In the case of Recker & Assocs. Co. v. State Dental Bd., 2019-Ohio-3268, an Ohio special master ruled that a survey generated in preparation for expected litigation is not a public record.
In this case, the Ohio State Dental Board (“Dental Board”) contracted with a private vendor to conduct a survey in anticipation of litigation with a law firm. The specific law firm with whom the Dental Board anticipated litigation against then made a public records request for the survey. The Dental Board refused to produce the survey arguing that the survey was intended to be used in preparation for trial. The law firm then initiated litigation against the Dental Board arguing that the survey was not, in fact, intended to be used in preparation for trial.
The special master agreed with the Dental Board because the law firm was unable to present any evidence refuting the Dental Board’s sworn testimony that the survey was, in fact, intended to be used in preparation for trial. As a result, the special master found that the survey amounted to a “trial preparation record,” which is specifically excluded from the definition of a public record under R.C. 149.43(A)(1)(g). The outcome of this case may have been much different had there been evidence that the survey was not intended to be used in preparation for trial.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.