Discovery work product; common law work product protection applied in this case which is broader thatn CR 2k6.02(3)(a) which is limited to parties by its plain language

Michael J. O’Connell, Et al. v. Honorable Frederic J. Cowan, Et al.

2009-SC-000596-MR        (Original Opinion: May 20, 2010; Modified: December 16, 2010)

Opinion of the Court by Chief Justice Minton.  All sitting. Attorney, who had entered Alford plea to a criminal charge arising from threatening messages sent from his computer, filed a civil action alleging malicious prosecution and other claims against law enforcement officer and municipality after a related tampering with evidence charge was dismissed due to lack of probable cause (no evidence of tampering with computer).  Attorney sought to depose prosecutor, who was not a party to his civil action, and to obtain her entire litigation file relating to the prosecution of criminal charges against him.  Although providing attorney with some written discovery, prosecutor claimed that further discovery (including deposition and provision of remainder of litigation file) was barred due to work product protection.  After trial court ruled that attorney was entitled to the requested discovery, prosecutor unsuccessfully sought a writ to bar the discovery requests from the Court of Appeals. 

Supreme Court granted the writ.  Upon grant of rehearing, Supreme Court’s holdings include: that broader common-law work product protection applied, although facts did not technically support the application of Kentucky Civil Rule 26.02(3)(a), which provides work product protection to parties only by its plain language.

Supreme Court further held that, in light of circumstances unique to prosecutors, discovery of a prosecutor’s opinion work product was permitted only if the requestor met a heightened standard of showing a compelling need for the discovery.  Thus, Supreme Court reversed Court of Appeals, with directions to instruct trial court on remand to re-evaluate the request for discovery of prosecutor’s opinion work product under the heightened “compelling need” standard and conduct an in camera review of the material before permitting discovery of such information. Justice Schroder concurred in result only.

Open Records Requests and Disclosure to Parties in Litigation

The following SCOKY decision addressed open records requests by parties involved in litigation:

Department of Revenue, Finance and Administration Cabinet, Commonwealth of Kentucky, et al. v. Mitzi D. Wyrick

2008-SC-000468-DG October 21, 2010 2009-SC-000543-DG October 21, 2010

Opinion of the Court by Justice Schroder.  All sitting; all concur.  The Supreme Court interpreted the “civil litigation limitation” to the Open Records Law, found in KRS 61.878(1).  The Court held that a request for open records should be evaluated independently of whether the requester is a party or potential party to litigation.  The civil litigation limitation applies only to documents otherwise excluded from disclosure by KRS 61.878(1)(a)-(n).  It is not an exception to an agency’s duty to disclose nonexempted records.  A court of competent jurisdiction, upon request, may grant disclosure of documents excluded from disclosure under KRS 61.878(1)(a)-(n) with one qualification:  if the document pertains to civil litigation, the court cannot order disclosure beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery.

Civil Procedure – Lack of prosecution, dismissal, discovery: Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski (SC 10/29/2009)

Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski
2008-SC-000112-DG October 29, 2009
Opinion by Chief Justice Minton; all sitting.

Plaintiffs in a tort action appealed the trial court’s grant of defendant’s motion to dismiss for lack of prosecution (CR 41.02). The Court of Appeals remanded the case back to the trial court to reconsider the motion in light of the factors set forth in Ward (1: extent of party’s personal responsibility for the delay; 2: history of dilatoriness; 3: whether attorney’s conduct is willful or in bad faith; 4: merits of plaintiff’s claim; 5: lack of availability of alternative sanctions). On remand, the trial court again granted dismissal; the Court of Appeals affirmed.

The Supreme Court affirmed, holding that when considering motions to dismiss for lack of prosecution, trial courts must consider the totality of the circumstances, not just the factors listed in Ward, and must make an explicit finding of fact.

The Court declined to create a formula to be applied mechanically in all cases. Rather, the Court opted to fashion guidelines for trial courts based on Ward and others circumstances surrounding the case. The Court reviewed the Ward factors as they applied to this dispute, and considered the other relevant factors before affirming. Justice Venters concurred by separate opinion, contending that trial courts should also consider whether the party moving for dismissal has taken steps towards resolving the case prior to moving to dismiss— likening the situation to where criminal defendants must assert their right to a speedy trial before claiming it has been violated.

TORTS – TP Negligence claim and workers comp injury, experts, impaired earning capacity, discovery sanctions: Boland-Maloney Lumber Company, Inc. v. Burnett (COA 9/11/2009)

Boland-Maloney Lumber Company, Inc. v. Burnett
2008-CA-000059 9/11/09 2009 WL 2901206 DR pending

Opinion by Judge Wine; Judges Acree and Stumbo concurred. The Court affirmed on direct appeal and reversed on cross-appeal a judgment of the circuit court entered subsequent to a jury verdict in favor of the injured person in a negligence action involving an injury occurring on a staircase.

The Court first held that the trial court did not abuse its discretion in allowing the matter to proceed to the jury absent expert testimony on the defendant’s duty. The uniformity of stair risers on a stairway is an abundantly apparent standard, even among laypersons, so that anyone could interpret the exceptional foreseeability of risk. The Court then held that the trial court did not err in refusing to allow any apportionment of fault to a subcontractor. The right to apportionment did not extend to the subcontractor that had been determined not to be liable as a matter of law. The Court then held that the trial court had the inherent authority to enforce its orders and therefore, did not err in refusing to grant a motion to allow expert testimony when the defendant failed to disclose the experts after an order was entered that no additional discovery would be allowed. The Court then held that the trial court did not abuse its discretion in allowing testimony from an economic expert concerning the injured person’s earning capacity. Although the testimony was not based on actual earnings at the time of injury, nothing precluded testimony on the impairment to earn money or the use of a “proxy” to do so, where current earnings were not indicative of earning power. The Court then held that the trial court did not err in allowing testimony in violation of an order that the plaintiff’s witnesses could not testify that the stairs violated the Kentucky Building Code. The defendant waived the issue when it failed to object to the testimony at trial, defendant’s counsel brought up the reference to the Kentucky Building Code, and the testimony was not in violation of the order. The Court then held that the defendant’s failure to specifically object to the final written instructions precluded review but even so, although the present case was not a premises liability case, the use of the term “unreasonably dangerous” was often found instructed in cases other than products liability when dealing with an ordinary care standard so that the trial court did not abuse its discretion in including the instruction. The Court finally held that the trial court erred in excluding evidence related to plaintiff’s claim for future prescription medication expenses. Although there was no expert testimony as to the amount of medication required or the likely cost of the medication over the remainder of the plaintiff’s lifetime, the plaintiff entered the yearly cost of the prescription drugs by avowal and the doctors testified that the plaintiff suffered from a seizure disorder which would likely require him to take medication for the remainder of his life. The Court reversed and remanded for a determination on the sole issue of future prescription medication expenses.

CIVIL PROCEDURE: Dismissal under CR 41.02 and Ward v. Housman factors: Mullins v. Redford Township (COA 9/25/2009)

Mullins v. Redford Township
2008-CA-001818 9/25/09 2009 WL 3048907

Opinion by Senior Judge Lambert; Judges Clayton and Thompson concurred.

The Court reversed and remanded for further proceedings an order of the circuit court dismissing appellant’s claims, under various theories of recovery, against two Michigan townships and police officers. Appellant claimed that police officers traveled to his home in Kentucky, arrested him, and forcibly transported him to Michigan where he was incarcerated for two weeks. The Court held that the dismissal under CR 41.02 for appellant’s failure to comply with a scheduling order was improper without consideration of the factors enumerated in Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991), and findings that dismissal was warranted in light of those factors The Court rejected appellees’ argument that consideration of the factors could be presumed.

CIVIL PROCEDURE – Sanctions (excluding witnesses) for missing court ordered deadline: LeBlanc v. Dorten (COA 9/18/2009)

LeBlanc v. Dorten
2008-CA-001574 9/18/09 2009 WL 2971760 DR pending
Opinion by Judge Lambert; Judge Acree and Senior Judge Harris concurred.

The Court affirmed a jury verdict in appellee’s favor on appellant’s claims related to a motor vehicle accident. The Court first held that the trial court did not abuse its discretion in excluding witnesses and evidence submitted after a court-ordered deadline. The court’s decision was directly related to appellant’s failure to comply with the discovery deadlines and thus, the sanction clearly bore a direct relationship to the defect and was not unreasonable or capricious. Further, CR 37.02(2)(b) supported the court’s sanction. The Court distinguished cases that did not involve the violation of a court order. The Court also held that appellant’s answer to interrogatories was an insufficient disclosure of his witnesses. The Court next held that the trial court did not err in denying rebuttal evidence. Appellee presented no evidence at trial and therefore, there was nothing to rebut. The Court finally held that the trial court did not err in denying appellant’s motion for a new trial. Appellant’s avowal testimony, taken without an oath in the presence of a judge, was not uncontradicted evidence of perjury.

CRIMINAL PROCEDURE: Discovery, subpoena, fishing expedition: Commonwealth of Kentucky v. Lennie G. House (SC 8/27/2009)

Commonwealth of Kentucky v. Lennie G. House
2008-SC-000114-DG August 27, 2009
Opinion by Justice Abramson. All sitting; all concur.

House entered a conditional guilty plea to DUI charges, reserving his right to appeal the district court’s ruling that quashed his subpoena duces tecum for the computer source code of the Intoxilyzer 5000—the device used by police to measure alcohol concentration in the bloodstream. The Court of Appeals reversed the conviction. On appeal to the Supreme Court, House argued that his expert should be allowed to review the source code for programming “bugs” that could lead to inaccurate results.

The Supreme Court reversed the Court of Appeals and reinstated the conviction, holding that House had produced no evidence whatsoever to suggest the source code was flawed and that the subpoena amounted to an impermissible “fishing expedition.” Because House did not file a cross-motion for discretionary review, the Court declined to address his argument that the Confrontation Clause of the Sixth Amendment entitled him to access the source code.

CRIMINAL PROCEDURE – Discovery – no duty to compel defendant’s expert to prepare report: Commonwealth v. David Nichols (SC 3/19/2009)

Commonwealth v. David Nichols
007-SC-000493-DG March 19, 2009
Opinion by Justice Cunningham; all sitting, all concur.

Prior to trial, Nichols moved the Circuit Court for clarification of his obligation under RCr 7.24. Specifically, Nichols argued that he should not be required to disclose the identity of his expert witness or provide a report of the expert’s expected testimony since the expert had not prepared any reports. The trial court entered an order stating that although Nichols was required to identify his expert, as long as the expert had not prepared a report, there was no obligation to generate one solely to satisfy the rules of discovery. On interlocutory appeal, the Court of Appeals affirmed the trial court’s ruling that the expert was not required to generate a report, but held on Nichols’ cross-appeal that the trial court abused its discretion by ordering Nichols to disclose the identity of the expert.

The Supreme Court reinstated the trial court’s order, holding that to require Nichols to prepare a report that would likely be used against him solely to comply with reciprocal discovery violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, as well as Section 11 of the Kentucky Constitution. The Supreme Court also held that the Court of Appeals was without jurisdiction to hear Nichols’ interlocutory cross-appeal since KRS 22A.020 only provides for interlocutory appeals by the Commonwealth. (Note: this opinion includes a concise history of the development of criminal discovery law in Kentucky.)

EVIDENCE – Attorney work product & Statements obtained in anticipation of litigation : Tom Duffy, Sr. et al v. Hon. Karen L. Wilson, et al. (SC 3/19/2009)

Tom Duffy, Sr. et al v. Hon. Karen L. Wilson, et al.
2008-SC-000507-MR March 19, 2009
Opinion by Justice Venters; all sitting.

Ryan Owens died following football practice at Henderson County High School. Two weeks later, an adjuster for the school board’s insurer conducted interviews with witnesses. Present at the interviews were two attorneys for the school board, one of whom (Wilson) made statements to the effect that he was not hired to sue or defend anyone. Owens’ estate subsequently brought a wrongful death suit against the coaches and school board officials. The estate sought to compel production of the statements. The trial court granted the motion to compel concluding that the statements were not privileged attorney work product under CR 26.02(3) because, based on Wilson’s remarks, they were not made in anticipation of litigation. The trial court further held that even if the statements were considered attorney work product, they would still be discoverable since the estate had a substantial need for the statements and would be unable to otherwise obtain them without undue hardship since the witnesses’ memories would not be as clear as they were at the time of the interviews. The Court of Appeals affirmed, and the defendants sought a writ of prohibition blocking execution of the trial court’s order to compel from the Supreme Court.

The Supreme Court reversed the Court of Appeals and ordered it to enter the writ, concluding that the statements were attorney work product as they were “clearly” taken in anticipation of litigation. The Court stated that Wilson’s disclaimer, while truthful, was not a conclusive admission that litigation was not anticipated. The Court further held that the estate had not shown that it was unable to obtain a substantial equivalent of the statements without undue hardship; noting that the estate had presented no compelling argument that the witnesses’ memories had substantially deteriorated since the time of the incident.

In his dissent, Justice Cunningham wrote that common sense dictates that statements taken from witnesses within two weeks of the incident are not equivalent in quality or veracity to those taken six months later.

CIVIL PROCEDURE & DAMAGES aka FRATZKE – counsel waived strict CR 8.01(2) damages interrogatories by deposing on damages: James B. Tennill, Sr. v. Cyrus M. Talai (SC 2/19/2009)

James B. Tennill, Sr. v. Cyrus M. Talai
2007-SC-000046-DG 2/19/2009
2007-SC-000673-DG 2/19/2009
Opinion by Justice Schroder; all sitting.

Tennill received a default judgment against Talai for personal injuries suffered in a motor vehicle accident. Prior to a hearing on the issue of damages, Talai propounded written interrogatories to Tennill and took Tennill's deposition. The trial court took evidence on damages and awarded Tennill $45,076. The Court of Appeals reversed the damages award on the grounds that since Tennill did not respond or object to Talai's written interrogatories, he was in violation of CR 8.01(2). Following the rule in Fratzke, the Court of Appeals held that Tennill's failure to specify unliquidated damages in response to written interrogatories amounts to an effective answer that his claim for unliquidated damages was zero dollars. The Supreme Court reinstated the damages award, distinguishing the case from Fratzke. The Court noted that unlike Fratzke, Tennill's failure to respond to interrogatories was harmless since Tennill's counsel waived strict compliance with CR 8.01(2) when he deposed Tennill on the issue of damages but failed to ask about Tennill's unliquidated damages claim.