Haney v. YatesHaney v. Yates
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- Before:
- Cooper
In the present matter, the Court of Appeals granted Appellee Yates’ motion for a writ of prohibition to enjoin a Jefferson Circuit Court discovery order. Appellant, Barbara Haney, administratrix of the estate of Betty Emmons, now seeks review of that adverse decision in this Court. The only question to be decided is whether a privilege precludes discovery.
Leonard Yates is a taxi driver in the city of Louisville. He works as an independent contractor to the Yellow Cab Company of Louisville (Yellow Cab) and leases taxicabs from that company. On November 3, 1997, Yates, driving a cab owned by Yellow Cab, collided with pedestrian Betty Em-mons. Emmons suffered severe injuries and died ten days later. Barbara Haney, in her capacity as administratrix of Em-mons’s estate, filed suit against both Yates and Yellow Cab on October 7,1998.
Either on the day of the accident or shortly thereafter, Yates gave a written statement to Yellow Cab’s Safety Department. It is this statement that Haney seeks to discover. The trial judge granted the discovery motion and ordered Yellow Cab to divulge the statement. Yates then petitioned the Court of Appeals for a writ of prohibition, which was granted.
On October 29, 1997, scant days before the accident, Yellow Cab became a self-insured entity.
As stated, the only issue is whether Yates’s statement to Yellow Cab’s Safety Department is privileged. Yates argues that his statement either falls within the attorney-client privilege or is “work product.” Relying on Asbury v. Beerbower, Ky., 589 S.W.2d 216 (1979), the Court of Appeals held that the statement fell within the insured-insurer extension of the attorney-client privilege.
I. ATTORNEY-CLIENT PRIVILEGE.
KRE 503 sets forth Kentucky’s attorney-client privilege. For the privilege to attach, the statement must be a confidential communication made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in the rule: the client, the client’s representatives, the lawyer, or the lawyer’s representatives. KRE 503(a)(5) states that “[a] communication is ‘confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” The parties agree that Yates gave his statement to Yellow Cab’s Safety Department. Thus, it was not made in “furtherance of the rendition of professional legal services” as no attorney was yet involved to render services.
In Asbury v. Beerbower, supra, we extended the scope of the attorney-client privilege, then defined in
‘The insured is ordinarily not represented by counsel of his own choosing either at the time of making the communication or during the course of litigation. Under such circumstances we believe that the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the insured.’ People v. Ryan, 30 Ill.2d 456, 197 N.E.2d 15, 17 (1964). We think this conclusion makes good sense.
Id. at 217.
Thus, Asbury extended the attorney-client privilege to include the insurer-insured relationship when the insurance policy requires cooperation with respect to potential litigation as a condition of coverage. The insured’s statement was deemed confidential because under the circumstance it was “made ... for the dominant purpose of transmitting it to an attorney.” Id. We need not decide here whether As-bury survived the repeal of
At the outset, we recognize three salient principles. First, under CR 26.02, parties are entitled to discover any matter not privileged. Second, the party asserting a privilege must prove its applicability. Sisters of Charity Health Sys. v. Raikes, Ky., 984 S.W.2d 464, 469 (1998); Shobe v. EPI Corp., Ky., 815 S.W.2d 395 (1991); Robert G. Lawson, The Kentucky Evidence Law Handbook, § 5.05, p. 229 (3d ed. Michie 1993). Finally, “privileges should be strictly construed, because they contravene the fundamental principle that ‘the ... public has a right to every man’s evidence.’ ” Sisters of Charity, at 468 (quoting Trammel v. United States, 445 U.S. 40, 45, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980)). Stated differently, “broad claims of ‘privilege’ are disfavored when balanced against the need for litigants to have access to relevant or material evidence.” Meenach v. General Motors Corp., Ky., 891 S.W.2d 398, 402 (1995).
Appellee argues that the attorney-client privilege applies in this case because the relationship between Yellow Cab, as a self-insured entity, and Yates is analogous to that of an insurer to an insured; and that
In light of the principle of liberal discovery and the strict construction of privileges, we disagree and decline to extend Asbury to this fact situation. A self-insurer and an insurer are not the same. Yellow Cab is not in the business of insurance. It does not engage in risk shifting.
The statutes and ordinance cited by Yates do not support his position.
In the absence of a contractual or statutory duty to cooperate, Yates’ statement does not fall within the holding of Asbury
II. WORK PRODUCT.
Yates alternatively asserts that his statement is protected by the work product exception to CR 26.02(3)(a). Again, we disagree. CR 26.02(3)(a) permits discovery of documents and tangibles “prepared in anticipation of litigation or for trial” by or for a party and his or her representatives only upon “a showing” of “substantial need” and “undue hardship” by the party seeking discovery; provided, however, that “the mental impressions, conclusions, opinions, or legal theories of an attorney” may not be discovered even though “substantial need” and “undue hardship” exist. Thus, documents prepared in anticipation of litigation are subject to a qualified privilege, i.e., discoverable only upon a showing of substantial need and undue hardship; but documents containing the mental impressions or legal conclusions of an attorney are absolutely privileged. Transit Auth. of River City v. Vinson, Ky.App., 703 S.W.2d 482, 486 (1985).
The statement at issue was made not by an attorney, but by Appellee Yates. Thus, it is not an absolutely protected legal impression or opinion of an attorney, but a factual statement entitled only to the qualified protection of CR 26.02(3)(a). Though Haney posits that the statement was not made “in anticipation of litigation,” we need not reach that issue since Haney has shown both substantial need and undue hardship. Haney has a substantial need for the statement as the only other witness, Emmons, is deceased. Similarly, to preclude discovery of the statement would work an undue hardship, because Haney has no other recourse to obtain the same information. We conclude that Yates’s statement is not protected from discovery by CR 26.02(3)(a).
Accordingly, the decision of the Court of Appeals is reversed and the writ of prohibition is vacated.
All concur.Notes
. Repealed, 1992 Ky.Acts ch. 324 § 30.