Suyrrmr 01vurf of

IMA RUTH THRASHER, INDIVIDUALLY,

AND AS EXECUTRIX OF THE

ESTATES OF HOWARD THRASHER;

AND BARRY DOUGLAS THRASHER

AFFIRMING

2008-SC-000809-DG

RENDERED: JUNE 17, 2010

TO BE PUBLISHED

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

N

DAT[Eq-y-/od'6~~

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 ajury 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 selfincrimination, 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 ita 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.
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

CONCLUSION