RENDERED: OCTOBER 21, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1115-MR

COMMONWEALTH OF KENTUCKY APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ERIC J. HANER, JUDGE

ACTION NO. 18-CI-002568

WAYNE RILEY, ADMINISTRATOR 

FOR THE ESTATE OF ARCHIMEDIA 

DELEARA RILEY; ALEXANDRIA 

BOLTON; ALLIANCE REALTY LLC; 

ALLTRADE SERVICE SOLUTIONS, 

LLC; BERKSHIRE HATHAWAY 

HOMESERVICES PARKS AND 

WEISBERG REALTORS; C3 

HOLDINGS, LLC; CARLA HARRIS, 

ADMINISTRATRIX FOR THE 

ESTATE OF KAMERON DONTE 

HARRIS; DANESHA PEDEN; 

MICHAEL COOPER, 

ADMINISTRATOR FOR THE 

ESTATE OF SAVANNAH MIKAYLA 

COOPER; AND WAYNE RILEY, 

FATHER AND NEXT FRIEND OF 

SKYE RILEY, A MINOR APPELLEES 
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OPINION

VACATING AND REMANDING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND K. THOMPSON, 

JUDGES.

CALDWELL, JUDGE: The Commonwealth appeals from an order directing it to 

turn over discovery, which it had previously produced in a criminal matter, to a 

civil litigant suing the criminally accused. The Commonwealth argues that the 

court had no authority to issue the order because it enjoys sovereign immunity and 

cannot be so compelled. The Commonwealth also argues, in the alternative, the 

court abused its discretion by issuing an order on a non-party, requiring it to 

produce documents which might compromise either its prosecution of the accused 

or the accused’s rights. We vacate the trial court’s order and remand this matter 

for a determination as to whether the accused’s motion to stay the original order,

requiring her to turn over the Commonwealth’s initial discovery materials, should 

be granted.

FACTS

In December of 2017, a fire consumed an apartment building in south 

Louisville, killing several residents and injuring another. In May of 2018, the 

estates and survivors of those who perished in the fire filed suit against various 

entities, among them, Alltrade Service Solutions LLC (hereinafter, “Alltrade”)
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which “owned, operated and managed” the apartment building.

1 That matter was 

assigned to Division One. 

Danesha Peden was charged with various criminal offenses relating to

the apartment fire.2 The criminal matter was assigned to Division Six. 

Alltrade filed a motion seeking discovery from Peden of all materials 

turned over to her by the prosecution in the criminal case. A motion to compel 

Peden to turn over the materials was filed in January of 2020. Division One 

granted the order and ordered the guardian ad litem assigned to Peden to obtain the 

materials from her criminal defense attorney. 

The public defender assigned to represent Peden in the criminal matter 

appeared before Division One and moved for a stay of the order requiring his client 

to turn over materials, arguing irreparable injury could result from the 

dissemination of the information in an ongoing capital criminal matter. Rather 

than ruling specifically on Peden’s motion, Division One entered an order 

requiring the Commonwealth’s Attorney’s office to turn over the materials it had 

turned over to Peden in the criminal case. 

The Jefferson County Commonwealth’s Attorney informed Division 

One that the question of the discoverability of such materials was before this Court 

1 According to the amended complaints filed by Appellees in the trial court.

2

Jefferson Circuit Court, No. 17-CR-003708. 
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in another matter and the issuance of an opinion was forthcoming.3 Division One 

took no immediate action.

In April of 2021, Division Six entered an order prohibiting the parties 

from sharing the discovery materials from the criminal case. 

When the action before this Court was decided on procedural 

concerns and the merits of the discoverability question were not reached, Alltrade 

again filed a motion in Division One to compel the Commonwealth to turn over the 

discovery. The trial court ordered the Commonwealth to provide the court “a 

complete electronic copy of the discovery materials previously produced” in the 

criminal matter for an in camera inspection, and the court would provide counsel 

copies of all relevant documents after its inspection. It is from this order that the 

Commonwealth appeals. 

STANDARD OF REVIEW

Whether an entity is entitled to sovereign immunity is a question of 

law, to be reviewed de novo. Louisville Arena Auth., Inc. v. RAM Eng’g & Const., 

Inc., 415 S.W.3d 671, 677 (Ky. App. 2013). Determinations concerning discovery 

are reviewed for an abuse of discretion. B. Dahlenburg Bonar, P.S.C. v. Waite, 

Schneider, Bayless & Chesley Co., L.P.A., 373 S.W.3d 419, 424 (Ky. 2012).

3 Commonwealth v. Edwards, No. 2020-CA-0984-OA.
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ANALYSIS

The Commonwealth argues that sovereign immunity prevents the trial 

court from ordering it to act. If the Commonwealth is correct, there is no need for 

us to consider whether the trial court’s order is otherwise proper, so we will first 

determine if sovereign immunity prevents the trial court from ordering the 

Commonwealth to turn over the documents produced in the criminal case. 

We note at the outset of our analysis that the Commonwealth did not 

argue to the trial court that sovereign immunity prevented the court from ordering 

it to produce the discovery materials. But as the Commonwealth points out, 

preservation is not required. See Wells v. Commonwealth Department of 

Highways, 384 S.W.2d 308 (Ky. 1964) (holding because sovereign immunity can 

only be waived by the General Assembly, it can be raised as a defense for the first 

time on appeal). 

1. Sovereign Immunity

Sovereign immunity, broadly, prohibits suits against the 

Commonwealth. Our Supreme Court explained the concept in Yanero v. Davis:

[S]overeign immunity is a concept that arose from the 

common law of England and was embraced by our courts 

at an early stage in our nation’s history. [Reyes v. Hardin 

Memorial Hospital, 55 S.W.3d 337, 338 (Ky. 2001)]. It 

is an inherent attribute of a sovereign state that precludes 

the maintaining of any suit against the state unless the 

state has given its consent or otherwise waived its 

immunity. Restatement (Second) of the Law of Torts § 
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895B(1) (A.L.I. 1979); 72 Am.Jur.2d, States, Territories, 

and Dependencies, § 99 (1974). This principle was 

recognized as applicable to the Commonwealth of 

Kentucky as early as 1828. Divine v. Harvie, 23 Ky. (7 

T.B. Mon.) 439, 441 (1828). 

65 S.W.3d 510, 517-18 (Ky. 2001).

It matters not whether the entity involved here is named as the 

“Commonwealth of Kentucky” or the “Commonwealth’s Attorney”; either proper 

party would enjoy sovereign immunity, were it to apply in this action. “The 

absolute immunity from suit afforded to the state also extends to public officials 

sued in their representative (official) capacities, when the state is the real party 

against which relief in such cases is sought.” Id. at 518.

Whether a prosecutor or a prosecutorial agency enjoys sovereign, or 

“absolute” immunity or only “qualified” immunity turns on which role the agency 

and its personnel are embodying at the time the acts complained of occurred.4 

4 Official immunity can be absolute, as when an officer or employee

of the state is sued in his/her representative capacity, in which 

event his/her actions are included under the umbrella of sovereign 

immunity as discussed in Part I of this opinion, supra. Similarly, 

when an officer or employee of a governmental agency is sued in 

his/her representative capacity, the officer’s or employee’s actions 

are afforded the same immunity, if any, to which the agency, itself, 

would be entitled, as discussed in Part II of this opinion, supra.

But when sued in their individual capacities, public officers and 

employees enjoy only qualified official immunity, which affords 

protection from damages liability for good faith judgment calls 

made in a legally uncertain environment. 63C Am.Jur.2d, Public 

Officers and Employees, § 309 (1997). Qualified official 

immunity applies to the negligent performance by a public officer 

or employee of (1) discretionary acts or functions, i.e., those 
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When the prosecutorial agency is acting as investigator, prior to litigation, only 

qualified immunity is enjoyed, while when performing an advocacy role, absolute 

immunity is enjoyed. 

These allegations occurred beyond the investigation 

phase of the case. Rather, the alleged failure to disclose 

evidence occurred at a point in time when the prosecutors 

were acting as advocates. Thus, we hold that the 

prosecutors are entitled to absolute immunity. See 

Buckley v. Fitzsimmons, 509 U.S. 259, 273-74, 113 S. Ct. 

2606, 2616, 125 L. Ed. 2d 209, 226 (1993).

Our holding reflects the policy decision made by 

this Court in McCollum v. Garrett, Ky., 880 S.W.2d 530 

(1994), in which we drew a distinction between a 

prosecutor’s role as investigator and his or her role as an 

advocate for the Commonwealth:

During the time in which [the prosecutor] 

essentially acted as an investigator, the protection 

available to him was qualified immunity. Upon 

the commencement of prosecution and the 

assumption of his role of prosecutor, [the 

prosecutor’s] immunity became absolute.

involving the exercise of discretion and judgment, or personal

deliberation, decision, and judgment, id. § 322; (2) in good faith; 

and (3) within the scope of the employee’s authority. Id. § 309; 

Restatement (Second) Torts, supra, § 895D cmt. g. [1979]. An act

is not necessarily “discretionary” just because the officer 

performing it has some discretion with respect to the means or 

method to be employed. Franklin County v. Malone, [957 S.W.2d 

195, 201 (Ky. 1997)] (quoting Upchurch v. Clinton County, Ky., 

330 S.W.2d 428, 430 (1959)). Qualified official immunity is an 

affirmative defense that must be specifically pled. Gomez v. 

Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980).

Yanero, 65 S.W.3d at 521-22.
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Id. at 535.

Jefferson Cnty. Com. Attorney’s Off. v. Kaplan, 65 S.W.3d 916, 920 (Ky. 2001), as 

modified on denial of reh’g (Feb. 21, 2002).

The Commonwealth argues that it is not just the imposition of a 

lawsuit against the sovereign, which is prohibited by sovereign immunity except 

when waived by the General Assembly, but any judicial process cannot be 

instituted or carried out against the Commonwealth without its consent. The 

Commonwealth argues that the discovery order here purports to compel it to act, 

which implicates its immunity. 

We disagree with the Commonwealth. We believe that sovereign 

immunity is limited to instances where the Commonwealth or a division thereof is 

being named in an action. “The General Assembly may, by law, direct in what 

manner and in what courts suits may be brought against the Commonwealth.” KY.

CONST. § 231. The Commonwealth can cite to no example in the jurisprudence of 

this jurisdiction where any other understanding is evinced. Rather, caselaw 

supports just the opposite conclusion.

We begin with this caveat:

[s]overeign immunity is founded on the notion that 

the resources of the state, its income and property, 

cannot be compelled as recompense for state 

action that harms a plaintiff through the ordinary 

suit-at-law process.
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[Commonwealth v. Kentucky Retirement Systems, 396 

S.W.3d 833, 836 (Ky. 2013)]. We follow it with this 

caveat:

a declaratory judgment action is not a claim for 

damages, but rather it is a request that the 

plaintiff’s rights under the law be declared. There 

is no harm to state resources from a declaratory 

judgment. When the state is a real party in 

interest, the state is merely taking a position on 

what a plaintiff’s rights are in the underlying 

controversy.

Cnty. Emps. Ret. Sys. v. Frontier Hous., Inc., 536 S.W.3d 712, 714 (Ky. App. 

2017).

The Commonwealth’s argument conveniently ignores caselaw 

involving discovery violations by the sovereign or its agencies; if entities of state 

government could not, because of immunity, be ordered to tender discovery, there 

would be no caselaw involving allegations of discovery violations by agencies. 

But such exist.

We hold that a party to litigation may seek public 

records from a nonparty public agency through discovery 

requests, including a notice to take deposition and 

subpoena. If the nonparty public agency objects, then the 

trial court must determine whether the records are 

discoverable or not in that case. 

Parish v. Petter, 608 S.W.3d 638, 642 (Ky. App. 2020).

5

5

See also Grant v. Commonwealth, 244 S.W.3d 39 (Ky. 2008) (holding Commonwealth’s failure 

to provide discovery required reversal of conviction); Roberts v. Commonwealth, 896 S.W.2d 4, 

6-7 (Ky. 1995). (“[I]t is imperative that the Commonwealth provide full and timely discovery 

pursuant to [Kentucky Rules of Criminal Procedure] RCr 7.24 and 7.26. Failure to do so will 

result in severe sanctions.”).
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We hold that immunity does not protect the Commonwealth from 

being ordered to produce discovery as a matter of course. Therefore, we turn to the 

question of whether it was proper for Division One to order the Commonwealth as 

a non-party to the lawsuit to tender discovery from the criminal case. 

2. Discovery Order was an abuse of discretion

The Commonwealth insists that it was an abuse of discretion for 

Division One to order the Commonwealth, as a non-party, to turn over discovery 

when a party to the action, Peden, possessed the materials sought. We find that the 

court did abuse its discretion in entering the order; not because it is improper for 

the Commonwealth to turn over the discovery, but because the court did not first

determine whether the tender would violate a party’s constitutional rights. 

Peden’s criminal defense counsel refused to turn over the materials, 

citing the possibility of implicating her rights vis-à-vis the criminal prosecution in 

which the death penalty was a possibility. Not knowing that Division One had 

ordered the discovery from the criminal case be turned over, Division Six entered 

an order sealing the discovery in the criminal case. When Division Six learned that 

Division One had previously entered an order for the discovery to be turned over, it 

abated its order sealing the discovery. Division One then sidestepped the question 

of whether Peden’s rights would be implicated by requiring the criminal case 
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discovery to be turned over and ordered the Commonwealth to provide it. That 

was an abuse of discretion.

In O’Connell v. Cowan, 332 S.W.3d 34 (Ky. 2010), a criminal 

defense attorney was charged with intimidating a witness in a criminal matter in 

which he represented the defendant. In the criminal proceeding against him, the

attorney sought the prosecutor’s file in an attempt to determine the basis for the 

charge against him, which he claimed was false. The prosecutor willingly turned 

over all discovery materials in the original criminal case file, but resisted being 

deposed, citing privilege. The trial court ordered the prosecutor to submit, citing 

Kentucky Rule of Civil Procedure (“CR”) 26.02(3)(a),

6

finding the attorney was in 

substantial need of the information and was unable to obtain the substantial 

equivalent of the information by other means. The prosecutor filed a petition for a 

6

Subject to the provisions of paragraph (4) of this rule, a party may 

obtain discovery of documents and tangible things otherwise 

discoverable under paragraph (1) of this rule and prepared in 

anticipation of litigation or for trial by or for another party or by or 

for that other party’s representative (including his attorney, 

consultant, surety, indemnitor, insurer, or agent) only upon a 

showing that the party seeking discovery has substantial need of 

the materials in the preparation of his case and that he is unable 

without undue hardship to obtain the substantial equivalent of the 

materials by other means. In ordering discovery of such materials 

when the required showing has been made, the court shall protect 

against disclosure of the mental impressions, conclusions, 

opinions, or legal theories of an attorney or other representative of 

a party concerning the litigation.

CR 26.02(3)(a).
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writ of prohibition in this Court, which denied the relief. The prosecutor appealed 

as a matter of right to the Kentucky Supreme Court, which reversed this Court, and 

remanded the matter to the trial court to determine whether there was the requisite 

“compelling need” to vitiate the work product privilege and require the tender. 

Notably, the Court did not hold that the Commonwealth was not subject to the 

order. 

Though the materials sought here are of a different character than 

those sought in the O’Connell case, it is illustrative that the Supreme Court ruled 

not that the materials were not discoverable at all, but remanded for a 

determination of whether there was sufficient reason to possibly implicate the 

attorney work product privilege. In the present case, the privilege is not in any 

way implicated because Alltrade did not seek the entire prosecution file, but only 

those preliminary materials turned over to the defense via RCr 7.24. But the 

question of whether Peden’s rights would be implicated was not resolved by the 

court. 

The Commonwealth does not have standing to assert the 

constitutional rights of an individual. “Ordinarily, a litigant may only assert his 

own constitutional rights or immunities.” Associated Indus. of Kentucky v. 

Commonwealth, 912 S.W.2d 947, 951 (Ky. 1995). However, we find that the 

court’s order forced the Commonwealth to again raise the issue of Peden’s rights 
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since the court failed to address that question when it did not address Peden’s 

motion to stay the order. 

We find that Division One abused its discretion, however, in not 

ruling on Peden’s motion to stay the order promulgated by it ordering her to turn 

over the discovery provided her, a party to the action before it. Alltrade may well 

be correct that there was nothing in the materials which implicated Peden’s rights, 

but that finding was never made by Division One. Therefore, we remand this 

matter for a determination as to whether Peden is entitled to a stay of that order. 

We agree with the Commonwealth that if Peden’s objection is well 

taken, then any order requiring the discovery materials to be turned over violates 

Peden’s rights. We hold Division One abused its discretion in not addressing 

whether Peden’s constitutional rights would be violated by requiring the discovery 

materials from the criminal prosecution be turned over to the civil plaintiff before 

the resolution of the criminal case. 

CONCLUSION

We find that the trial court abused its discretion in entering the order 

requiring the Commonwealth to tender the discovery without first addressing the 

motion for a stay of the order compelling the same from Peden, a party to the 

action. We vacate and remand for a determination as to whether Peden’s motion 

for a stay ought to be entered. 
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ALL CONCUR.

BRIEFS FOR APPELLANT:

Daniel Cameron

Attorney General of Kentucky

Matthew F. Kuhn

Solicitor General

Brett R. Nolan

Principal Deputy Solicitor General

Daniel J. Grabowski

Assistant Solicitor General

Frankfort, Kentucky

ORAL ARGUMENT FOR 

APPELLANT:

Daniel J. Grabowski

Frankfort, Kentucky

BRIEF FOR APPELLEE

ALLTRADE SERVICES 

SOLUTIONS, LLC:

Joseph M. Effinger

Ryan D. Nafziger

Robert L. Whitmer

Louisville, Kentucky

ORAL ARGUMENT FOR 

APPELLEE:

Ryan D. Nafziger

Louisville, Kentucky