SUMMARY ORDER
Plaintiff-Appellant Anthony Rolls, pro se, appeals from the May 7, 2008 order of the United States District Court for the Southern District of New York (Berman, J.) granting Defendant-Appellee Pennsylvania Hotel's motion for summary judgment. We assume the parties' familiarity with the underlying facts and the procedural history of the case.
We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 355 (2d Cir. 2005); Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In determining whether there are genuine issues of material fact, we are "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotations omitted).
After having reviewed Rolls's contentions on appeal and the record of proceedings below, we affirm for substantially the same reasons stated by the district court in its thorough opinion. We have considered all of Rolls's arguments and find them to be without merit.
Accordingly, the judgment of the district court is AFFIRMED.
e nor the so-called work product exception precludes discovery of an insurer's claims file. The only privileged matters contained in the file are those that go directly to the theory of defense of the underlying case in which the decision or verdict has been rendered." Id. at paragraph three of the syllabus.
{¶ 31} In Boone v. Vanliner Ins. Co. (2001), 91 Ohio St.3d 209, 212, 744 N.E.2d 154, the court extended the exception recognized in Moskovitz to attorney-client communications furthering an insurance company's lack of good faith in denying coverage, holding such communications to be "unworthy of protection" by the attorney-client privilege. We explained that "the rationale behind our holding in Moskovitz is applicable to actions alleging bad faith denial of coverage. That is, claims file materials that show an insurer's lack of good faith in denying coverage are unworthy of protection." Id. at 213. However, the court, defining the scope of that exception, explained that "the only attorney-client and work-product documents that would contain information related to the bad faith claim, and, thus, be unworthy of protection, would have been created prior to the denial of coverage." Id.
Joint-Representation Exception
{¶ 32} In addition, Ohio courts have applied the common-law joint-representation exception to the attorney-client privilege, which provides that a client of an attorney cannot invoke the privilege in litigation against a co-client. See, e.g., Emley v. Selepchak (1945), 76 Ohio App. 257, 262, 31 O.O. 558, 63 N.E.2d 919, quoting 8 Wigmore on Evidence (3d Ed. 1940), Section 2312 ("Another exception * * * is `when the same attorney acts for two parties having a common interest, and each party communicates with him. Here the communications are clearly privileged from disclosure at the instance of a third person. Yet they are not privileged in a controversy between the two original parties, inasmuch as the common interest and employment forbade concealment by either from the other * * *.'" [Emphasis sic]); Netzley v. Nationwide Mut. Ins. Co. (1971), 34 Ohio App.2d 65, 78, 63 O.O.2d 127, 296 N.E.2d 550 (following Emley); see also Weissenberger's Ohio Evidence Treatise (2009) 246-247, Section 501.8 ("A similar exception applies when an action arises between parties who were previously co-clients within an attorney-client relationship").
{¶ 33} Although the crime-fraud, lack-of-good-faith, and joint-representation exceptions to the attorney-client privilege are not expressly codified in R.C. 2317.02(A), they nonetheless "exist within the body of common-law principles governing privilege." Weissenberger's Ohio Evidence at 246 (noting the crime-fraud, fee-dispute, malpractice, and co-client exceptions); see also 1 Giannelli Snyder, Evidence (2d Ed. 2001) 342, Section 501.14 ("Although the statute is silent, there are several well-recognized exceptions to the attorney-client privilege"). These exceptions define the scope of the protections afforded to attorney-client communications by R.C. 2317.02(A), because, as the court explained in Moskovitz, "the privilege does not attach" when an exception applies. 69 Ohio St.3d at 661, 635 N.E.2d 331.
The Self-Protection Exception
{¶ 34} At common-law, "[a]n exception to the attorney-client privilege permits an attorney to reveal otherwise protected confidences when necessary to protect his own interest." Levine, Self-interest or Self-Defense: Lawyer Disregard of the Attorney-Client Privilege for Profit and Protection (1977), 5 Hofstra L. Rev. 783. This exception provides that "when an attorney becomes involved in a legal controversy with a client or former client, the attorney may reveal any confidences necessary to defend himself or herself or to vindicate his or her rights with regard to the disputed issues." 1 Stone Taylor, Testimonial Privileges (2d Ed. 1995) 1-177, Section 1.66. See also Mitchell v. Bromberger (1866), 2 Nev. 345; 1 McCormick on Evidence (6th Ed. 2006) 414, Section 91.1.
{¶ 35} The self-protection exception dates back over 150 years to its articulation by Justice Selden in Rochester City Bank v. Suydam, Sage Co. (N.Y.Sup. Ct. 1851), 5 How. Pr. 254, 262. There he wrote, "Where the attorney or counsel has an interest in the facts communicated to him, and when their disclosure becomes necessary to protect his own personal rights, he must of necessity and in reason be exempted from the obligation of secresy [sic]." (Emphasis added in part.)
{¶ 36} Since that time, this exception has become firmly rooted in American jurisprudence. The Supreme Court of the United States recognized it in 1888 in Hunt v. Blackburn (1888), 128 U.S. 464, 470-471, 9 S.Ct. 125, 32 L.Ed. 488, and courts and commentators have accepted the self-protection exception as black-letter law defining which communications are subject to the attorney-client privilege. See generally Levine, 5 Hofstra L. Rev. 783; see also Nave v. Baird (1859), 12 Ind. 318; Mitchell v. Bromberger, 2 Nev. 345; Koeber v. Somers (1901), 108 Wis. 497, 84 N.W. 991, 994; 8 Wigmore on Evidence (McNaughton Rev.Ed. 1961) 607-608, Section 2312; 2 Mechem, Treatise on the Law of Agency (2d Ed. 1914) 1900, Section 2313; 1 McCormick on Evidence at 414, Section 91.1; Wolfram, Modern Legal Ethics (1986) 307, Section 6.7.8; 3 Weinstein's Federal Evidence (2d Ed. 2007) 503-101, Section 503.33; Sedler Simeone, The Realities of Attorney-Client Confidences (1963), 24 Ohio St.L.J. 1, 53; Restatement (Third) of the Law Governing Lawyers (2000), Section 83.
{¶ 37} Notably, Ohio courts, including this court, have recognized the self-protection exception. In Estate of Butler (App. 1939), 32 Ohio Law Abs. 1, 1939 WL 3319, the beneficiaries of the estate of Henry V. Butler challenged the administrator's payment of legal fees to Butler's attorney, Grover C. Brown. The probate court struck Brown's testimony regarding the services he had rendered to Butler as privileged pursuant to G.C. 11494, the predecessor to R.C. 2317.02(A). The court of appeals reversed, holding that "an attorney in matters pertaining to his interest has a right to testify and is not precluded from doing so by virtue of [G.C.] 11494 * * *. The rule is very broad which permits testimony of an attorney in support of his claim for fees." Id. at *15.
{¶ 38} We affirmed that decision, explaining that "[s]ince the administrator was charged with maladministration in the allowance and payment of Brown's claim against the estate, the defense of the administrator was dependent upon establishing the correctness of the claim by showing the amount and value of the services which Brown had rendered to Butler. The administrator was certainly entitled to such evidence in his defense and was entitled to have Brown, necessarily a very important witness, testify on this subject." In re Butler's Estate (1940), 137 Ohio St. 96, 114, 17 O.O. 432, 28 N.E.2d 186.
{¶ 39} We noted that Brown had not been disqualified from testifying as a creditor because his claim against the estate had been paid, and we continued: "Nor should the testimony of Brown have been wholly excluded on the ground that he had been counsel and attorney for Butler. Brown was at least a competent witness to testify to any matters upon which he did testify, relating to the services he had performed, to documentary evidence covering transactions handled for Butler, to communications made to him by Butler in the presence of third persons, and to other matters which are excepted from the operation of the exclusionary provisions of Section 11494, General Code." In re Butler's Estate, 137 Ohio St. at 114, 17 O.O. 432, 28 N.E.2d 186. Notably, when the General Assembly recodified G.C. 11494 at R.C. 2317.02, it did not supersede that holding.
{¶ 40} Thus, our caselaw recognizes that the attorney-client privilege does not prevent an attorney from testifying to the correctness, amount, and value of the legal services rendered to the client in an action calling those fees into question. In re Butler's Estate, 137 Ohio St. at 114, 28 N.E.2d 186; see also 1 Giannelli Snyder, Evidence, at 342 ("The privilege also does not apply in an action by an attorney against the client for the collection of legal fees"); Weissenberger's Ohio Evidence at 246 ("Nor does privilege attach in actions between the attorney and client, as in a fee dispute").
{¶ 41} Further, the self-protection exception to the attorney-client privilege permitting the attorney to testify also applies when the client puts the representation at issue by charging the attorney with a breach of duty or other wrongdoing. Weissenberger's Ohio Evidence, id.; 1 Giannelli Snyder, Evidence, at 342. Courts recognize that "`[t]he attorney-client privilege cannot at once be used as a shield and a sword.'" In re Lott (C.A.6, 2005), 424 F.3d 446, 454, quoting United States v. Bilzerian (C.A.2, 1991), 926 F.2d 1285, 1292. Thus, a client may not rely on attorney-client communications to establish a claim against the attorney while asserting the attorney-client privilege to prevent the attorney from rebutting that claim.
{¶ 42} Rather, "the attorney-client privilege exists to aid in the administration of justice and must yield in circumstances where justice so requires," Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d at 661, 635 N.E.2d 331. The same considerations of justice and fairness that undergird the attorney client privilege prevent a client from employing it in litigation against a lawyer to the lawyer's disadvantage. Wolfram, Modern Legal Ethics (1986) 308, Section 6.7.8; Wright Miller, Federal Practice Procedure (1997, Supp. 2010), Section 5503; Restatement (Third) of the Law Governing Lawyers, Section 83, Comment b.
{¶ 43} Thus, courts apply the exception because "[i]t would be a manifest injustice to allow the client to take advantage of [the attorney-client privilege] to the prejudice of his attorney * * * [or] to the extent of depriving the attorney of the means of obtaining or defending his own rights." Mitchell v. Bromberger, 2 Nev. 345; see also Doe v. A Corp. (C.A.5, 1983), 709 F.2d 1043, 1048-1049; Daughtry v. Cobb (1939), 189 Ga. 113, 118, 5 S.E.2d 352; Stern v. Daniel (1907), 47 Wash. 96, 98, 91 P. 552; Koeber v. Somers, 84 N.W. at 995.
{¶ 44} Givaudan, however, relies on Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, ¶ 13, for the proposition that this court has "consistently rejected the adoption of judicially created waivers, exceptions, and limitations for testimonial privilege statutes." Jackson dealt with the question of whether to recognize the doctrine of implied waiver of the attorney-client privilege as articulated in Hearn v. Rhay, 68 F.R.D. 574. Applying State v. McDermott (1995), 72 Ohio St.3d 570, 651 N.E.2d 985, the court explained that R.C. 2317.02(A) provides the exclusive means by which privileged communications directly between an attorney and a client can be waived. Jackson at ¶ 11. Jackson is distinguishable on its facts because it dealt only with a waiver of the attorney-client privilege; we concern ourselves in the instant case with a common-law exception to the privilege, the self-protection exception.
{¶ 45} In addition, we rejected the same argument Givaudan presents in Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209, 744 N.E.2d 154. Vanliner relied on McDermott's statement that R.C. 2317.02(A) provides the exclusive means for waiving the attorney-client privilege. Id. at 213. We disagreed. Justice Douglas, writing for the majority, stated: "The flaw in Vanliner's argument is that McDermott addresses client waiver of the privilege, whereas Moskovitz sets forth an exception to the privilege and is therefore unaffected by our holding in McDermott." (Emphasis sic.) Id.
{¶ 46} Moreover, Givaudan's argument runs counter to our caselaw, which recognizes exceptions to the attorney-client privilege. As Professor Weissenberger noted, "[i]f one reads McDermott literally, then the crime-fraud, fee dispute, malpractice, co-client, and other public policy exceptions are invalid judicial augmentations of the statutory privilege, and have no effect." Weissenberger's Ohio Evidence at 247, Section 501.8. But our cases do recognize these exceptions. See Boone, 91 Ohio St.3d at 213, 744 N.E.2d 154 (lack of good faith); Nix, 83 Ohio St.3d at 383, 700 N.E.2d 12 (crime-fraud); Moskovitz, 69 Ohio St.3d at 661-663, 635 N.E.2d 331 (crime-fraud and lack of good faith); Lemley, 6 Ohio St.3d at 266, 6 OBR 324, 452 N.E.2d 1304 (cooperation in wrongdoing).
{¶ 47} In deciding Jackson and McDermott, we did not cast aside the well-established common-law exceptions to the attorney-client privilege. Unlike waiver, which involves the client's relinquishment of the protections of R.C. 2713.02(A) once they have attached, an exception to the attorney-client privilege falls into the category of situations in which the privilege does not attach to the communications in the first instance and is therefore excluded from the operation of the statute. See Ross v. Abercrombie Fitch Co. (Apr. 22, 2008), S.D.Ohio Nos. 2:05-cv-0819 et seq., 2008 WL 1844357, *1 ("Logically, the first issue to be addressed in any case where one party claims that any applicable privileges have been waived is whether the privileges attach to the requested documents in the first instance"); Moskovitz, 69 Ohio St.3d at 661, 635 N.E.2d 331 ("the privilege does not attach in a situation where the advice sought by the client and conveyed by the attorney relates to some future unlawful or fraudulent transaction"); Restatement (Third) of the Law Governing Lawyers, Chapter 5, Topic 2, Title C, Introductory Note (distinguishing between waivers of the privilege and exceptions to it); Black's Law Dictionary (9th Ed. 2009) 644 (defining "exception"); id. at 1717 (defining "waiver"). In line with this analysis, Givaudan's reliance on Jackson is misplaced because Ohio recognizes common-law exceptions to the privilege as outlined above.
{¶ 48} And as discussed, Ohio recognizes the common-law self-protection exception to the attorney-client privilege, which permits an attorney to testify concerning attorney-client communications where necessary to establish a claim for legal fees on behalf of the attorney or to defend against a charge of malpractice; or other wrongdoing in litigation between the attorney and the client.
{¶ 49} Our decision today also comports with Prof.Cond.R. 1.6(b)(5), which provides:
{¶ 50} "A lawyer may reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, to the extent the lawyer reasonably believes necessary * * *
{¶ 51} "(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client * * *." (Emphasis sic.)
{¶ 52} Further, Comment [10] to Prof.Cond.R. 1.6 explains that an attorney has a right to respond to the allegations of a client in a lawsuit that the attorney committed a wrong against the client. Comment [11] also specifies that an attorney may prove the legal services rendered to a client in an action to collect a fee, noting that this aspect of Prof.Cond.R. 1.6(b) "expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary."
{¶ 53} Ohio recognizes the self-protection exception to the attorney-client privilege and that exception applies in this situation. Therefore, R.C. 2317.02(A) does not prevent an attorney from responding to allegations that the attorney wronged a client or from establishing the reasonable value of the legal services rendered to a client to the extent that such evidence is necessary to establish a claim or defense on behalf of the attorney in litigation between the attorney and the client.
The Work-Product Doctrine
{¶ 54} The work-product doctrine emanates from Hickman v. Taylor (1947), 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451, in which the Supreme Court of the United States recognized that "[p]roper preparation of a client's case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. * * * This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case ( 153 F.2d 212, 223) as the `Work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."
{¶ 55} Addressing these concerns, the work-product doctrine provides a qualified privilege protecting the attorney's mental processes in preparation of litigation, establishing "a zone of privacy in which lawyers can analyze and prepare their client's case free from scrutiny or interference by an adversary." Hobley v. Burge (C.A.7, 2006), 433 F.3d 946, 949. However, as the Supreme Court of the United States has explained, "the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system," and the privilege afforded by the work-product doctrine is not absolute. United States v. Nobles (1975), 422 U.S. 225, 238 and 239, 95 S.Ct. 2160, 45 L.Ed.2d 141.
{¶ 56} Civ. R. 26(B)(3) describes the work-product doctrine as it applies in civil cases in Ohio: "Subject to the provisions of subdivision (B)(5) of this rule [relating to retained experts], a party may obtain discovery of documents, electronically stored information and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing of good cause therefor."
{¶ 57} In Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487, we examined the meaning of "good cause," stating that "a showing of good cause under Civ. R. 26(B)(3) requires demonstration of need for the materials — i.e., a showing that the materials, or the information they contain, are relevant and otherwise unavailable. The purpose of the work-product rule is `(1) to preserve the right of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (2) to prevent an attorney from taking undue advantage of his adversary's industry or efforts.' Civ. R. 26(A). To that end, Civ. R. 26(B)(3) places a burden on the party seeking discovery to demonstrate good cause for the sought-after materials." Id. at ¶ 16.
{¶ 58} While the protections for attorney work product provided in Civ. R. 26(B)(3) expressly apply to "documents, electronically stored information and tangible things prepared in anticipation of litigation," protection also extends to intangible work product. Hickman, 329 U.S. at 511, 67 S.Ct. 385, 91 L.Ed. 451; In re Cendant Corp. Securities Litigation (C.A.3, 2003), 343 F.3d 658, 662; United States v. One Tract of Real Property (C.A.6, 1996), 95 F.3d 422, 428, fn. 10; 8 Wright, Miller, Kane Marcus, Federal Practice and Procedure (3d Ed. 2009), Section 2024. The protection for intangible work product exists because "[otherwise, attorneys' files would be protected from discovery, but attorneys themselves would have no work product objection to depositions." In re Seagate Technology, L.L.C. (C.A.Fed, 2007), 497 F.3d 1360, 1376.
{¶ 59} When the attorney-client relationship has been put at issue by a claim for legal fees or by a claim that the attorney breached a duty owed to the client, good cause exists for the production of attorney work product to the extent necessary to collect those fees or to defend against the client's claim. See Holmgren v. State Farm Mut. Auto. Ins. Co. (C.A.9, 1992), 976 F.2d 573, 577 ("We agree with the several courts and commentators that have concluded that opinion work product may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling"); Morrow v. Brown, Todd Heybum (Ky. 1997), 957 S.W.2d 722, 726 ("While an attorney's private thoughts are most certainly deserving of special protection, that concern for privacy must give way when the activities of counsel are directly at issue in subsequent litigation"); 20 Wright Kane, Federal Practice Procedure Deskbook (2009), Section 87 ("It also has been held that opinion work product is discoverable if the strategy and mental impressions of a party's agents and attorneys are directly at issue in the case and the information could not be obtained elsewhere"); Restatement (Third) of the Law Governing Lawyers, Section 92, Comment c ("A party who asserts that a lawyer's assistance was defective may not invoke work-product immunity to prevent an opposing party's access to information concerning the claim"); Anderson, Cadieux, Hays, Hingerty Kaplan, The Work Product Doctrine (1983), 68 Cornell L. Rev. 760, 831 ("When an attorney's mental impressions, theories, or conclusions are `at issue' in a suit, courts have held that the documents containing these thoughts are discoverable").
{¶ 60} Thus, 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.
{¶ 61} Here, attorney work product, including information sought from King and Garfinkel regarding the staffing of the butter-flavor litigation, trial strategy, resources committed, and views that the firm provided inadequate representation through counsel lacking sufficient leadership, qualification, and experience, is directly at issue, since the reasonable value of the legal services performed by Squire Sanders and the quality of its legal work are the pivotal issues in this lawsuit, and the need for this evidence is compelling. See Morrow, 957 S.W.2d at 726 ("We are of the view that the opinion work product sought to be discovered must be directed to the pivotal issue in the subsequent litigation and the need for the material must be compelling").
{¶ 62} In propounding its interrogatories and in questioning King and Garfinkel, Squire Sanders sought the factual bases underlying Givaudan's allegations that Squire Sanders had breached its contractual and professional duties and overcharged for its services. King and Garfinkel's mental impressions regarding the defense of the butter-flavor litigation relate directly to and are necessary for determining the truth of these allegations, because their evaluation of Squire Sanders' performance allegedly shaped Givaudan's decisions on how to defend the litigation and on whether to continue the representation and pay the firm's fees. This information is otherwise unavailable to Squire Sanders because it is within the exclusive possession and knowledge of Givaudan, King, and Garfinkel.
{¶ 63} Accordingly, testimony of King and Garfinkel and documents related to the value and quality of the legal services rendered by Squire Sanders are not protected from discovery in this case by the work-product doctrine.
Conclusion
{¶ 64} Ohio recognizes a common law self-protection exception to the attorney-client privilege codified in R.C. 2317.02(A). Thus, when the attorney-client relationship has been placed at issue in litigation between an attorney and a client or a former client, the self-protection exception permits discovery of the evidence necessary to establish a claim or defense on behalf of the attorney.
{¶ 65} Similarly, good cause exists for discovery of otherwise unavailable attorney work product to the extent that the work product has been placed at issue in litigation by a claim for legal fees or by a charge that the attorney breached a duty owed to the client.
{¶ 66} Accordingly, the judgment of the court of appeals is reversed, and the cause is remanded to the trial court, which has already made a finding of good cause requiring Givaudan to produce the requested documents, testimony, and other evidence. Therefore, the trial court is instructed to conduct further proceedings consistent with this opinion and its earlier journalized orders.
Judgment reversed and cause remanded.
PFEIFER, LUNDBERG STRATTON, O'CONNOR, and CUPP, JJ., concur.
LANZINGER, J., concurs in judgment only.
BROWN. C.J., not participating.
LANZINGER, J., concurring in judgment only.
{¶ 67} I concur in judgment only because I cannot agree with the distinction the majority makes between exceptions to and waivers of the attorney-client privilege in order to circumvent this court's holding in Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 854 N.E.2d 487. I did not agree in Jackson that R.C. 2317.02(A) abrogates the common-law privilege. Id. at ¶ 25 (Lanzinger, J., concurring in judgment only). Therefore, I have no problem with recognizing a common-law exception to the attorney-client privilege.
{¶ 68} However, in its attempt to distinguish waiver from exception, the majority uses overly broad language and declares that an exception "falls into the category of situations in which the privilege does not attach to the communications in the first instance and is therefore excluded from the operation of [R.C. 2317.02]." What the majority fails to recognize is that an exception, like a waiver, arises because of some action taken by the client. It is only when the client puts the attorney's representation at issue that the privilege no longer applies. The majority, however, would retroactively apply that action and hold that the privilege never existed.
{¶ 69} Because I believe that common-law exceptions are really no different than common-law waivers, I concur in judgment only.