Eddy v. Farmers Property Cas. Ins. Co.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Eddy

v. Farmers Property Cas. Ins. Co., Slip Opinion No. 2026-Ohio-626.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2026-OHIO-626

EDDY ET AL., APPELLEES, v. FARMERS PROPERTY CASUALTY INSURANCE

COMPANY, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as Eddy v. Farmers Property Cas. Ins. Co., Slip Opinion No.

2026-Ohio-626.]

Attorney-client privilege—Work-product doctrine—Court orders granting motions

to compel insurance companies to produce claims files protected by

attorney-client privilege based on allegations of bad faith, fraud, or

criminal misconduct must comply with R.C. 2317.02(A)(2)—Civ.R.

26(B)(4) presumptively protects work product, which may be disclosed only

upon a showing of good cause—Judgment reversed and cause remanded to

trial court to comply with R.C. 2317.02(A)(2) and Civ.R. 26(B)(4).

(No. 2024-0623—Submitted June 4, 2025—Decided February 26, 2026.)

APPEAL from the Court of Appeals for Hamilton County,

No. C-230298, 2024-Ohio-1047.

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SUPREME COURT OF OHIO

DEWINE, J., authored the opinion of the court, which KENNEDY, C.J., and

DETERS, HAWKINS, and SHANAHAN, JJ., joined. FISCHER and BRUNNER, JJ.,

dissented and would dismiss the appeal as having been improvidently accepted.

DEWINE, J.

{¶ 1} A trial court ordered an insurance company to produce claims-file

documents that the company contends are protected by the attorney-client privilege

and work-product doctrine. The First District Court of Appeals upheld the trial

court’s order, reasoning that the documents were subject to discovery because the

insureds had alleged that the company acted in bad faith by dragging its feet before

settling their claim. 2024-Ohio-1047, ¶ 3 (1st Dist.). In ordering production of the

documents, the appeals court relied on a 2001 decision of this court, Boone v.

Vanliner Ins. Co., 2001-Ohio-27, which created an exception to the attorney-client

privilege in an insurer-bad-faith case for materials created prior to an insurance

company’s denial of coverage. Id.

{¶ 2} The insurance company presents two objections. First, it says that this

case is different from Boone, and that the court of appeals erred in extending that

decision. Notably, here, the contested documents were created while the insurance

company was engaged in litigation with its insureds, while Boone dealt with

documents created before litigation had commenced. Second, the insurance

company argues that the Boone decision has been superseded by a statutory

enactment, R.C. 2317.02(A)(2), which requires that before ordering production of

attorney-client documents, a trial court must determine that the insured has made a

prima facie showing of bad faith and conduct an in camera review to determine if

the requested materials are related to bad-faith misconduct.

{¶ 3} We agree that the Boone decision has been superseded by statute. The

disclosure of confidential attorney-client communications in an insurer-bad-faith

case is controlled by R.C. 2317.02(A)(2). Attorney-client communications are

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subject to discovery only upon a prima facie showing of bad faith, and only to the

extent that the court, upon an in camera inspection, determines that the

communications “are related to the attorney’s aiding or furthering an ongoing or

future commission of bad faith by the client.” R.C. 2317.02(A)(2).

{¶ 4} The disclosure of work-product is governed by Civil Rule 26(B)(4),

which presumptively protects from discovery materials “prepared in anticipation of

litigation” and allows for disclosure “only upon a showing of good cause therefor.”

{¶ 5} Applying these principles, we reverse the judgment of the court of

appeals and remand the matter to the trial court to conduct an in camera review to

determine if the documents at issue are protected by the attorney-client privilege or

work-product doctrine.

I. BACKGROUND

A. A Car Accident and Two Lawsuits

{¶ 6} In 2020, Melissa and Alexis Eddy were involved in a car accident.

The Eddys were not at fault, and the other driver’s insurer ultimately paid the Eddys

$100,000, the policy limit of that driver’s liability-insurance policy. Because the

Eddys did not believe that this payment fully compensated them for their injuries,

they turned for additional recovery to their own underinsured motorist (“UIM”)

policy—a policy that was issued by Farmers Property Casualty Insurance Company

(“Farmers”).

{¶ 7} The Eddys’ UIM policy had a limit of $250,000, and the Eddys sought

to recover $150,000—the difference between the $100,000 payment they had

already received and their Farmers UIM policy limit. Farmers countered with an

offer of $33,312. After negotiations stalled, the Eddys sued Farmers for breach of

contract in August 2021. This lawsuit (“the coverage lawsuit”) did not assert a

claim for bad faith on the part of Farmers.

{¶ 8} Ultimately, Farmers agreed to pay the Eddys the $150,000 they

demanded. According to Farmers, it agreed to the settlement as the result of being

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presented with new medical information showing the extent of Melissa Eddy’s

injuries. Farmers issued a check to the Eddys for $150,000 on April 11, 2022, and

the coverage lawsuit was dismissed in May 2022.

{¶ 9} A couple of months later, the Eddys filed a new lawsuit against

Farmers, alleging bad-faith misconduct in the handling of their claim. They

asserted that Farmers “delayed the resolution of [their] claim in bad faith,” causing

them to “face[] long term uncertainty as to their financial future [and] emotional

and mental pain and distress.” They also sought punitive damages, claiming that

Farmers “acted recklessly, maliciously, knowingly, and/or intentionally.”

B. The Discovery Dispute

{¶ 10} During discovery in the bad-faith action, the Eddys sought to obtain

Farmers’ entire claims file regarding their UIM claim. Farmers produced most of

its claims file but refused to produce documents created from August 27, 2021 (the

date on which the Eddys filed their coverage lawsuit) through April 11, 2022 (the

date Farmers issued its check resolving the UIM claim). The issue was litigated

after a motion to compel discovery was filed by the Eddys. The Eddys argued that

they were entitled to the complete claims file. Farmers maintained that producing

the contested documents “would involve production of Farmers communications

with counsel after litigation was initiated and its work-product in defending the

lawsuit filed by Plaintiffs.” While the motion to compel was pending, Farmers

provided the Eddys with a privilege log. The log identified 20 withheld documents

and briefly described each document and the privilege claimed.

{¶ 11} The trial court held a hearing on the motion to compel. At the

hearing, Farmers argued that it had no obligation to produce documents that were

placed in the claims file after the Eddys filed their coverage lawsuit. It also argued

that before the court could order production of claims-file materials, the court was

required to conduct an in camera review of the documents.

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January Term, 2026

{¶ 12} The trial court issued an order granting the motion to compel.

Relevant to the claims file, the order provided that Farmers must “produce the entire

unredacted claim file up to the benefit-payment date of 04/11/22, which is the date

of the check for underinsured benefits to Plaintiffs.” Hamilton C.P. No. A2202476,

1 (May 2, 2023). Although the court had indicated at the hearing that it believed

an in camera review of the claims-file materials was required, the court did not

order an in camera inspection. See id.

C. The First District Affirms the Trial Court’s Order

{¶ 13} Farmers appealed to the First District, arguing that the trial court

erred by ordering production of the entire claims file for dates after the Eddys filed

their coverage lawsuit. In its view, once litigation commenced, claims-file

materials were shielded from discovery. In the alternative, it argued that even if

claims-file materials produced after the coverage litigation began could be subject

to discovery, the trial court erred by failing to comply with the requirements of R.C.

2317.02(A)(2).

{¶ 14} The First District held that claims-file materials was discoverable up

until the date that benefits were paid, reasoning that the Eddys’ assertion that

Farmers delayed payment in bad faith was a sufficient basis to remove the

protections of the attorney-client privilege and work-product doctrine. 2024-Ohio-

1047 at ¶ 31 (1st Dist.). The court declined to reach Farmers’ argument that the

trial court erred by not complying with R.C. 2317.02(A)’s requirement of a prima

facie showing of bad faith and an in camera inspection before ordering the release

of claims-file materials. Id. at ¶ 31. Instead, it rejected Farmers’ argument based

on an issue that neither party had raised in its briefing in that court. Id. It held that

Farmers had failed to assert its claims of privilege in sufficient detail to meet its

burden under Civ.R. 26(B)(8). Id. at ¶ 29-35. That rule requires that “[w]hen

information subject to discovery is withheld on a claim that it is privileged or

subject to protection as trial preparation materials, the claim shall be made

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expressly and shall be supported by a description of the nature of the documents,

communications, or things not produced that is sufficient to enable the demanding

party to contest the claim.” Civ.R. 26(B)(8)(a). The court reasoned that because

Farmers did not meet this initial burden, neither a prima facie showing of bad faith

nor an in camera review was required. 2024-Ohio-1047 at ¶ 31, 35-36 (1st Dist.).

II. LEGAL FRAMEWORK

{¶ 15} This case involves both the attorney-client privilege and the work-

product doctrine. It requires us to apply those doctrines as well as decide the

continued viability of this court’s decision in Boone. So we begin our analysis by

explaining the legal principles that undergird this dispute.

A. The Attorney-Client Privilege

{¶ 16} The law has long recognized that communications between an

attorney and client for the purpose of obtaining legal advice are subject to privilege

and may not be disclosed without the consent of the client. See Spitzer v. Stillings,

109 Ohio St. 297, 302 (1924). The attorney-client privilege encourages “‘full and

frank communication’” between attorneys and clients because “sound legal

advice . . . depends on the lawyer’s being fully informed by the client.” State ex

rel. Leslie v. Ohio Hous. Fin. Agency, 2005-Ohio-1508, ¶ 20, quoting Upjohn Co.

v. United States, 449 U.S. 383, 389 (1981). The privilege has ancient roots; it “can

be traced back at least as far as the reign of Elizabeth I, where the privilege was

already well established.” Moskovitz v. Mt. Sinai Med. Ctr., 1994-Ohio-324, ¶ 79.

{¶ 17} Ohio codified the privilege in 1853 as part of its first Code of

Procedure. See Spitzer at 304. Soon thereafter, this court acknowledged the

General Assembly’s authority to modify the common-law privilege through

statutory enactment. King v. Barrett, 11 Ohio St. 261, 263-264 (1860). Today the

privilege is codified in R.C. 2317.02(A).

{¶ 18} Despite the statutory enactment, we have held that common-law

principles may be relevant in applying the privilege to areas in which the legislature

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January Term, 2026

has not legislated. See, e.g., Leslie at ¶ 18 (“In Ohio, the attorney-client privilege

is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in

R.C.2317.02(A), by common law.”). Evid.R. 501 provides, “The privilege of

a . . . person . . . shall be governed by statute enacted by the General Assembly or

by principles of common law as interpreted by the courts of this state in the light of

reason and experience.” Thus, we have generally understood that when the

legislature prescribes specific rules for application of the privilege, those rules

control. See Spitzer at 302 (attorney-client privilege is “clearly a matter of policy,

and within the power of legislators to change, or even abrogate entirely”). But

where the legislature has not weighed in, common-law principles determine the

contours of the privilege. See State ex rel. Hunt v. Fronizer, 77 Ohio St.7, 16 (1907)

(“the General Assembly will not be presumed to have intended to abrogate a settled

rule of the common law unless the language used in a statute clearly imports such

intention”); Mandelbaum v. Mandelbaum, 2009-Ohio-1222, ¶ 29 (“the absence of

language [that would codify the common law] does not demonstrate that the

General Assembly intended to abrogate what had become well-established law”

[emphasis added]).

1. Ohio’s Judicially-Created Exception to the Attorney-Client Privilege

{¶ 19} At issue in this case is a judicially created exception to the attorney-

client privilege for materials relating to bad-faith conduct by an insurance company

in denying a claim. To understand the exception, one needs to begin with

Moskovitz, 1994-Ohio-324. That case addressed R.C. 1343.03(C), which allows a

prevailing plaintiff in a tort case to recover prejudgment interest upon a showing

that the plaintiff had made a good-faith effort to settle the case and the defendant

had not. Id. at 657. Under the statute, the prejudgment-interest proceeding occurs

posttrial: a motion for prejudgment interest may be filed only after the entry of

judgment on the underlying tort claim. Id. at ¶ 65.

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{¶ 20} The Moskovitz court observed that determining whether a defendant

made a good-faith effort to settle requires a review of the settlement efforts of the

defendant’s insurance carrier and that evidence about such efforts would often be

found in the insurer’s claims file. Id. at ¶ 72. Although the claims file might contain

attorney-client communications, the Moskovitz court noted that the privilege was

not absolute and that, historically, the privilege did not protect advice related to

fraudulent conduct. Id. at ¶ 79. Equating the historical crime-fraud exception to

the lack of a good-faith effort to settle, the court concluded that “[d]ocuments and

other things showing the lack of a good faith effort to settle by a party or the

attorneys acting on his or her behalf are wholly unworthy of the protections

afforded by any claimed privilege.” Id. at ¶ 80. Thus, the court held that “only

privileged matters contained in the [claims] file . . . that go directly to the theory of

defense of the underlying case” are entitled to protection. Id. at ¶ 84. The court

ordered the trial court to conduct an in camera review of the claims file to determine

which items were entitled to protection. Id. at ¶ 85.

{¶ 21} The Moskovitz decision effected an expansive remaking of the law

on privilege. The court based its holding neither on an established common-law

exception to the privilege nor on the privilege statute. Rather, the court seemed to

presume that its common-law authority granted it the power to craft new doctrine.

But see Rogers v. Tennessee, 532 U.S. 451, 471-478 (Scalia, J., dissenting)

(explaining that at common law, judging was traditionally understood not as the

power to change the law or to make the law but to look to prior judicial opinions as

evidence of a custom that formed part of the common law). Moskovitz was also

surprising in that it premised its decision on the notion that “things showing the lack

of a good faith effort to settle by a party or the attorneys acting on his or her behalf

are wholly unworthy of the protections afforded by any claimed privilege,” but

seemed to hold that a mere allegation of bad faith was sufficient to displace attorney

client and work-product protections. (Emphasis added). Moskovitz at 661.

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January Term, 2026

{¶ 22} Moskovitz dealt with a postjudgment proceeding for prejudgment

interest under a specific statutory provision, R.C. 1343.03(C). But in Boone, this

court extended Moskovitz even further. The Boone court concluded that the same

policy rationale that it had found persuasive for prejudgment-interest claims in

Moskovitz applied generally to claims asserting that an insurance company failed

to settle a claim in bad faith—that is, that “claims file materials that show an

insurer’s lack of good faith in denying coverage are unworthy of protection.”

Boone, 2001-Ohio-27, at ¶ 18. The court expressly limited its holding to “claims

file materials . . . that were created prior to the denial of coverage,” on the basis that

such files would not contain work-product materials, because at that point “it ha[d]

not yet been determined whether coverage exists.” Id. at ¶ 19. After announcing

its new rule, the court proceeded to review each challenged item to determine which

of the documents should be disclosed. Id. at ¶ 20-24. It ordered some documents

disclosed, but protected from discovery documents that “contain[ed] attorney-client

communications and/or work product that were created after coverage was denied.”

Id. at ¶ 25.

{¶ 23} Justice Cook, joined by Justices Moyer and Stratton, dissented. Id.

at ¶ 27. She explained that the majority’s new exception to the attorney-client

privilege could not be justified as an application of the common-law crime-fraud

exception to the privilege. Id. at ¶ 30 (Cook, J., dissenting). She pointed out that

an insurer’s lack of reasonable justification for denying a claim did not equate to

fraud, which requires a false statement with an intent to mislead. Id. at ¶ 31 (Cook,

J., dissenting). Justice Cook also warned that the “majority’s holding [was]

startling for its practical effect,” allowing a mere allegation of privilege to upset

the traditional protections afforded to attorney-client communications. Id. at ¶ 32

(Cook, J., dissenting). The majority’s new rule, she worried, would undermine the

honest communication between an attorney and client that the privilege was

designed to protect because “[a]n insurance company that seeks legal advice from

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an attorney about a coverage issue will now have to consider the possibility that

those communications will be subject to future disclosure in the event that coverage

is denied and the insured commences a bad-faith lawsuit.” Id. at ¶ 34 (Cook, J.,

dissenting). A respected insurance treatise was even more pointed in its criticism:

Boone “is contrary to settled law throughout the country, and other jurisdictions

ought not to follow it.” 2 New Appleman Insurance Bad Faith Litigation, §

16.04[4][a][1][B][iii]; see also Richmond, Appleman: Current Critical Issues in

Insurance Law, IV(C) (Aug. 2011) (Boone is “astonishingly wrong” for, among

other reasons, “abrogat[ing] the widely accepted and long-held view that an insured

cannot pierce an insurer’s attorney-client privilege and work product immunity

simply by alleging bad faith”).

2. R.C. 2317.02

{¶ 24} Following the Boone decision, the General Assembly in 2007

modified the privilege statute to deal explicitly with claims of insurer bad faith.

Today the statute provides that an attorney

shall not testify . . . concerning a communication made to the

attorney by a client in that relationship or the attorney’s advice to a

client, except that if the client is an insurance company, the attorney

may be compelled to testify, subject to an in camera inspection by a

court, about communications made by the client to the attorney or

by the attorney to the client that are related to the attorney’s aiding

or furthering an ongoing or future commission of bad faith by the

client, if the party seeking disclosure of the communications has

made a prima-facie showing of bad faith, fraud, or criminal

misconduct by the client.

(Emphasis added.) R.C. 2317.02(A)(2).

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January Term, 2026

{¶ 25} At the same time, the General Assembly enacted uncodified

language making clear that the provision was intended to modify this court’s

caselaw:

SECTION 6. The General Assembly declares that the attorney-

client privilege is a substantial right and that it is the public policy

of Ohio that all communications between an attorney and a client in

that relation are worthy of the protection of privilege. . . . The

common law established in Boone v. Vanliner Ins. Co. [2001-Ohio-

27], Moskovitz [1994-Ohio-324], and Peyko v. Frederick (1986), 25

Ohio St.3d 164, is modified accordingly to provide for judicial

review regarding the privilege.

2006 Am.Sub.S.B. No. 117 (effective Oct. 31, 2007).

3. R.C. 2317.02(A)(2) Applies to this Dispute

{¶ 26} Farmers argues both that the court of appeals went too far in

extending Boone and that the trial court should have followed the requirements of

R.C. 2317.02(A)(2). So we turn to the threshold question: Does R.C. 2317.02(A)

apply to this dispute?

{¶ 27} The Eddys argue that R.C. 2317.02 only applies to “attorney

testimony . . . sought in discovery or at trial” and not to documentary evidence.

Farmers argues that the statute encompasses not only attorney testimony, but also

documents containing attorney-client communications. Both sides can muster

some authority for their view. Compare Grace v. Mastruserio, 2007-Ohio-3942,

¶17 (1st Dist.) (“A plain reading of the statute clearly limits the statute’s application

to cases in which a party is seeking to compel testimony of an attorney for trial or

at a deposition”) with Martin v. Martin, 2012-Ohio-4889, ¶ 26 (11th Dist.) (“The

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statutory privilege, which is testimonial in nature, protects the sought-after

communications both at trial and during the discovery process.”).

{¶ 28} Our caselaw supports the view that R.C. 2317.02(A) applies to

documentary evidence. We have long held that a statutory provision that prevents

an attorney from testifying about attorney-client communications also precludes

attempts to obtain documents that reveal those communications. See In re

Klemann, 132 Ohio St. 187 (1936). In Klemann, a party sought to subpoena a

casualty report that an insurer had transmitted to his counsel for purposes of

preparing a defense. At the time, Ohio’s attorney-client privilege was codified in

Section 11494 of the General Code and provided that an attorney “‘shall not testify

. . . concerning a communication made to him by his client in that relation, or his

advice to his client.’” Klemann at 191, quoting former G.C. 11494. We held that

the report “constitute[d] a communication from client to attorney and is privileged

against production and disclosure under Section 11494, General Code.” Id. at

syllabus.

{¶ 29} We have adhered to this understanding in subsequent years. In

Jackson v. Greger, we explained,

R.C. 2317.02(A) provides a testimonial privilege—i.e., it

prevents an attorney from testifying concerning communications

made to the attorney by a client or the attorney’s advice to a client.

A testimonial privilege applies not only to prohibit testimony at trial,

but also to protect the sought-after communications during the

discovery process. The purpose of discovery is to acquire

information for trial. Because a litigant's ultimate goal in the

discovery process is to elicit pertinent information that might be

used as testimony at trial, the discovery of attorney-client

communications necessarily jeopardizes the testimonial privilege.

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Such privileges would be of little import were they not applicable

during the discovery process.

2006-Ohio-4968, ¶ 7, fn. 1. See also Burnham v. Cleveland Clinic, 2016-Ohio-

8000, ¶17 (“the testimonial privilege is governed by R.C. 2317.02 . . . and unless a

waiver or other exception causes the privilege to not apply, it offers full protection

from discovery”); State v. Smorgala, 50 Ohio St.3d 222, 225 (1990) (holding that

drunk-driving defendant’s medical records were protected by physician-patient

privilege under R.C. 2317.02 and “there is no vacuum within which we can proceed

by common-law pronouncement”); State ex. rel. Lambdin v. Brenton, 21 Ohio St.2d

21, 23 (1970) (holding that personal-injury plaintiff’s medical records were

privileged under R.C. 2317.02 and court would not impose any common-law

exception otherwise).

{¶ 30} The current language of R.C. 2317.02(A)(2) confirms our long-held

understanding that the statutory privilege applies both to documentary evidence and

trial and deposition testimony. R.C. 2317.02(A)(2) requires an in camera

inspection before attorney-client communications related to an insurance

company’s bad faith may be disclosed. The term “in camera inspection” ordinarily

refers to a trial judge’s review of documentary evidence, not to a consideration of

a proffer of expected testimony. See Black’s Law Dictionary (12th Ed. 2024)

(defining “in camera inspection” as “a trial judge’s private consideration of

evidence”); Stull v. Summa Health Sys., 2024-Ohio-5718, ¶ 33 (ordering in camera

inspection to determine whether residency file is protected by privilege). This

understanding is buttressed by the uncodified language that references “all

communications between an attorney and a client” and that explicitly expresses an

intent to supersede this Court’s decisions in Boone and Moskovitz. (Emphasis

added.) 2006 Am.Sub.S.B. No. 117 (effective Oct. 31, 2007).

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{¶ 31} Having concluded that R.C. 2317(A)(2) applies to discovery

materials, it follows that the amended statute supersedes Boone when it comes to

application of the attorney-client privilege. In reaching its decision, the Boone

court apparently relied on its authority to identify principles of common law when

the legislature has been silent on aspects of the privilege. See Evid.R. 501. But we

have long recognized that common-law-privilege principles must give way to

statutory enactments. See King, 11 Ohio St. 261; Spitzer, 109 Ohio. St. 297. This

court’s pronouncements about the common law of privilege are “within the power

of legislators to change, or even abrogate entirely.” Id. at 302.

{¶ 32} R.C. 2317.02(A)(2) sets forth the circumstances under which an

insurance company’s communications with its attorney are subject to disclosure

(when there has been a prima facie showing of bad faith) and the conditions upon

which such disclosure shall be made (after an in camera inspection). Because the

statute provides a comprehensive framework for resolving privilege issues in the

context of insurer-bad-faith claims, it has completely abrogated our decision in

Boone as it applies to the attorney-client privilege.

B. The Work-Product Doctrine

{¶ 33} The work-product doctrine is of more recent vintage than the

attorney-client privilege, having been recognized by the United States Supreme

Court in 1947 in Hickman v. Taylor, 329 U.S. 495, 510 (1947). See Squire, Sanders

& Dempsey, L.L.P. v. Givaudan Flavors Corp, 2010-Ohio-4469, ¶ 54 (“The work-

product doctrine emanates from Hickman . . . .”). The doctrine provides a qualified

privilege, generally protecting from disclosure the “files and mental processes of

lawyers” made in anticipation of litigation. Hickman at 514. Its purpose 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

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January Term, 2026

an attorney from taking undue advantage of his adversary's industry or efforts.”

Civ.R. 26(A).

{¶ 34} As it applies to tangible materials, the work-product doctrine is set

forth in Civ.R. 26(B)(4), which provides, “[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.” The rule “places a

burden on the party seeking discovery to demonstrate good cause for the sought-

after materials. Jackson, 2006-Ohio-4968, at ¶ 16. The good-cause requirement is

met only when the work product “is directly at issue in the case, the need for the

information is compelling, and the evidence cannot be obtained elsewhere.”

Squire, Sanders & Dempsey, L.L.P., at paragraph two of the syllabus.

{¶ 35} Although the current version of R.C. 2317.02(A)(2) abrogates Boone

and Moskovitz as they apply to the attorney-client privilege, that statutory provision

only deals with attorney-client privilege, not the work-product doctrine. The Eddys

maintain that this court’s holdings in Boone and Moskovitz require the disclosure

of work-product materials when it is alleged that an insurer has engaged in a bad-

faith failure to settle. But neither case stands for that broad proposition.

{¶ 36} The holding in Moskovitz does suggest that work-product materials

that do not go directly to an attorney’s theory of the case are subject to disclosure,

but Moskovitz was specifically limited to postjudgment proceedings for

prejudgment interest in claims brought under R.C. 1343.03(C) for failure to make

a good-faith effort to settle a tort claim, Moskovitz, 1994-Ohio-324, at paragraph

three of the syllabus. Because it involved a postjudgment proceeding, the usual

concern that the disclosure of work product would impede a party’s ability to fully

investigate and present its case, see Hickman, at 510-511, applied with less force.

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{¶ 37} Boone did not import Moskovitz’s holding about the work-product

doctrine to insurer-bad-faith claims generally. As the syllabus language in Boone

makes clear, the holding of that case was limited to the attorney-client privilege.

Boone, 2001-Ohio-27, at syllabus (“In an action alleging bad faith denial of

insurance coverage, the insured is entitled to discover claims file materials

containing attorney-client communications related to the issue of coverage that

were created prior to the denial of coverage.”). Indeed, the court in Boone

specifically declined to allow the discovery of materials that it considered attorney

work product. Id. It confined its holding to materials created before the denial of

coverage because at “that stage of the claims handling, the claims file materials will

not contain work product, i.e., things prepared in anticipation of litigation, because

at that point it has not yet been determined whether coverage exists.” Id. at ¶ 19;

see also id. at syllabus.1 Thus, upon its review of the documents, the Boone court

refused to order disclosure of “documents contain[ing] attorney-client

communications and/or work product that were created after coverage was denied.”

Id. at ¶ 25.

{¶ 38} We decline to read Moskovitz or Boone broadly to create some

special exemption from the work-product doctrine for claims-file information in

insurer-bad-faith claims. The work-product doctrine applies to the claims-file

information in this case in the same manner as it applies to other materials: such

materials may be disclosed “only upon a showing of good cause therefor,” Civ.R.

26(B)(4).

1. We disagree with Boone’s assumption that work-product materials could not be created before

the denial of a claim. Presumably, an insured could threaten litigation, and an attorney could create

work product before an insurance company had made a final determination to deny a claim. See

Richmond, Appleman: Current Critical Issues in Insurance Law, at IV(C) (Aug. 2011) (opining that

Boone represents an “incredibly misguided view, principally because it wrongly assumes that an

insured cannot threaten litigation before a claim is denied”). Nevertheless, what is important to our

analysis here is the Boone court’s determination that materials it considered work product (those

created after the denial of coverage) were not subject to discovery.

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III. RESOLVING THIS DISPUTE

{¶ 39} Having clarified the applicable legal principles, we now turn to the

dispute in front of us. Farmers advances two propositions of law. First, it argues

that Boone does not apply to privileged materials created during litigation between

the insurer and the insured. Second, it argues that if Boone does apply to materials

created during litigation, trial courts are required to conduct an in camera inspection

to determine the scope of the exception to the privileges set forth in Boone.

{¶ 40} Our determination that R.C. 2317.02(A)(2) has abrogated Boone

makes resolution of these propositions straightforward. Questions of attorney-

client privilege are to be resolved under R.C. 2317.02(A)(2): privileged documents

may only be disclosed upon a prima facie showing of bad faith, and then only if

they “are related to the attorney’s aiding or furthering an ongoing or future

commission of bad faith by the client” as determined through an in camera

inspection. Questions about work-product doctrine are controlled by Civ.R.

26(B)(4): such materials may only be disclosed upon a “showing of good cause.”

A. The Court of Appeals Erred in Concluding That Farmers Forfeited Its

Claims of Privilege

{¶ 41} The court of appeals concluded that an in camera inspection was not

required because Farmers’ assertions of privilege were conclusory and failed to

satisfy its initial burden under Civ.R. 26(B)(8). 2024-Ohio-1047 at ¶ 35 (1st Dist.).

There are several problems with this determination. First, the Eddys had not argued

in the appellate court that Farmers failed to sufficiently raise its claim of privilege.

It is axiomatic that “our judicial system relies on the principle of party presentation,

and courts should ordinarily decide cases based on issues raised by the parties.”

Epcon Communities Franchising, L.L.C. v. Wilcox Dev. Group, L.L.C., 2024-Ohio-

4989, ¶ 15, citing Greenlaw v. United States, 554 U.S. 237, 243 (2008). “Under

this principle, ‘we rely on the parties to frame the issues for decision and assign to

courts the role of neutral arbiter of matters the parties present.’” Id., quoting

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Greenlaw at 237. Judges “‘call balls and strikes’; they don’t get a turn at that bat.”

Clark v. Sweeney, 607 U.S. ___, ___, 2025 WL 3260170, *1 (2025), quoting Lomax

v. Ortiz-Marquez, 590 U.S. ___, ___, 140 S.Ct. 1721, 1724 (2020). The court of

appeals erred by refusing to apply R.C. 2317.02(A)(2) and Civ.R. 26(B)(4) based

on a claim that the Eddys had not asserted in that court and to which Farmers did

not have an opportunity to respond.

{¶ 42} Nor do we understand the premise of the court of appeals’ decision.

In the trial court, Farmers repeatedly argued that claims-file materials created after

the Eddys filed their coverage lawsuit were protected by the attorney-client

privilege and the work-product doctrine. Farmers also provided to the Eddys a

privilege log detailing the documents that it was withholding and the basis for its

claimed entitlement to protection. And it requested an in camera inspection both

in its briefing in the trial court and at the hearing on the Eddys’ motion to compel.

{¶ 43} A party need only assert a claim of privilege through a description

of documents “sufficient to enable the demanding party to contest the claim.”

Civ.R. 26(B)(8)(a). The Eddys sought discovery of Farmers’ entire claims file up

to the benefit-payment date, arguing that Boone provided a broad-based exception

to the attorney-client privilege and work-product doctrine that made everything in

the file subject to discovery. Farmers resisted this broad claim, arguing that

materials created after the benefit-payment date were not subject to discovery, and

in any event, the trial court was required to comply with R.C. 2317.02(A). Farmers

provided sufficient information for the Eddys to contest its claim of privilege—a

conclusion that is evidenced by the fact that the Eddys vigorously contested

Farmers’ claim of privilege in the courts below.

{¶ 44} In a recent case that did not involve R.C. 2317.02(A), we held that

“[w]hen a privilege issue is complicated or unclear,” a court should take steps,

including, “but not limited to an in camera review” to resolve the claim of privilege,

Stull, 2024-Ohio-5718, at ¶ 31. In this case, an in camera review was not only

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January Term, 2026

necessary as a matter of sound judicial administration, it was also required by R.C.

2317.02(A)(2). The court of appeals erred by concluding that Farmers forfeited its

right to the in camera inspection by failing to raise its claim of privilege with

sufficient specificity.

B. The Court of Appeals Erred in Concluding That Farmers’ Entire Claims

File Up until the Date of Payment Was Subject to Discovery

{¶ 45} The court of appeals also erred in its conclusion that Farmers’ entire

claims file up to the date of the payment of the Eddys’ coverage claim was subject

to disclosure. 2024-Ohio-1047 at ¶ 3 (1st Dist.). As we have explained, under R.C.

2317.02(A)(2) only attorney-client communications that “are related to the

attorney’s aiding or furthering an ongoing or future commission of bad faith by the

client” fall outside the privilege. And a court may order such documents produced

only following a determination that the requesting party has made a prima facie

showing of bad faith and after an in camera inspection. Id. Thus, the court of

appeals should not have concluded that as a matter of law the attorney-client

privilege did not protect Farmers’ claims-file materials before the payment date.

Instead, it should have remanded the matter to the trial court to conduct the

appropriate inquiry under R.C. 2317.02(A)(2) as to the attorney-client privilege.

{¶ 46} Further, the work-product doctrine protects information in the claims

file that was “prepared in anticipation of litigation,” Civ.R. 26(B)(4). Although

R.C. 2317.02(A)(2) does not mandate an in camera inspection for work-product

materials, the exigencies of this case dictate that an in camera inspection is

necessary. Because the claims-file materials were prepared after the Eddys initiated

their coverage litigation, there is a strong likelihood that such items were prepared

in anticipation of litigation and are thus presumptively subject to the work-product

doctrine. Further, we are hard pressed to see how in a case like this one, a court

could comply with Rule 26(B)(4)’s good-cause requirement without conducting an

in camera review. See, e.g., Estate of Hohler v. Hohler, 2009-Ohio-7013, ¶ 3 (7th

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Dist.) (in camera review was necessary to determine if good-cause exception

applied); Sherwin-Williams v. Motley Rice, L.L.C., 2012-Ohio-809, ¶ 56 (8th Dist.)

(abuse of discretion to order disclosure of work-product materials without in

camera inspection to determine if good-cause exception applies). The trial court

should have conducted an in camera inspection to determine if the materials fell

under the work-product doctrine. To the extent that the work-product doctrine

applied, disclosure should have only been ordered upon a showing of “good cause,”

Civ.R. 26(B)(4). The court of appeals erred in upholding the trial court’s decision

to order production of Farmers’ entire claims file up to the date of settlement of the

Eddys’ coverage lawsuit.

C. We Remand This Matter to the Trial Court to Conduct the Appropriate

Inquiries under R.C. 2317.02(A) and Civ.R. 26(B)(4)

{¶ 47} We remand this matter to the trial court to comply with R.C.

2317.02(A)(2) and Civ.R. 26(B)(4). Pursuant to those requirements, the court

should proceed in the following manner on remand:

1. Determine whether the Eddys have made a prima facie showing “of bad

faith, fraud, or criminal misconduct,” R.C. 2317.02(A)(2).

2. Conduct an in camera review of the disputed portions of Farmers’ claims

file—those materials created between August 27, 2021, the date on which

the Eddys filed their coverage lawsuit, and April 11, 2022, the date on which

Farmers paid the Eddys $150,000 to settle the coverage lawsuit. In this

review, the court should identify documents that would ordinarily be

protected by the attorney-client privilege—that is, documents that evidence

“a communication made to the attorney by a client in that relationship or

the attorney’s advice to a client,” R.C. 2317.02(A)(2). The court should

also identify documents that fall under the work-product doctrine—those

“prepared in anticipation of litigation or for trial,” Civ.R. 26(B)(4).

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3. Attorney-Client Communications. If the trial court determines that the

Eddys did not make the prima facie showing of bad faith required by R.C.

2317.02(A)(2), then documents containing attorney-client communications

are not subject to disclosure. If the court determines that the Eddys made a

prima facie showing, then the court should examine the documents to

determine whether the communications “are related to the attorney’s aiding

or furthering an ongoing or future commission of bad faith by the client,”

R.C. 2317.02(A)(2). If so, the documents may be subject to disclosure.

4. Work Product. Documents that contain Civ.R. 26(B)(4) work product are

presumptively protected from disclosure. The trial court may order

disclosure of such materials “only upon a showing of good cause therefor,”

Civ.R. 26(B)(4).

5. Any documents that do not contain R.C. 2317.02(A) attorney-client

communications, or Rule 26(B)(4) work product are subject to discovery to

the extent authorized by the Civil Rules. See Civ.R. 26(B)(1) (allowing

“discovery regarding any nonprivileged matter that is relevant to any party’s

claim or redefense and proportional to the needs of the case”).

IV. CONCLUSION

{¶ 48} We reverse the judgment of the First District Court of Appeals. We

remand this matter to the trial court to comply with R.C. 2317.02(A)(2) and Civ.R.

26(B)(4) as detailed in this opinion.

Judgment reversed

and cause remanded.

__________________

Rittgers Rittgers & Nakajima, Gus J. Lazares, and Wesley M. Nakajima, for

appellees.

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Collins Roche Utley & Garner, L.L.C., Richard M. Garner, David W.

Orlandini, and Sunny L. Horacek, for appellants.

Rutter & Russin, L.L.C., Robert P. Rutter, and Robert A. Rutter, urging

affirmance for amicus curiae Ohio Association of Justice.

Cavitch, Familo & Durkin, Co., L.P.A., and Gregory E. O’Brien, urging

reversal for Ohio Insurance Institute.

Koehler Fitzgerald, L.L.C., and Timothy J. Fitzgerald, urging reversal for

amicus curiae Ohio Association of Civil Trial Attorneys.

__________________

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