CLEVELAND (Legal Newsline) - An Ohio appeals court has ordered a private hearing at which plaintiffs firm Motley Rice will present the responses to Sherwin-Williams' discovery requests in a case over the theft of documents from the company.

A unanimous three-judge panel of Ohio's Eighth District Court of Appeals agreed March 1 that an in camera review of documents and communications listed on Motley Rice's privilege log is the proper step in a discovery dispute between the two sides.

A trial court had ruled Motley Rice must produce communications made by the firm to the Rhode Island Attorney General's Office, which had hired the firm to sue Sherwin-Williams and other paint companies over their manufacture of lead paint.

"Here, the trial court found that Sherwin-Williams met its burden of establishing that 'good cause' existed to order production of Motley Rice's work product," Eighth District Judge Mary Boyle wrote.

"The trial court first determined that the work product was relevant to establishing Sherwin-Williams' claims and then determined that the information was otherwise unavailable.

"But this court cannot determine how the trial court found that 'good cause' existed without conducting an in camera review. While it is true that the information is 'otherwise unavailable,' it is not certain that it is relevant without actually viewing the information."

Current federal judge Jack McConnell and Motley Rice's Rhode Island office represented several states and municipalities in the lead paint litigation, which alleged paint companies had created a public nuisance by manufacturing lead paint before its federal ban in 1978. Public nuisance claims have no statute of limitations, like product liability claims do. The suits were largely unsuccessful.

Along the way, Sherwin-Williams claims, Motley Rice obtained a PowerPoint presentation given by the company's attorneys to its board of directors. The presentation outlined litigation costs and possible coverage by its insurers.

The company said the presentation was protected by attorney-client privilege, but Stephen Walker met with Motley Rice at Cleveland Hopkins Airport in 2006 to hand over the presentation. Walker had been laid off from his job in 2005 and had formerly assisted company officers, attorneys and executives with technical and design aspects of PowerPoint presentations.

Motley Rice did not notify Walker that it could not receive documents protected by privilege, the company says.

Motley Rice attorney Fidelma Fitzpatrick testified that Neil Kelly, who was an assistant attorney general under then-AG Patrick Lynch, possibly knew about the meeting at the airport.

"Fitzpatrick would not, however, testify as to any content of the discussions she had with McConnel, (Aileen) Sprague or Kelly," Boyle wrote.

She also testified that Kelly possibly reviewed the 34-page fax she received after a 2006 telephone conversation with Walker. She presumed the fax, which has been filed under seal after a 2009 ruling in the case, was from Walker.

She also called the fax "of no value" to her case.

The fax came up during McConnell's confirmation process last year, during which Sen. John Cornyn, R-Texas, called McConnell a liar. McConnell's responses to questions about the lawsuit didn't add up, he said.

"In 2010, in his answers to written questions from the (Senate Judiciary Committee), Mr. McConnell told members, that 'I would not say I was familiar with the documents in any fashion.'

"Only a few months later, in September of 2010, this same nominee gave a deposition in an Ohio court where he testified that he was the first attorney at his firm to review the documents in question...that he had drafted a newspaper editorial citing information that had come from those documents and that portions of those documents were incorporated in a brief filed under his signature.

"Despite this obvious contradiction and given an opportunity to correct his misleading statement, Mr. McConnell unequivocally stood by his original statement to committee members."

A pretrial conference is scheduled for April 11.

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