IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4}(C},
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: DECEMBER 15, 2016
NOT TO BE PUBLISHED
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BOBBY REYNOLDS AND PHAEDRA APPELLANTS
SPRADLIN, UNITED STATES BANKRUPTCY
TRUSTEE FOR BOBBY REYNOLDS
ON APPEAL FROM COURT OF APPEALS
V. 2015-CA-OO 1898
PERRY CIRCUIT COURT, NO. 15-CI-00589
HONORABLE ALISON C. WELLS, JUDGE, APPELLEE
PERRY CIRCUIT COURT
AND
3M COMPANY AND MINE SAFETY REAL PARTIES IN INTEREST
APPLIANCES COMPANY
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Bobby Reynolds appeals a ruling by the Court of Appeals denying his
original action for interlocutory relief. The Court of Appeals denied Reynolds's
petition for Writ of Prohibition because it determined Reynolds failed to meet
his burden of establishing attorney-client privilege. We likewise agree that
Reynolds did not meet his burden of proof, and we affirm the Court of Appeals'
ruling denying him the writ.
I. FACTUAL AND PROCEDURAL BACKGROUND.
In 2005, Bobby Reynolds and a group of coal miners filed a products-
liability suit against manufacturers of respiratory-protection devices, including
Real Party in Interest 3M Co (3M). Last year, 3M moved for summary judgment,
alleging that Reynolds's claim was barred by judicial estoppel because he failed
to disclose this potential claim as an asset in a prior personal bankruptcy
proceeding. In turn, Reynolds opposed summary judgment for two reasons: (1)
he sought and was granted leave to reopen his bankruptcy proceeding to
amend his schedule to include the claim, an amendment, he asserts relates
back to the original filing; and (2) 3M did not establish that his failure to
include the claim was not inadvertent. The trial court accordingly denied 3M's
motion for summary judgment with leave to refile following further discovery.
3M then served discovery requests on Reynolds in an attempt to flesh out
when he first consulted with and retained an attorney for his products-liability
claim. Reynolds objected to the discovery request, asserting that the
information is not discoverable as a matter of the attorney-client privilege. 3M
moved to compel discovery. [Reynolds produced a privilege log but failed to
allow in camera review of the documents.] The trial court granted 3M's motion
to compel discovery because Reynolds failed to prove the documents at issue
were privileged.
Reynolds filed an original action in the Court of Appeals seeking a Writ of
Prohibition to prohibit the trial court from enforcing its order compelling
discovery. The Court of Appeals denied his petition, also agreeing that Reynolds
failed to meet his burden of establishing the attorney-client privilege applied to
these documents. He now appeals to this Court as a matter of right and asks
2
that we reverse the Court of Appeals' opinion and, in tum, issue the writ.
Because the Court of Appeals' decision was based on a sound assessment of
Kentucky evidence law, we affirm the ruling below.
II. ANALYSIS.
A. The Writ Standard.
When ruling on a writ petition, we must first determine whether a writ is
appropriate. Only then will we look to the merits of the petition to review the
lower court's decision. A decision to issue a writ is completely within this
Court's discretion. 1 A writ is an extraordinary remedy and is one we apply with
great caution. We have recognized two specific situations where this type of
relief is appropriate:
[U]pon a showing that (1) the lower court is proceeding or is about
to proceed outside of its jurisdiction and there is no remedy
through an application to an intermediate court; or (2) that the
lower court is acting or is about to act erroneously, although
within its jurisdiction, and there exists no adequate remedy by
appeal or otherwise and great injustice and irreparable injury will
result if petition is not granted.2
No one disputes that the trial court is acting within its jurisdiction managing
the discovery process in Reynolds's case. So Reynolds's writ claim is premised
entirely on this second class of writs, available only in instances where there is
no adequate appellate remedy and when "great injustice and irreparable injury
is sure to result from the lower court proceeding. "3
1 Hoskins v. Maricle, 150 S.W.3d 1, 5 (Ky. 2004).
2 Id. at 10.
3 Id.
3
Disclosure of privileged information is a paradigmatic example of the
precise type of case contemplated by the "special cases" subcategory of the
second-class writ. This is the case despite no irreparable injury to the
petitioner personally because, "where privileged information is in danger of
being disclosed, there is no adequate remedy on appeal."4 The disclosure of
privileged information is a bell that cannot be un-rung; once it is revealed it
cannot be recalled. We agree that this case satisfies our objective writ
standard. But we now turn to the merits of the trial court's ruling to determine
whether Reynolds in fact established that the information was privileged.
Kentucky Rules of Evidence (KRE) 503 offers a comprehensive
declaration regarding the attorney-client privilege under Kentucky law. The
rule states, in relevant part, as follows:
(b) General rule of privilege. A client has a privilege to refuse to
disclose and to prevent any other person from disclosing a
confidential communication made for the purpose of facilitating the
rendition of professional legal services to the client:
(1) Between the client or a representative of the client and the
client's lawyer or a representative of the lawyer;
(2) Between the lawyer and a representative of the lawyer;
(3) By the client or a representative of the client or the client's
lawyer or a representative of the lawyer to a lawyer or a
representative of a lawyer representing another party in a
pending action and concerning a matter of common interest
therein;
(4) Between representatives of the client or between the client and
a representative of the client; or
(5) Among lawyers and their representatives representing the same
client.
(c) Who may claim the privilege. The privilege may be claimed by
the client, the client's guardian or conservator, the personal
representative of a deceased client, or the successor, trustee, or
similar representative of a corporation, association, or other
4 3M Co. v. Engle, 328 S.W.3d 184, 188 (Ky. 2010).
4
organization, whether or not in existence. The person who has
the lawyer or the lawyer's representative at the time of the
communication is presumed to have authority to claim the
privilege but only on behalf of the client.
As the Court of Appeals correctly stated, the attorney-client privilege only
shields from disclosure confidential communications made for the purpose of
legal advice. s This is limited to communications made to the attorney; it does
not cover "any facts or claims reported to the attorney from all discovery."6 This
is an admittedly tight rope to walk, but it is not unknown for this Court to deny
writ petitions on the basis of privilege when the petitioner has failed to meet his
burden of proof. We have steadfastly made clear that the party claiming
privilege bears the burden of proof in proving its applicability. 7 This is primarily
because testimonial privileges, such as the attorney-client privilege, are
disfavored.8 And finally, lower court rulings on privileged information are
entitled no deference and reviewed de novo. 9
To prove the existence of a privileged communication, the proponent
must show that it was: (1) between a lawyer and client; (2) intended to be kept
confidential; and (3) made for the purpose of facilitating rendition of legal
services to the client. 10 And it is the proponent's duty to offer sufficient detail to
each supposedly privileged document to persuade the court that the
information in question is not discoverable.
s See Lexi.ngton Pub. Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002).
6 Collins v. Braden, 384 S.W.3d 154, 159 (Ky. 2012).
7 Stidham v. Clark, 74 S.W.3d 719, 725 (Ky. 2002).
s See id. at 722-23.
9 See Lexi.ngton Public Library, 90 S.W.3d at 62.
10 See Collins, 384 S.W.3d at 161.
5
Reynolds failed to present for in camera review any of his privileged
information in any of the courts below. Instead, he offered only a simple
privilege log detailing the relevant pieces as follows:
1. Information :questionnaire sheet filled out for Hollon & Collins
law firm on October 29, 2004.
2. Retainer contract with Hollon & Collins signed May 16, 2005.
3. Letter from Hollon & Collins advising that a lawsuit had been
filed, dated November 1, 2005.
To be sure, there is nothing requiring Reynolds to present his privileged
information for in camera review; it is simply one method of proof. But his
privilege log must assure a reviewing court that the documents contain
confidential communications related to obtaining legal advice. Reynolds must
do more than simply provide document titles and declare the entirety of their
contents privileged. The types of forms involved in this case themselves are not
per se privileged, so we need some explanation of the substantive contents
before we can authoritatively find the documents not discoverable.
We agree with the Court of Appeals that Reynolds has not done enough
to prove the existence of privilege in the documents in question. For the first
document-the client questionnaire-the lower Court was correct that
Reynolds offers nothing to explain the nature of the information included in the
sheet. Client intake questionnaires are not facially privileged; as 3M points out,
a federal court ruled such forms are often only incident to an attorney's
representation and not confidential. 11 We do not dispute that privileged
information may in fact be found in Reynolds's answers to the questionnaire.
11 See United States v. Leonard-Allen, 739 F.3d 948, 952-53 (7th Cir. 2013). The
federal court in question, of course, reached its determination based on the Federal
Rules of Evidence. But the federal rules relating to the attorney-client privilege bear
striking similarities to KRE 503.
6
But we have no way of knowing either way. So we must agree with the Court of
Appeals that Reynolds failed to meet his burden on that item.
As for the retainer agreement, we likewise conclude Reynolds missed his
mark. We reaffirm that the mere fact of representation is not privileged.12
Though we reserve comment on 3M's notion for a general rule on the
unprivileged nature of retainer agreements per se, we concur that Reynolds has
made no showing to overcome our presumption against privileged evidence. In
other words, Reynolds has offered us no basis for concluding that the contents
of the contract include anything beyond a mere declaration of representation
between Reynolds and his counsel-a fact that is not a confidential
communication nor within the scope of KRE 503.
And finally, we agree with the Court of Appeals that the letter from
Collins to Reynolds advising him that a suit had been filed is discoverable. The
filing of a lawsuit is a matter of public record. 13 Public information does not
become privileged simply from the act of an attorney commemorating it in a
letter to a client. If there is any information within the letter advising Reynolds
of legal opinions, strategy, etc., Reynolds should have offered a more robust
privilege log fully apprising the trial court that the letter contained confidential
information.
Because we must ultimately determine that Reynolds failed to prove the
privileged nature of the communications with his attorney, a writ of prohibition
is unavailable in this case. With such bare-bones information regarding the
12 See United States v. Haddad, 527 F.2d 537, 538 (6th Cir. 1975).
13 See Kentucky Revised Statutes (KRS) 61.870(1)(e) and 61.872.
7
nature of the potential disclosures, we have no choice but to affirm the Court of
Appeals' decision to deny the writ.
III. CONCLUSION.
For the foregoing reasons we affirm the Court of Appeals and deny
Reynolds's petition for a writ of prohibition against the trial court's order to
compel discovery.
All sitting. All concur.
COUNSEL FOR APPELLANT: BOBBY REYNOLDS
Nathaniel Leslie Collins
Collins, Collins & Conley, PSC
COUNSEL FOR APPELLANT: PHAEDRA SPRADLIN, UNITED STATES
BANKRUPTCY TRUSTEE FOR BOBBY REYNOLDS
Michael Conley
Conley Law Office, PLLC
Alison Courtney Wells, Judge, Perry Circuit Court
COUNSEL FOR REAL PARTY IN INTEREST: 3M COMPANY
Byron N. Miller
Michael J. Bender
Thompson, Miller & Simpson, PLC
Bryant Jonathan Spann
Thomas, Combs & Spann, PLLC
COUNSEL FOR REAL PARTY IN INTEREST: MINE SAFETY APPLIANCES
COMPANY
Milton Trent Spurlock
Dinsmore & Shohl, LLP
8