Supreme Court of Ohio Clerk of Court - Filed December 27, 2016 - Case No. 2016-1586

IN THE SUPREME COURT OF OHIO

GOODRICH CORPORATION : Case No. 2016-1586 : , Appellee, Cross-Appellant : On Appeal from the Summit County : Court of Appeals, Ninth Appellate District vs. : : POLYONE CORPORATION AND : WESTLAKE CHEMICAL CORPORATION : Court of Appeals : Case No. 27691 , Appellee / Appellant & Cross- : Appellee : :

WESTLAKE CHEMICAL CORPORATION’S MEMORANDUM IN RESPONSE TO GOODRICH’S ARGUMENTS IN SUPPORT OF FOR ITS CROSS- APPEAL

Samuel D. Hinkle IV (PHV-4996-2016) Adam T. Goebel (0095358) (Designated Counsel of Record) Stoll Keenon Ogden PLLC 500 West Jefferson Street 2000 PNC Plaza Louisville, KY 40202 (502) 333-6000

John Weisensell (0029901) Niekamp, Weisensell, Mutersbaugh & Mastrantonio LLP 23 South Main Street Third Floor Akron, OH 44308 (330) 434-1000

David A. Super (PHV-4999-2016) Baker Botts, LLP 1299 Pennsylvania Ave., NW Washington, D.C. 20004-2400 (202) 639-7768

Westlake Chemical Corporation

i Clair E. Dickinson, Esq. Paul K. Stockman, Esq. Lucas M. Blower, Esq. Branden P. Moore, Esq. Brouse McDowell McGuire Woods, LLP 388 South Main Street, Suite 500 625 Liberty Avenue, 23rd Floor, Akron, Ohio 44311 Pittsburgh, PA 15222 [email protected] [email protected] [email protected] [email protected]

Attorneys for Appellee / Cross-Appellant Attorneys for Appellee Goodrich Corporation PolyOne Corporation

ii TABLE OF CONTENTS

GOODRICH’S CROSS-APPEAL DOES NOT PRESENT ISSUES OF PUBLIC OR GREAT GENERAL INTEREST ...... 1

COUNTERSTATEMENT OF THE CASE AND FACTS...... 3

ARGUMENTS IN OPPOSITION TO GOODRICH’S PROPOSED PROPOSITIONS OF LAW...... 6

Goodrich’s First Proposed Proposition of Law: An Independent Tort Exists Under Ohio Law For The Unauthorized, Unprivileged Disclosure of Nonpublic Information That Is Within The Attorney-Client Privilege, Work Product Protection, Or -Negotiation Confidentiality, And A Third Party Can Be Held Liable For Inducing Unauthorized, Unprivileged Disclosure Of Such Nonpublic Information...... 6

Goodrich’s Second Proposed Proposition of Law: Inducement Of A Violation Of The Attorney-Client Privilege, Work Product Protection, Or Confidentiality of Settlement Negotiations Causes “Tortious Injury” Within The Meaning Of Section 2307.382(A)(6) Of The Ohio Revised Code And Rule 4.3(A)(9) Of The Ohio Rules of Civil Procedure...... 6

Goodrich’s Third Proposed Proposition of Law: Ohio Courts Can Exercise Long-Arm Jurisdiction Over Actions For Injunctive Relief Intended To Prevent Tortious Injury To The Same Extent They Can Exercise Long-Arm Jurisdiction Over Actions In Which The Plaintiff Is Seeking Based On Tortious Injury That Has Already Occurred...... 6

A. It Is Not Necessary For The Court To Recognize A New Tort ...... 7

B. Even If A Tort Were Recognized, It Would Have No Effect On Whether There Is Over Westlake Chemical ...... 9

CONCLUSION ...... 11

CERTIFICATE OF SERVICE ...... 12

iii GOODRICH’S CROSS-APPEAL DOES NOT PRESENT ISSUES OF PUBLIC OR GREAT GENERAL INTEREST

Appellee / Cross-Appellant Goodrich Corporation (“Goodrich”), a New York corporation with its principal place of business in North Carolina, is asking this Court to hold that a party has committed a tort in Ohio, and is therefore subject to personal jurisdiction here, when that party has moved for, and obtained, orders for the production of documents in an arbitration pending in Louisville, Kentucky. Goodrich’s position is patently frivolous, has no legal basis and its cross-appeal should be rejected outright.

Here, Westlake Vinyls, Inc. (“Westlake Vinyls”),1 in a properly convened arbitration proceeding in Louisville, Kentucky, moved for, and obtained, three separate orders requiring the other party to the arbitration, PolyOne Corporation (“PolyOne”), to produce certain documents and information in its possession related to insurance recoveries for environmental contamination at a site in Kentucky. As the arbitration panel (“Panel”) ruled, PolyOne was obligated to produce the documents and information pursuant to, among other things, a settlement agreement among Westlake Vinyls, PolyOne and Goodrich. PolyOne vehemently opposed the production of documents and information, and Goodrich intervened in the arbitration so that it could also oppose the production of documents and information. Despite a demand from the Panel to do so, Goodrich never provided a privilege log specifically identifying the documents and information being withheld and the basis for its claim of alleged privilege over the documents and information. The Panel rejected the arguments of Goodrich and

1 Goodrich filed the against Westlake Chemical Corporation (“Westlake Chemical”), the parent company of Westlake Vinyls. As recognized by the court, Westlake Chemical was not a party to the arbitration in Louisville, Kentucky, and it did not seek or obtain the discovery orders from the arbitration that are at issue. As Westlake Chemical did not take any action relating to the production of records, it is not a party that may be named as a in this lawsuit. 1 PolyOne, and it issued three separate orders requiring PolyOne to produce the documents and information. Goodrich then filed the instant lawsuit in the Court of Common Pleas in Summit

County, Ohio. As the trial court and the Court of Appeals, Ninth Appellate District (“Court of

Appeals”) found, Goodrich’s is nothing more than a discovery dispute in which

Goodrich seeks an to prevent the production of documents by PolyOne to Westlake

Vinyls. Furthermore, as stated, Goodrich has never justified its claims of privilege by providing a log or any other evidence to support its claims.

Goodrich’s cross-appeal and its proposed propositions of law would require this Court to find, solely based upon Goodrich’s unsupported claims of privilege, that the discovery orders issued by the Panel sitting in Louisville, Kentucky constitute a tort. Such a holding would then lead to the absurd conclusion that orders issued by tribunals, including courts, for the production of documents can be tortious if any party believes that the documents are subject to the attorney- client or other privilege. It would also mean that litigants who disagree with a claim of privilege, and successfully obtain a ruling in their favor, are potentially liable for “inducing” the invasion of the attorney-client privilege. This would lead to ludicrous and unnecessary litigation – including against any tribunal with authority to issue such discovery orders. Goodrich’s frivolous propositions are not issues of public or great general interest.

Finally, Goodrich’s arguments ignore the fact that the Summit County Court of Common

Pleas found that Westlake Vinyls, not Westlake Chemical, is the party to the arbitration that sought and obtained the discovery rulings. Accordingly, under no circumstances can Westlake

Chemical be the party that committed the alleged wrongful acts constituting the tort alleged by

Goodrich. Thus, any finding of a tort committed here (and there was none, as confirmed by the

Court of Appeals) would not have been a tort committed by Westlake Chemical – the party

2 against which Goodrich filed the action and the dismissal of whom Goodrich seeks to overturn.

Therefore, there is no reason to address Goodrich’s proposed propositions of law because those questions have no impact on the ultimate result, which is that Westlake Chemical was properly dismissed and that the dismissal was correctly affirmed.

COUNTERSTATEMENT OF THE CASE AND FACTS

For several years, Goodrich and PolyOne have been involved in a dispute against

Westlake Vinyls concerning environmental costs at the former BFGoodrich Industrial Complex located in Calvert City, Kentucky (the “Site”). See e.g., Goodrich Corp. v. Commercial Union

Ins. Co., 9th Dist. Summit Nos. 23585 & 23586, 2008 Ohio App. LEXIS 2716, at *48 (June 30,

2008) (considering Goodrich’s ability to recover costs related to the Site from its insurers and referring to Goodrich’s dispute against Westlake Vinyls and PolyOne’s contractual obligation to assume Goodrich’s liabilities at the Site). In this case, Westlake Vinyls and PolyOne were parties to an arbitration pending in Louisville, Kentucky (the “Kentucky Arbitration”). In general, the Kentucky Arbitration concerned the allocation of certain environmental costs incurred by PolyOne in connection with the Site.

In the Kentucky Arbitration, PolyOne refused to provide certain documents and information to Westlake Vinyls. As set forth above, Westlake Vinyls was entitled to the documents pursuant to the terms of a settlement agreement among Westlake Vinyls, PolyOne and Goodrich. As a result, Westlake Vinyls moved the Panel to order the production of the documents. The Panel ordered PolyOne to produce the documents and information.

Although it was not a party to the arbitration, Goodrich claimed an interest in the documents and information in PolyOne’s possession. Therefore, Goodrich intervened in the

Kentucky Arbitration for the purpose of objecting to PolyOne being ordered to produce the documents and information. Goodrich claimed that the documents were privileged. However, 3 despite being ordered to do so, Goodrich refused to provide a privilege log for the Panel to evaluate Goodrich’s claims of privilege. To this day, Goodrich has provided only vague and conclusory statements concerning the documents and information it claims are privileged. See, e.g., Goodrich’s Memorandum in Support of Jurisdiction for the Cross-Appeal at 8 (stating that

Westlake Vinyls was “granted an order from the arbitration panel purporting to require PolyOne to produce certain documents and information in its possession belonging to Goodrich, including documents and information protected by the attorney-client privilege, work product protection, or settlement-negotiation confidentiality”). The Panel rejected Goodrich’s arguments and, once again, ordered PolyOne to produce the documents and information. The Panel issued a total of three orders requiring PolyOne to produce the documents and information in its possession.

Goodrich then filed this lawsuit in the Court of Common Pleas in Summit County, Ohio, naming as defendants, among others, PolyOne and Westlake Chemical. Westlake Chemical is

Westlake Vinyls’ parent. By and in its , Westlake Chemical raised the defenses of lack of personal jurisdiction (Rule 12(B)(2)) and the failure to join an indispensable party (Rule

12(B)(7)). Specifically, in its motion to dismiss, Westlake Chemical asserted that the trial court did not have personal jurisdiction over it and that the entire case must be dismissed because the trial court could not join the proper and indispensable party—Westlake Vinyls—because the court did not have personal jurisdiction over Westlake Vinyls. As stated above, it was Westlake

Vinyls that obtained the discovery orders at issue and had the right to enforce them, while

Goodrich and PolyOne have vigorously resisted the production of the documents and information in PolyOne’s possession. The trial court agreed with Westlake Chemical and held that (1) it lacked personal jurisdiction over Westlake Chemical and (2) the entire lawsuit must be

4 dismissed because Westlake Vinyls is an indispensable party to the action that cannot be joined due to a lack of personal jurisdiction.

On the issue of its lack of personal jurisdiction over Westlake Chemical, the trial court rejected Goodrich’s argument that Westlake Chemical’s conduct constituted a tort in Ohio that subjected Westlake Chemical to personal jurisdiction under Ohio’s long-arm statute. Trial Court

Opinion at 6. The trial court held that it could think “of no circumstance under which [the] facts constitute tortuous conduct.” Id. The trial court found that the action was not one for damages for injury to a person or a breach of a duty owed to Goodrich and, thus, there was no “tortious injury.” Id. at 7. Moreover, the trial court found that Westlake Chemical had not taken any action and that even if it had taken an action, such action was not done with the purpose of injuring a person in Ohio, as Goodrich is a New York corporation with its principal place of business in North Carolina. Id. The trial court also found that Westlake Chemical did not conduct any activity in Ohio related to the action and had, therefore, not availed itself to the privilege of acting in Ohio. Id. at 8.

On appeal, the Court of Appeals held that the trial court correctly determined that it did not have personal jurisdiction over Westlake Chemical. Specifically, the Court of Appeals held that Goodrich had not asserted a tort action, which is a “civil action for damages for injury, death, or loss to person or property.” Court of Appeals Decision and Journal Entry2 at ¶ 15

(quoting R.C. 2307.011(J)). Like the trial court, the Court of Appeals found that Goodrich’s action was, at its core, a discovery dispute arising from the Kentucky Arbitration. Id. Like the trial court, the Court of Appeals stated that it could “think of no circumstance under which

2 A copy of the Decision and Journal Entry of the Court of Appeals is attached to the Memorandum in Support of Jurisdiction of Appellant Westlake Chemical Corporation at A-1. 5 th[e]se facts constitute tort[i]ous conduct” in Ohio and affirmed the dismissal of Westlake

Chemical for lack of personal jurisdiction. Id.

Goodrich now attempts to appeal that portion of the Court of Appeals’ Decision and

Journal Entry affirming the trial court’s dismissal of Westlake Chemical for lack of personal jurisdiction.

ARGUMENTS IN OPPOSITION TO GOODRICH’S PROPOSED PROPOSITIONS OF LAW

Goodrich’s First Proposed Proposition of Law: An Independent Tort Exists Under Ohio Law For The Unauthorized, Unprivileged Disclosure of Nonpublic Information That Is Within The Attorney-Client Privilege, Work Product Protection, Or Settlement- Negotiation Confidentiality, And A Third Party Can Be Held Liable For Inducing Unauthorized, Unprivileged Disclosure Of Such Nonpublic Information.

Goodrich’s Second Proposed Proposition of Law: Inducement Of A Violation Of The Attorney-Client Privilege, Work Product Protection, Or Confidentiality of Settlement Negotiations Causes “Tortious Injury” Within The Meaning Of Section 2307.382(A)(6) Of The Ohio Revised Code And Rule 4.3(A)(9) Of The Ohio Rules of Civil Procedure.

Goodrich’s Third Proposed Proposition of Law: Ohio Courts Can Exercise Long-Arm Jurisdiction Over Actions For Injunctive Relief Intended To Prevent Tortious Injury To The Same Extent They Can Exercise Long-Arm Jurisdiction Over Actions In Which The Plaintiff Is Seeking Damages Based On Tortious Injury That Has Already Occurred.

Goodrich asserts the above three propositions of law for its cross-appeal. Because these propositions of law build on one another and suffer from the same fatal flaws, Westlake

Chemical will discuss them together. In general terms, Goodrich claims that: (1) there is an independent tort related to disclosing information allegedly protected by the attorney-client privilege or work product doctrine (“Protected Information”) and another tort for “inducing” the disclosure of Protected Information; (2) inducing the disclosure of Protected Information causes tortious injury within the meaning of R.C. 2307.382(A)(6) and Rule 4.3(A)(9) of the Ohio Rules of Civil Procedure; and (3) Ohio courts can exercise long-arm jurisdiction over actions for

6 injunctive relief to prevent tortious injury. Goodrich’s propositions of law are wrong both under the law and facts of this case.

A. It Is Not Necessary For The Court To Recognize A New Tort

Goodrich asks this Court to take the remarkable and unprecedented step of creating independent torts for the disclosure of Protected Information as well as inducing the disclosure of

Protected Information. However, while Goodrich did claim that Westlake Chemical’s behavior was a tort, it did not ask the trial court or the Court of Appeals to recognize a new tort. In fact, in making its claims before the trial court and Court of Appeals, Goodrich failed to even cite to

Biddle v. Warren General Hospital, 86 Ohio St. 3d 395, 715 N.E.2d 518, 1999-Ohio-115 (1999), the case Goodrich now asserts is dispositive on this issue. Goodrich’s appeal should be denied on this basis alone. See, e.g., Jones v. Bonzo, 4th Dist. Lawrence No. 1977, 1991 Ohio App.

LEXIS 5228, at *17 (Oct. 30, 1991) (holding that because an issue “was neither presented to, nor determined by the trial court, appellant is precluded from raising this issue on appeal” and that to

“hold otherwise would result in the inequitable practice of deciding issues on appeal and precluding appellees from introducing evidence contrary to an issue asserted by appellant initially on appeal”).

Moreover, Goodrich’s attempt to equate a hospital’s unauthorized disclosure of confidential patient information with the type of garden-variety discovery dispute at issue here is entirely misplaced. In this case, Westlake Vinyls simply challenged Goodrich’s baseless assertion of privilege in an arbitration proceeding and obtained three separate rulings from the

Panel in its favor. Such discovery disputes occur in litigation every day throughout the country.

This is a far cry from the matter at issue in Biddle, where a hospital provided confidential patient information to its attorney without the consent of the patients and for the sole purpose of the

7 attorney soliciting patients that were eligible to file for Social Security benefits. Id. at 405.

Under these particular facts, the Court in Biddle allowed a tort claim for disclosing confidential patient information. Id. at 405-06.

Here, in marked contrast, Westlake Vinyls—in a properly convened arbitration setting— sought documents that were in PolyOne’s possession that PolyOne was required to produce to

Westlake Vinyls pursuant to the settlement agreement among Westlake Vinyls, PolyOne and

Goodrich. As recognized by the trial court, Goodrich was a party to the settlement agreement that gave Westlake Vinyls the right to receive certain insurance-related information and that provided notice that Westlake Vinyls and PolyOne could enter into arbitration proceedings regarding allocation of liability at the Site. Thus, Goodrich was aware that insurance information given to PolyOne would be shared with Westlake Vinyls, and Goodrich contractually agreed to

PolyOne waiving privilege over any information in PolyOne’s possession. The Panel, after hearing the objections of both PolyOne and Goodrich, rejected the claims of privilege and ordered PolyOne to produce the information to Westlake Vinyls.

Clearly, no tort occurs when two parties to a discovery dispute litigate that dispute and have it resolved in their proceeding. To hold otherwise would be a radical change to the litigation process that would effectively prevent the fair and efficient resolution of discovery disputes involving privilege issues. Goodrich’s new tort theory, if recognized, would lead to the absurd result that every time an arbitration panel or a court issues an order for the production of documents that another party believes are privileged, or a litigant asks the tribunal to do so, a tort has been committed. This means that courts, arbitrators and litigants would be constantly embroiled in litigation on whether seeking discovery (or issuing an order compelling it) was a

8 tort or the inducement of a tort. Goodrich’s bizarre theory is not the law in Ohio or anywhere else.

Not surprisingly, Goodrich cites no authority for the remarkable proposition that a litigant challenging an assertion of the attorney-client privilege is guilty of a tort. In fact, under circumstances far more dramatic and unusual than the run-of-the-mill circumstances here, New

York expressly rejected the kind of tort that Goodrich seeks to create. In Madden v. Creative

Services, 84 N.Y.2d 738, 646 N.E.2d 780, 781-82 (N.Y. 1995), the court dealt with a situation where third parties had actually stolen Madden’s confidential, attorney-client privileged information from Madden’s attorney’s office, and Madden sought to hold the third parties liable for a new form of tort. But even under those extreme circumstances, the court concluded that a new tort to protect a third party’s alleged intrusion into the attorney-client privilege is not

“prudent as a matter of public policy.” Id. at 785. Clearly, in this case, it would be the definition of imprudent to hold that a party challenging an assertion of privilege—something that happens every day in litigation—is now guilty of a tort.

B. Even If A Tort Were Recognized, It Would Have No Effect On Whether There Is Personal Jurisdiction Over Westlake Chemical

Goodrich’s request for this Court to create a new and unprecedented tort for a litigant exercising discovery rights in litigation is simply an attempt to create personal jurisdiction over

Westlake Chemical where none exists. In order to overturn the trial court and Court of Appeals’ decision to dismiss Westlake Chemical for lack of personal jurisdiction, this Court would have to hold that Westlake Chemical caused tortious injury in Ohio such that a court could allegedly find that personal jurisdiction exists against Westlake Chemical. See R.C. 2307.82(A)(6) (“A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a arising from the person’s . . . [c]ausing tortious injury in this state to any person by an act

9 outside this state committed with the purpose of injuring persons, when he might reasonably have expected that some person would be injured thereby in this state. . . .”); Rule 4.3(A)(9) of the Ohio Rules of Civil Procedure (same). However, as set forth above, Goodrich fails to acknowledge that Westlake Chemical has never been a party to the Kentucky Arbitration and that Westlake Chemical did not seek the orders compelling PolyOne to produce documents. This was a finding of the trial court, and it was not disturbed by the Court of Appeals. Thus, aside from having no legal basis whatsoever, Goodrich’s argument regarding the creation of a new tort is futile in that such a tort would have no effect on whether the court has personal jurisdiction over Westlake Chemical. In short, because Westlake Chemical did nothing to seek disclosure of the allegedly privileged documents and information at issue (and Goodrich fails to specifically allege otherwise), the recognition of a new-fangled tort in this case would have no effect on whether Westlake Chemical is subject to personal jurisdiction in Ohio.

In addition, as also recognized by the trial court, even assuming that such a tort did exist and that it could be considered to have been committed by Westlake Chemical—both of which are false—R.C. 2307.382(A)(6) and Rule 4.3(A)(9) require that an alleged “tortious injury” be found in Ohio. The only party that has alleged any injury is Goodrich. The trial court ruled that

Goodrich is a New York corporation with it principal place of business in North Carolina and is thus not a citizen of Ohio, a holding that was not disturbed by the Court of Appeals. Thus, any alleged injury, even if there was a tort, did not occur in Ohio. Consequently, the relief that

Goodrich seeks with its appeal—to have a new tort recognized for disclosing or inducing the disclosure of allegedly privileged information in a litigation setting—would not under any circumstance support a finding of personal jurisdiction over Westlake Chemical. Goodrich’s

10 proposed propositions of law are utterly without legal basis, and plainly do not present issues of public or great general interest.

CONCLUSION

For the reasons discussed above, Goodrich’s cross-appeal does not involve issues of public or great general interest. The Court should not accept jurisdiction of the cross-appeal.

Respectfully submitted,

_/s/ Adam T. Goebel______Samuel D. Hinkle IV (PHV-4996-2016) Adam T. Goebel (0095358) (Designated Counsel of Record) Stoll Keenon Ogden PLLC 500 West Jefferson Street 2000 PNC Plaza Louisville, KY 40202 (502) 333-6000

John Weisensell (0029901) Niekamp, Weisensell, Mutersbaugh & Mastrantonio LLP 23 South Main Street Third Floor Akron, OH 44308 (330) 434-1000

David A. Super (PHV-4997-2016) Baker Botts, LLP 1299 Pennsylvania Ave., NW Washington, D.C. 20004-2400 (202) 639-7768

Attorneys for Appellant Westlake Chemical Corporation

11 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was sent this 27th day of December, 2016, by regular U.S. mail and e-mail to the following:

Clair E. Dickinson, Esq. Paul K. Stockman, Esq. Lucas M. Blower, Esq. Branden P. Moore, Esq. Brouse McDowell McGuire Woods, LLP 388 South Main Street, Suite 500 625 Liberty Avenue, 23rd Floor, Akron, Ohio 44311 Pittsburgh, PA 15222 [email protected] [email protected] [email protected] [email protected]

Attorneys for Goodrich Corporation Attorneys for PolyOne Corporation

_/s/ Adam T. Goebel______Attorney for Westlake Chemical Corporation

1432862

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