## Facts

- Givaudan Flavors Corporation retained Squire, Sanders & Dempsey, L.L.P. to defend it in multiple personal-injury suits concerning alleged lung illness from butter-flavoring exposure.
- After a change in in-house leadership, Givaudan concluded the firm mishandled aspects of the litigation and billed excessive fees.
- Givaudan terminated the firm and refused to pay more than $1.8 million in unpaid invoices.
- The firm sued to recover fees; Givaudan counterclaimed for breach of contract, legal malpractice, fraud, and related claims.
- In discovery, the firm sought Givaudan’s internal documents and communications evaluating the firm’s performance and billing, and sought depositions of current and former Givaudan counsel and employees.
- Givaudan asserted attorney-client privilege and work-product protection.
- The trial court compelled production and ordered testimony regarding privileged communications tied to the fee dispute and the adequacy of the firm’s services.
- The court of appeals reversed and ordered in camera review, reasoning Ohio’s privilege statute did not contain a self-protection exception.
- The case proceeded to the Supreme Court of Ohio to determine whether a common-law self-protection exception applies notwithstanding the statutory testimonial privilege.

## Issues

1. Whether Ohio recognizes a common-law self-protection exception to attorney-client privilege that allows attorney testimony about attorney-client communications necessary to prove a fee claim or defend against malpractice or wrongdoing allegations in litigation between attorney and client, despite R.C. 2317.02(A).
2. Whether attorney work product, including mental impressions and legal theories, is discoverable in attorney-client fee/malpractice litigation, and under what standard.

## Decision

- The Supreme Court of Ohio reversed the court of appeals and remanded.
- The court held Ohio recognizes a common-law self-protection exception to attorney-client privilege in litigation between attorney and client when disclosure is necessary to establish a fee claim or defend against malpractice or other wrongdoing claims.
- The court held attorney work product may be discovered upon a showing of good cause when it is directly at issue, the need is compelling, and the evidence cannot be obtained elsewhere.
- The court directed that trial courts manage discovery through tools such as in camera review and limits tailored to what is necessary for the fee/malpractice dispute.

## Legal Principles

- Ohio recognizes a common-law self-protection exception to attorney-client privilege permitting an attorney to disclose attorney-client communications as necessary to prosecute a fee claim or defend against malpractice or other wrongdoing alleged by the client in litigation between them.
- The statutory attorney testimonial privilege in R.C. 2317.02(A) does not foreclose judicial recognition of common-law exceptions consistent with the administration of justice.
- The self-protection exception is limited to what is necessary for the attorney’s claim or defense in the attorney-client dispute; it does not authorize general disclosure of client confidences outside that context.
- Attorney work product, including mental impressions, theories, and legal conclusions, may be discovered upon good cause when (1) it is directly at issue, (2) the requesting party’s need is compelling, and (3) the evidence cannot be obtained elsewhere.
- Trial courts should use in camera review and other protective measures to separate discoverable materials from privileged or protected materials not necessary to resolve the dispute.

## Conclusion

Ohio law permits limited disclosure of otherwise privileged attorney-client communications and, upon a heightened showing, attorney work product when an attorney and client litigate fees and alleged malpractice or wrongdoing; courts must confine discovery to what is necessary and supervise disclosure through careful review and protective limitations.


Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St. 3d 161, 937 N.E.2d 533 (Ohio 2010)