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IMA RUTHTHRASHER, INDIVIDUALLY, ANDAS EXECUTRIXOF THE ESTATES OF HOWARDTHRASHER; ANDBARRY DOUGLASTHRASHER

AFFIRMING 2008-SC-000809-DGRENDERED : JUNE 17, 2010 TOBE PUBLISHED

ON REVIEW

FROM COURT OF APPEALS V . CASE NO . 2007-CA-000797-MR CLINTONCIRCUIT COURT NO . 93-CI-00160 TILMOND DURHAM, TERRILL DURHAM, APPELLEES ANDWALTER POWELL, III, D/B/A DP ENTERPRISES

OPINIONOF THE COURT BYJUSTICE ABRAMSON



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Ima Ruth Thrasher, both individually and as the executrix of the estate of Howard Thrasher, and Barry Douglas Thrasher appeal froman Opinion of the Court of Appeals affirming the dismissal of the Thrashers' negligence action against Tilmond Durham, Terrill Durham, andWalter Powell, III, d/b/a DP Enterprises. DPEnterprises operates oil wells in Clinton County. The Thrashers, who own and live on property near Bug, Kentucky in thevicinity of some of the wells, alleged that DPEnterprises negligently permitted hydrogen sulfide gas to escape fromone or more of the neighboring wells and that the gas damaged their property and caused thempersonal injury. A2007 trial inthe Clinton Circuit Court resulted in ajury verdict adverse to the Thrashers

and a subsequentjudgment dismissing their claims. TheThrashers contend that the trial court erred when it would not allowthemto 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 TheThrashers 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 SteveJones #1 . Tilmond Durhamtestified for the defense that in September 1992 a neighboringwell operator "fractured" one of its wells-that is, according to Durham, introduced acid into thewell to clear obstructions and did so in a manner that disrupted Steve Jones #1 . Durhamtestified that as a result of the disruption SteveJones #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 earlyJanuary 1993. Durhamalso indicated that the disruption to SteveJones #1 gave rise to litigation in the United States District Court for the Western District of Kentucky. Apparently, the attorney who represented DPEnterprises 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 DPEnterprises 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 SteveJones #1, fromthe file of the attorney who had handled the federal litigation. In complyingwith 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 themis a graph headed "DPEnterprises, SteveJones #1 Unit ." It purports to show "5-Day Production Amounts" fromearly August 1992 until late December 1992. The graph suggests that production ceased fromabout 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 SteveJones #1 before and after "Fracture of Lawrence Cross #I ." The "after fracture" itemization indicates that in October, November, and December 1992, SteveJones #1 continued to produce, although at a drastically reduced rate. The documents are all headed "Steve Jones #I," but none of themindicates an author. The Thrashers sought to introduce this evidence of continued, albeit reduced, production to counter Durham's testimony that SteveJones #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 . Thetrial court then excused thejury and convened an evidentiary hearing to give

the Thrashers an opportunity to provide authentication. They called Tilmond Durhamas a witness and asked himif he recognized the three documents. He testified that he had never seen any of thembefore and did not know who made them . TheThrashers did not otherwise pursue the issue at that point, so the trial court sustained the defense objection and did not allowthe 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 twoyears 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 renewtheir 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 fromthe mere act of production.ANALYSIS

Production of a Writing or Other Itemin Discovery Can, But Need Not, Imply That the Itemis 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 thevery 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, 688F.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 fromother 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 fromwhich 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 thatthe notation was present in the discovery is not 

### a sufficient authentication or

identification so as to make the evidence admissible." Id. at 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, thefact 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 reviewa 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 froma known source, but froma 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 beingsupplied 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 affirmthe Opinion of the Court ofAppeals 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 FORAPPELLANTS: Robert E. Reeves 167 West Main Street Suite 1310 Lexington, KY 40507 COUNSEL FORAPPELANES: Robert S. Walker, III Frost BrownTodd, LLC 250West Main Street Suite 2800 Lexington, KY 40507 CONCLUSION