O'CONNELL v. Cowan, 332 S.W.3d 34

Brightwell charged with intimidating a participant in the legal process, terroristic threatening, harassing communications, and tampering with physical evidence; police seized his computers and investigators pursued a tampering charge, later dismissed for lack of probable cause; Brightwell filed a civil action alleging, among others, abuse of process and malicious prosecution against Scott and Jeffersontown; Santry was subpoenaed to produce her litigation file and possibly testify; the Jefferson County Attorney’s Office sought to protect work product, asserting privilege; the trial court ordered broad discovery of Santry’s opinions and documents, which the Court of Appeals affirmed, and the Kentucky Supreme Court granted review to evaluate the work-product standard and discovery rules in this context.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CR 26.02(3)(a) applies to non-parties in this context	Brightwell argues the privilege does not apply to Santry's file about the prior criminal case.	Jefferson County argues the work product privilege extends via common law protections.	Heightened consideration; non-parties may have protection under common law work product.
Whether a prosecutor's opinion work product can be discovered in a criminal-to-civil context	Brightwell seeks Santry's opinion work product as central to his malicious prosecution claim.	Privilege should shield mental impressions and legal theories.	Opinion work product requires a compelling-need showing on a document-by-document basis.
What standard governs discovery of a prosecutor's work product in this context	Brightwell contends substantial need justifies discovery.	Traditionally privileged; standard should be narrow.	Adopt heightened compelling-need standard with in-camera review before disclosure.
Whether Santry can be deposed and forced to produce her files	Deposition sought to refresh recollection and locate undisclosed materials.	Work product and public policy protect prosecutors from deposition; discovery should be limited.	Deposition allowed only as a last resort after in-camera review under heightened standard.

Doubleday v. Ruh, 149 F.R.D. 601 (E.D. Cal. 1993) (discovery of prosecutor files not automatically privileged when civil action follows)
Hickman v. Taylor, 329 U.S. 495 (1939) (origin of work product doctrine; necessity of privacy for legal preparation)
Morrow v. Brown, Todd & Heyburn, 957 S.W.2d 722 (Ky. 1997) (opinion work product discovery when pivotal issue; strong necessity standard)
Transit Authority of River City v. Vinson, 703 S.W.2d 482 (Ky. App. 1985) (distinguishes factual vs. opinion work product; qualified protection for factual material)
Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796 (Ky. 2000) (discovery violations; adequate remedy by appeal generally not available)
Hodges/State v. Nobles cited as United States v. Nobles, 422 U.S. 225 (1975) (work product protects fair process in criminal justice)