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.