Professional Documents
Culture Documents
Now comes the Relator/Appellee, Mark W. Miller, on relation to the State of Ohio
(“Miller”), by and through undersigned counsel and hereby tenders this Motion to Dismiss the
Respectfully submitted,
I. FACTS.
This matter is before the Court on the Notice of Appeal filed by Appellants/Respondents,
City of Cincinnati (the “City”), and Cincinnati City Councilmembers Greg Landsman, Alexander
Paul George Sittenfeld, Wendell Young, Tamaya Dennard, and Christopher Seelbach (the
“Councilmembers”) (the City and the Councilmembers are jointly referred to herein as
“Appellants”). Appellants seek review of a discovery order issued by the trial court in a lawsuit
alleging violations of Ohio’s Open Meetings Act (R.C. 121.22), denying the Councilmembers’
motion for a protective order, and ordering the Councilmembers to produce responses to Miller’s
discovery requests.
On April 24, 2018, Miller served counsel for the Councilmembers with discovery requests
issued to each Councilmember. On July 2, 2018, the Councilmembers filed a Motion for a
Protective Order (the “Motion”) seeking inter alia, a stay of all discovery in the underlying
litigation (Motion P. 2), and an order to keep confidential all documents produced in discovery
meaning of R.C. 2505.02(A)(3). Summit Park Apts., LLC v. Great Lakes Reinsurance (UK), PLC,
In Great Lakes, the party opposing discovery asserted the privilege at the trial court, and
the trial court made a specific finding that the documents at issue were not subject to the privilege.
Id., ¶¶ 16-17 (10th Dist.). Conversely, in this instance, the Motion contains no claim of privilege
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and no finding by the trial court regarding the question of privilege (because that question was not
b. An issue may not be raised for the first time on Appeal or in a reply memo
“A motion, whether written or oral, shall state with particularity the grounds therefor, and
shall set forth the relief or order sought.” Civ.R.7(B)(1). “Except for subject-matter jurisdiction,
issues not raised to the trial court cannot be raised for the first time on appeal.” Mezher v. Schrand,
1st Dist. Hamilton No. C-180071, 2018-Ohio-3787, ¶ 16, citing Greenwood v. Taft, 105 Ohio
Within the context of an administrative appeal, this Court has found that when privilege is
not raised at the first opportunity it is waived. “Even if we assume that Prinz, as a health care
professional, was a holder of the privilege, he failed to raise the issue in any of the proceedings
before the board.” Prinz v. State Counselor & Social Worker Bd., 1st Dist. Hamilton APPEAL
NO. C-990200, 2000 Ohio App. LEXIS 116, at *10 (Jan. 21, 2000).
While the Councilmembers’ reply brief did include a paragraph on legislative privilege,
the Councilmembers also specifically disclaimed any attorney-client privilege with request to the
discovery requests. But, because the civil rules require that the motion shall state with particularly
the grounds for the requested relief, the question of privilege was not properly before the trial court
III. Conclusion
Because the Appellants failed to properly raise the issue of privilege to the trial court in
their Motion for a protective order, they have waived the privilege and cannot now raise the issue
for the first time on appeal. As such, this matter should be dismissed for lack of jurisdiction.
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Respectfully submitted,
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CERTIFICATE OF SERVICE
Undersigned counsel does hereby certify that a true and accurate copy of the foregoing was
served via electronic mail upon the following counsel this 7th day of November 2018:
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EXHIBIT 1