, R.C. 2317.02(A)(2) and Civ.R. 26(B)(4)) rather than pivot to unbriefed procedural defaults.

IV. Complex Concepts Simplified

• Attorney-client privilege: Protects confidential communications between lawyer and client made for legal advice. In Ohio, it is primarily statutory (R.C. 2317.02(A)).
• Work-product doctrine: Protects materials prepared in anticipation of litigation (notes, strategies, attorney impressions). Under Civ.R. 26(B)(4), it is presumptively protected and only produced on “good cause.”
• Prima facie showing: A threshold evidentiary showing—enough facts, if believed, to support the claim (here, bad faith/fraud/criminal misconduct) so the court will proceed to the next step (in camera review).
• In camera inspection: The judge reviews documents privately (not disclosed to the opposing party) to decide whether privilege/work-product applies and whether any exception permits disclosure.
• “Aiding or furthering” bad faith (R.C. 2317.02(A)(2)): Even if bad faith is shown, only communications that further ongoing/future bad faith lose protection—this is narrower than “communications about a disputed claim.”
• Privilege log (Civ.R. 26(B)(8)): A list describing withheld documents and the asserted protection so the requesting party can challenge the claim without seeing the documents themselves.
• Party presentation principle: Courts generally decide cases on arguments the parties raise; judges should not decide on unbriefed theories without giving parties a chance to respond.

V. Conclusion

Eddy v. Farmers Property Cas. Ins. Co. is a reset of Ohio insurer bad-faith discovery doctrine. The Supreme Court holds that R.C. 2317.02(A)(2)—enacted after Boone—governs when attorney-client communications may be compelled from an insurer’s claims file, requiring (1) a prima facie showing of bad faith (or fraud/criminal misconduct) and (2) in camera review limiting disclosure to communications that further ongoing or future bad faith. Separately, Civ.R. 26(B)(4) controls work product, which remains presumptively protected and is disclosable only upon “good cause.”

The decision’s broader significance lies in its insistence that privilege disputes in insurer bad-faith cases be resolved by the statute-and-rule framework, not by categorical, judge-made exceptions or blanket claims-file production orders.