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OHIOAndrew R. KwiatkowskiDINSMORE & SHOHL, LLP255 E. Fifth St., Suite 1900Cincinnati, Ohio 45202Phone: (513) 977-8680www.dinsmore.comandrew.kwiatkowski@dinsmore.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Like many states, Ohio courts recognize the attorney client privilege and work productdoctrine in the context of pre-suit investigations. The attorney-client privilege is the mostdifficult to overcome, so it is prudent to involve outside independent counsel early in anyinvestigation process. Materials prepared in anticipation of litigation or trial can beconsidered privileged pursuant to the work-product doctrine, but this may be overcomeby a showing of substantial need of the requesting party and an inability to obtain theinformation without undue hardship. Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, 30 (1st Dist.). Other than a privilege for proceedings and records of a“peer review committee” of a health care entity under O.R.C. § 2305.252 in actionsagainst a health care entity, Ohio courts have not yet recognized any type of “selfcriticalanalysis” privilege that would protect pre-suit investigation materials. Ohio courtshave, so far, declined to pass judgment on whether such a privilege is recognized inOhio. Geggie v. Cooper Tire & Rubber Co., 3rd Dist. Hancock No. 5-05-01, 2005-Ohio-4750, 30 (noting that the “self-evaluating privilege has yet to be recognized in Ohio.”).2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?Ohio courts have held that the attorney client privilege protects statements that aregiven to one’s counsel for the purpose of defending a lawsuit. Joyce v. Rough, 6th Dist.Lucas No. L-09-1089, 2009-Ohio-5731, 9. Investigators should turn over theirdocuments to their attorney after the investigation in order to strengthen a claim ofprivilege. See Hunter v. Wal-Mart Stores, Inc., 12th Dist. Clinton No. CA2001-10-035,2002-Ohio-2604, 38-39. Be aware, however, that if a statement is otherwisediscoverable, merely sending the statement to one’s counsel may not be enough toestablish the privilege. Harpster v. Advanced Elastomer Sys., L.P., 9th Dist. Summit No.22684, 2005-Ohio-6919, 14, 21 (materials created in ordinary course of business,where defendant failed to establish that the investigation was actually conducted ordirected by its counsel, were deemed not privileged).3. Does your state recognize a self-critical analysis privilege?