At issue is whether materials prepared by the CASA/GAL are discoverable (obtainable by parties to the case during the formal investigation phase conducted before a trial).  The issue of discoverability is a concern for anyone who is involved in the legal process.  Discovery for purposes of litigation is governed by the Rules of Civil Procedure.  Specifically, discovery is governed by Rule 26 of the Ohio Rules of Civil Procedure.  This rule defines the general scope of discovery as well as specific types of discoverable materials.  Rule 26(B) states that, in general,

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to a claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

Civ. R. Rule 26(B)(1) (West 2002).

As such, unless there is a specific privilege, anything is discoverable if it relates to the litigation.     

To begin with, the materials that are sought during discovery must be relevant to the subject matter of the claim or defense asserted.  Id.  Relevant evidence has been defined in the Rules of Evidence as evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.”  Evid. R. Rule 401 (West 2002); see Barnett v. State, 104 Ohio St. 298 (1922) (Evidence is relevant when it tends as a matter of common experience and logic to prove a matter of consequence. In the rule, "of consequence to the determination" is an expression of materiality). 

As a general rule, the Rules of Civil Procedure concerning discovery are “designed to enable the parties to discover the true facts and to compel their disclosure wherever they may be found.”  Hickman v. Taylor, 329 U.S. 495, 506 (1947).  However, materials that are prepared for the purpose of anticipated litigation are not discoverable unless good cause is shown.  Civ. R. Rule 26(B)(3) (West 2002).  These materials are usually work product of the attorney.  These items may encompass the attorney’s general impressions, strategies for litigation, or mental impressions.  Hickman, 329 U.S. at 513.  To be privileged, a document must be originated after the facts that give rise to the litigation.  In re Keough, 151 Ohio St. 307 (1949).  Furthermore, records that are kept in the ordinary course of business are not privileged.  Id.  These may include standard reports, accounting books, or basic files.

To earn work product protection, “the material must be: (1) a document or tangible thing, (2) it must be prepared in anticipation of litigation and (3) it must have been prepared for a party or by or for his representative.”  Woodruff v. Concord City Discount Clothing Store, 1987 WL 6827 (Ohio App. 2 Dist.).  As the rule states, in order to discover privileged materials, the proponent must show good cause.  Civ. R. Rule 26(B)(3) (West 2002).  To show good cause, a court will look at the importance of the materials sought to the party seeking them in the preparation of the case and the difficulty in obtaining the materials by other means.  Hickman, 329 U.S. at 512.  It is within the discretion of the court to grant or to deny discovery of privileged materials.     

Together, Civil Procedure Rule 26(B)(1) and Evidence Rule 401, determine whether or not certain materials are in fact discoverable as they must be relevant and they must not be privileged. 

In cases where the CASA or GAL is an attorney, the above analysis is fairly simple.  Their work will typically fall within the privileged exception of attorney work product if the work product was created after the litigation commenced, it is not relevant, and does not withhold imperative facts.  However, is a court appointed lay CASA or lay GAL work product protected as well? 

In looking at analogous cases, communications between a client and a lay representative have been held protected against disclosure.  See generally Benedict v. State, 44 Ohio St. 679 (1887) (Communications between client and non-attorney who had frequently made appearances before the court in a representative capacity are protected from disclosure); Jay M. Zitter, J.D., Annotation, Privilege as to Communications Between Lay Representative in Judicial or Administrative Proceedings and Client, 31 A.L.R.4^th 1226 (1984).   Furthermore, it is arguable that a court appointed lay advocate would have similar privileges and protections as a lawyer since the court appointed advocate is working within a representative capacity. 

Conclusion

Discoverability is governed by Civil Procedure Rule 26 and its relevancy by Evidence Rule 401.  If the materials sought are work product they may protected under Rule 26(B)(3) as preparation for anticipation of litigation and may only be discoverable upon good cause shown.

Any lay CASA or GAL must also meet the conditions of Rule 26(B)(1) & (3).  Any proponent seeking discovery of lay CASA or GAL materials will have to show good cause if the materials sought are in fact relevant.