RENDERED : JUNE 17, 2010
TO BE PUBLISHED
Suyrrmr 01vurf of
2008-SC-000809-DG N
DAT[Eq-y-/od'6~~
IMA RUTH THRASHER, INDIVIDUALLY,
AND AS EXECUTRIX OF THE
ESTATES OF HOWARD THRASHER ;
AND BARRY DOUGLAS THRASHER
ON REVIEW FROM COURT OF APPEALS
V. CASE NO . 2007-CA-000797-MR
CLINTON CIRCUIT COURT NO . 93-CI-00160
TILMOND DURHAM, TERRILL DURHAM, APPELLEES
AND WALTER POWELL, III,
D/B/A DP ENTERPRISES
OPINION OF THE COURT BY JUSTICE ABRAMSON
AFFIRMING
Ima Ruth Thrasher, both individually and as the executrix of the estate
of Howard Thrasher, and Barry Douglas Thrasher appeal from an Opinion of
the Court of Appeals affirming the dismissal of the Thrashers' negligence action
against Tilmond Durham, Terrill Durham, and Walter Powell, III, d/b/a DP
Enterprises . DP Enterprises operates oil wells in Clinton County. The
Thrashers, who own and live on property near Bug, Kentucky in the vicinity of
some of the wells, alleged that DP Enterprises negligently permitted hydrogen
sulfide gas to escape from one or more of the neighboring wells and that the
gas damaged their property and caused them personal injury . A 2007 trial in
the Clinton Circuit Court resulted in a jury verdict adverse to the Thrashers
and a subsequent judgment dismissing their claims . The Thrashers contend
that the trial court erred when it would not allow them to introduce into
evidence three documents, which they sought to use to impeach a portion of
the testimony of Tilmond Durham. Agreeing with the Court of Appeals that the
trial court's ruling was not an abuse of discretion, we affirm.
RELEVANT FACTS
The Thrashers offered testimony to the effect that smoke and fumes from
DP Enterprises' wells invaded their property at various times, including in
particular the late fall of 1992 . One of the nearest wells, apparently, was a well
named Steve Jones # 1 . Tilmond Durham testified for the defense that in
September 1992 a neighboring well operator "fractured" one of its wells-that
is, according to Durham, introduced acid into the well to clear obstructions
and did so in a manner that disrupted Steve Jones # 1 . Durham testified that
as a result of the disruption Steve Jones # 1 temporarily ceased producing and
was shut down, and so could not have been releasing hydrogen sulfide, from
mid-September 1992 until late December of that year or early January 1993 .
Durham also indicated that the disruption to Steve Jones # 1 gave rise to
litigation in the United States District Court for the Western District of
Kentucky . Apparently, the attorney who represented DP Enterprises in the
federal action was also listed as one of the business's attorneys in this case. In
fact, however, that attorney had virtually nothing to do with this case, and DP
Enterprises was represented by an attorney who was not involved in the federal
case.
At some point the Thrashers sought discovery of production data and
records concerning the wells at issue, including Steve Jones # 1, from the file of
the attorney who had handled the federal litigation . In complying with the
request, current defense counsel noted that the documents he was supplying
were not his and that he did not know how or by whom they were generated .
Among those documents were the three at issue here. One of them is a graph
headed "DP Enterprises, Steve Jones # 1 Unit ." It purports to show "5-Day
Production Amounts" from early August 1992 until late December 1992 . The
graph suggests that production ceased from about September 23 until about
October 14, when it resumed and continued until close to the end of the year.
The other two documents purport to itemize, respectively, the production of
Steve Jones # 1 before and after "Fracture of Lawrence Cross #I ." The "after
fracture" itemization indicates that in October, November, and December 1992,
Steve Jones # 1 continued to produce, although at a drastically reduced rate .
The documents are all headed "Steve Jones #I," but none of them indicates an
author. The Thrashers sought to introduce this evidence of continued, albeit
reduced, production to counter Durham's testimony that Steve Jones # 1 could
not have been releasing noxious fumes in the fall of 1992 because it had been
shutdown .
DP Enterprises objected to introduction of the three documents on the
ground that they had not been authenticated, as is required by KRE 901 . The
trial court then excused the jury and convened an evidentiary hearing to give
the Thrashers an opportunity to provide authentication. They called Tilmond
Durham as a witness and asked him if he recognized the three documents . He
testified that he had never seen any of them before and did not know who made
them . The Thrashers did not otherwise pursue the issue at that point, so the
trial court sustained the defense objection and did not allow the Thrashers to
introduce the documents during their cross-examination of Durham. Later in
the trial, the Thrashers renewed their request to introduce the documents and
argued that the documents were "self-authenticating" because they had been
provided in discovery and the providing party should not be allowed to disavow
its own representations . Defense counsel noted that these documents had
expressly been provided without any representations and that the onus was
thus on the Thrashers to authenticate them. Despite over two years between
the production of the documents and the trial, the Thrashers had taken no
steps to authenticate the documents . The trial court agreed with the defense
that the documents were not self-authenticating, whereupon the Thrashers
introduced the three documents by avowal .
On appeal, the Thrashers renew their argument that the production of a
document in discovery authenticates it, and contend that the trial court erred
by ruling otherwise . Although we agree with the Thrashers that in some
circumstances the act of producing a document or other discoverable matter
will impliedly authenticate what is produced, we do not agree that the
implication arises from the mere act of production .
ANALYSIS
Production of a Writing or Other Item in Discovery Can, But Need Not,
Imply That the Item is Authentic.
As the Thrashers correctly note, the United States Supreme Court has
held, in the context of the Fifth-Amendment guarantee against compelled self-
incrimination, that the very act of responding to a subpoena can itself amount
to incriminating admissions : "`Compliance with the subpoena tacitly concedes
the existence of the papers demanded and their possession or control by the
[target of the subpoena] . It also would indicate the [target's] belief that the
papers are those described in the subpoena ."' United States v. Doe, 465 U .S .
605, 613 (1984) (quoting Fisher v. United States, 425 U.S. 391, 410 (1976)) . If
the target is in fact someone capable of authenticating the papers, then his or
her belief that they are what the subpoena has described can be said to
authenticate the papers implicitly . The implication need not arise, however, if
the target would not be able to authenticate the papers by testifying. See,
Fisher, supra (because subpoenaed taxpayer could not authenticate
accountant's report, his surrender of that report did not amount to an implied
admission concerning it) .
Other courts have applied this notion of implied authentication in the
context of civil discovery, sometimes stating the rule quite broadly . See, e.g.,
South Central Bank and Trust Company v. Citicorp Credit Services, Inc., 863 F.
Supp .~ 635, 645 (N .D . 111 . 1994) ("[P]roduction of a document amounts to an
implicit authentication of the document.") (citing United States v. Brown, 688
F.2d 1112 (7th Cir . 1982)) ; In re Greenwood Air Crash, 924 F . Supp . 1511., 1514
(S .D. Ind. 1995) . ("Production of a document by a party constitutes an implicit
authentication of that document.") (also citing Brown) . In most of these cases,
however, the person producing the document is competent to authenticate it-
a private individual producing his own papers, say, or a business's records
custodian producing the business's documents-and in those cases production
can indeed be said to imply the document's authenticity. As illustrated by
Fisher, however, parties may have in their possession or control documents
from other sources and even documents of unknown origin, which they would
not be competent to authenticate directly . It is hard to see in those
circumstances how the mere production of the document-in response, say, to
a very broad request for "everything in your possession or control having to do
with X"-implies anything about the extraneous document's authenticity .
That very scenario confronted us in Bratcher v. Commonwealth, 151
S .W.3d 332 (Ky. 2004) . In that case, the Commonwealth produced cell phone
records, one of which included an extraneous hand-written notation indicating
the location where the call originated . The Commonwealth did not know the
source of the notation . The defendant, however, sought to introduce the
notated record to prove the location from which the phone call originated .
When he was unable to authenticate the notation, he argued that it should be
deemed authenticated because the opposing party had produced it in
discovery. Rejecting that argument, this Court held that "[t]he mere fact that
the notation was present in the discovery is not a sufficient authentication or
identification so as to make the evidence admissible." Id. a t 354 .
We adhere to that holding today . Under KRE 901, a document must be
authenticated before it can be admitted into evidence. While the proponent's
burden is slight, it is nonetheless real and requires a showing "sufficient to
support a finding that the matter in question is what the proponent claims ."
KRE 901(a) ; Johnson v. Commonwealth, 134 S.W.3d 563 (Ky. 2004) . This
burden may be met in any number of ways, including circumstantial evidence
permitting an inference that the document is what it is represented to be . Id.
As discussed above, the fact that the document was produced in discovery may
give rise to an inference of authenticity where production was made by
someone competent to provide authentication, but the mere fact of production
does not suffice where that competence is lacking. Finally, we note that we
review a trial court's authenticity rulings for abuse of discretion . Id.
Here, the provenance of the documents the Thrashers sought to
introduce is a matter of pure speculation. The maker is not identified on the
face of any of the three documents, Tilmond Durham did not recognize them,
and they were provided not from a known source, but from a former attorney's
file without any indication of how or where the former attorney obtained them.
In these circumstances, we cannot say that the trial court abused its discretion
when it ruled that the documents had not been properly authenticated and, in
particular, that they had not been implicitly authenticated by being supplied in
discovery.
CONCLUSION
In sum, although we agree with the Thrashers that discovery production
can, in certain circumstances, implicitly authenticate the matter produced,
production alone of a document does not suffice in all circumstances . The trial
court was clearly within its discretion by ruling that it did not suffice here .
Accordingly, we affirm the Opinion of the Court of Appeals which affirmed the
judgment of the Clinton Circuit Court .
Minton, C .J . ; Cunningham, Noble, Schroder, and Venters, JJ., concur .
Scott, J., concurs in result only.
COUNSEL FOR APPELLANTS :
Robert E. Reeves
167 West Main Street
Suite 1310
Lexington, KY 40507
COUNSEL FOR APPELANES :
Robert S . Walker, III
Frost Brown Todd, LLC
250 West Main Street
Suite 2800
Lexington, KY 40507