Bobby Reynolds v. Hon Alison C. Wells Judge, Perry Circuit Court
2016 SC 000134
| Ky. | Dec 14, 2016Background
- In 2005 Reynolds and other miners sued manufacturers (including 3M) for defective respiratory-protection devices. 3M later moved for summary judgment, asserting Reynolds’s claim was judicially estopped because he failed to list the claim in an earlier personal bankruptcy filing.
- Reynolds had reopened his bankruptcy proceeding and amended his schedule to include the claim; he argued the amendment related back and that 3M had not shown his omission was noninadvertent. The trial court denied 3M’s summary-judgment motion, permitting further discovery.
- 3M served discovery seeking when Reynolds first consulted and retained counsel for the products-liability claim. Reynolds objected invoking the attorney–client privilege and produced a minimal privilege log rather than submitting documents for in camera review.
- The trial court granted 3M’s motion to compel, finding Reynolds failed to prove the documents were privileged. Reynolds sought a writ of prohibition from the Court of Appeals to prevent disclosure; the Court of Appeals denied the writ for the same reason.
- The Kentucky Supreme Court granted discretionary review of the writ question, held that a writ was an appropriate procedural vehicle because disclosure of privileged information can be irreparable, but affirmed the denial of the writ on the merits because Reynolds failed to meet the burden of proving privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a writ of prohibition is appropriate to prevent compelled discovery of allegedly privileged material | Reynolds: disclosure of privileged attorney–client materials is irreparable and warrants a writ | 3M: trial court has jurisdiction over discovery; appellate remedies adequate only after irreparable disclosure | Court: writ appropriate in special cases where disclosure of privileged material would be irreparable; here standard met to reach merits |
| Who bears burden to prove attorney–client privilege and standard of review | Reynolds: documents listed on privilege log are privileged | 3M: privilege not established; mere labels insufficient | Court: claimant bears burden to show (1) communication between lawyer and client, (2) intended confidentiality, (3) made for legal advice; review is de novo |
| Whether a bare privilege log suffices instead of in camera review | Reynolds: privilege log entries are sufficient; in camera review not required | 3M: log too vague; trial court entitled to more detail or in camera review | Court: log was too conclusory — titles alone do not establish privileged content; claimant must provide sufficient detail or allow in camera review |
| Privilege status of the specific documents (intake questionnaire, retainer agreement, letter advising suit filed) | Reynolds: all three items privileged | 3M: intake and retainer are not per se privileged; letter relaying public filing is discoverable | Court: intake questionnaire might contain privileged content but log gave no detail; retainer and letter are not privileged as described (fact of representation and public filing not protected) |
Key Cases Cited
- Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004) (writ-of-prohibition standards)
- 3M Co. v. Engle, 328 S.W.3d 184 (Ky. 2010) (disclosure of privileged information can be irreparable; writ appropriate)
- Lexington Pub. Library v. Clark, 90 S.W.3d 53 (Ky. 2002) (attorney–client privilege protects confidential communications for legal advice; de novo review of privilege rulings)
- Collins v. Braden, 384 S.W.3d 154 (Ky. 2012) (elements required to prove attorney–client privilege)
- Stidham v. Clark, 74 S.W.3d 719 (Ky. 2002) (party asserting privilege bears burden of proof)