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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

Eddy v. Farmers Property Cas. Ins. Co.

Ohio Supreme Court

• Citations: 2026 Ohio 626
• Docket Number: 2024-0623

• Judges: DeWine, J.

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (23K)

• PDF

Syllabus

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).

Combined Opinion

[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.

---

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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{¶ 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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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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{¶ 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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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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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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1. 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.
2. 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).
3. 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.

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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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