# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANTTO THE RULES OF CIVIL PROCEDURE PROMULGATED BYTHE SUPREME COURT, CR 76.28(4}(C}, THIS OPINION IS NOTTO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENTAND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENTTO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: DECEMBER 15, 2016 NOTTO BE PUBLISHED 

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2016-SC-000134-MR

BOBBY REYNOLDS AND PHAEDRA SPRADLIN, UNITED STATES BANKRUPTCY TRUSTEE FOR BOBBY REYNOLDS



### V. ON APPEAL FROM COURT OFAPPEALS 2015-CA-OO1898 PERRY CIRCUIT COURT, NO. 15-CI-00589
HONORABLEALISON C. WELLS, JUDGE, PERRY CIRCUIT COURT AND APPELLANTS

APPELLEE

3M COMPANYAND MINE SAFETY APPLIANCES COMPANY REAL PARTIES IN INTEREST

MEMORANDUM OPINION OF THE COURT AFFIRMING Bobby Reynolds appeals a ruling by the Court ofAppeals denying his original action for interlocutoryrelief. The Court ofAppeals denied Reynolds's petition for Writ ofProhibition because it determined Reynolds failed to meet his burden ofestablishing attorney-client privilege. We likewise agree that Reynolds did not meet his burden ofproof, and we affirm the Court ofAppeals' ruling denying him the writ.I. FACTUAL AND PROCEDURAL BACKGROUND. In 2005, Bobby Reynolds and a group ofcoal miners filed a productsliability suit against manufacturers ofrespiratory-protection devices, including Real Party in Interest 3M Co (3M). Lastyear, 3M moved for summaryjudgment, alleging that Reynolds's claim was barred byjudicial estoppel because he failed to disclose this potential claim as an asset in a priorpersonal bankruptcy proceeding. In turn, Reynolds opposed summaryjudgmentfor two reasons: (1) he sought and was granted leave to reopen his bankruptcyproceeding to amend his schedule to include the claim, an amendment, he asserts relates backto the original filing; and (2) 3M did not establish that his failure to include the claim was not inadvertent. The trial court accordingly denied 3M's motion for summaryjudgmentwith leave to refile following further discovery. 3M then served discovery requests on Reynolds in an attempt to flesh out when he first consulted with and retained an attorney for his products-liability claim. Reynolds objected to the discovery request, asserting that the information is not discoverable as a matter ofthe attorney-client privilege. 3M moved to compel discovery. [Reynolds produced a privilege log but failed to allow in camerareview ofthe documents.] The trial court granted 3M's motion to compel discoverybecause Reynolds failed to prove the documents at issue
were privileged. Reynolds filed an original action in the Court ofAppeals seeking a Writ of Prohibition to prohibit the trial courtfrom enforcing its order compelling discovery. The Court ofAppeals denied his petition, also agreeing that Reynolds failed to meethis burden ofestablishing the attorney-client privilege applied to these documents. He now appeals to this Court as a matter ofright and asks 2thatwe reverse the Court ofAppeals' opinion and, in tum, issue the writ. Because the Court ofAppeals'decision was based on a sound assessment of Kentucky evidence law, we affirm the ruling below.
II. ANALYSIS. A. The Writ Standard. When ruling on a writ petition, we must first determine whether a writ is appropriate. Only then will we look to the merits ofthe petition to review the lower court's decision. A decision to issue a writ is completelywithin this Court's discretion. 1 A writ is an extraordinaryremedy and is one we apply with great caution. We have recognized two specific situations where this type of reliefis appropriate: [U]pon a showing that (1) the lower courtis proceeding oris about to proceed outside ofitsjurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower courtis acting or is about to act erroneously, although within itsjurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injurywill result ifpetition is not granted.2 No one disputes that the trial courtis actingwithin itsjurisdiction managing the discovery process in Reynolds's case. So Reynolds's writ claim is premised entirely on this second class ofwrits, available onlyin instances where there is
no adequate appellate remedy and when "greatinjustice and irreparable injury is sure to result from the lower courtproceeding."3

1 Hoskins v. Maricle, 150 S.W.3d 1, 5 (Ky. 2004).
2 Id. at 10. 3 Id. 3Disclosure ofprivileged information is a paradigmatic example ofthe precise type ofcase contemplated bythe "special cases" subcategory ofthe second-class writ. This is the case despite no irreparable injury to the petitionerpersonally because, "where privileged information is in danger of being disclosed, there is no adequate remedy on appeal."4 The disclosure of privileged information is a bell that cannotbe un-rung; once it is revealed it cannot be recalled. We agree that this case satisfies our objective writ standard. Butwe now turn to the merits ofthe trial court's rulingto determine whether Reynolds in fact established that the information was privileged. Kentucky Rules ofEvidence (KRE) 503 offers a comprehensive declaration regarding the attorney-client privilege under Kentucky law. The rule states, in relevant part, as follows: (b) General rule ofprivilege. A clienthas a privilege to refuse to disclose and to prevent any otherperson from disclosing a confidential communication made for the purpose offacilitating the rendition ofprofessional legal services to the client: (1) Between the client or a representative ofthe client and the client's lawyer or a representative ofthe lawyer; (2) Between the lawyer and a representative ofthe lawyer; (3) By the client or a representative ofthe client or the client's lawyer or a representative ofthe lawyer to a lawyer or a representative ofa lawyer representing another partyin a pending action and concerning a matter ofcommon interest therein; (4) Between representatives ofthe client orbetween the client and a representative ofthe client; or (5) Among lawyers and theirrepresentatives representing the same client. (c) Who may claim the privilege. The privilege may be claimed by the client, the client's guardian or conservator, the personal representative ofa deceased client, or the successor, trustee, or similar representative ofa corporation, association, or other

4 3MCo. 

### v. Engle, 328 S.W.3d 184, 188 (Ky. 2010). 4organization, whether or not in existence. The person who has the lawyer orthe lawyer's representative at the time ofthe communication is presumed to have authority to claim the privilege but only on behalfofthe client. As the Court ofAppeals correctly stated, the attorney-client privilege only shields from disclosure confidential communications made for the purpose of legal advice.s This is limited to communications made 

### to the attorney; it does not cover "anyfacts or claims reported to the attorney from all discovery."6 This is an admittedly tight rope to walk, butit is notunknown for this Court to deny writ petitions on the basis ofprivilege when the petitionerhas failed to meet his burden ofproof. We have steadfastly made clear that the party claiming privilege bears the burden ofproofin proving its applicability.7 This is primarily because testimonial privileges, such as the attorney-client privilege, are disfavored.8 And finally, lower courtrulings on privileged information are entitled no deference and reviewed de novo.9 To prove the existence ofa privileged communication, the proponent must show that itwas: (1) between a lawyer and client; (2) intended to be kept confidential; and (3) made for the purpose offacilitating rendition oflegal services to the client. 10 And it is the proponent's duty to offer sufficient detail to each supposedly privileged document to persuade the court that the information in question is not discoverable.

s See Lexi.ngton Pub. Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002).
6 Collins v. Braden, 384 S.W.3d 154, 159 (Ky. 2012).
7 Stidham v. Clark, 74 S.W.3d 719, 725 (Ky. 2002). s See id. at 722-23. 9 See Lexi.ngton Public Library, 90 S.W.3d at 62. 10 See Collins, 384 S.W.3d at 161. 5Reynolds failed to present for in camerareview any ofhis privileged information in any ofthe courts below. Instead, he offered only a simple privilege log detailingthe relevant pieces as follows: 1. Information:questionnaire sheetfilled outfor Hollon & Collins law firm on October 29, 2004. 2. Retainer contractwith Hollon & Collins signed May 16, 2005. 3. Letter from Hollon & Collins advising that a lawsuithad been filed, dated November 1, 2005. To be sure, there is nothing requiring Reynolds to presenthis privileged information for in camerareview; itis simplyone method ofproof. Buthis privilege log must assure a reviewing courtthat the documents contain confidential communications related to obtaininglegal advice. Reynolds must do more than simplyprovide document titles and declare the entirety oftheir contents privileged. The types offorms involved in this case themselves are not per se privileged, so we need some explanation ofthe substantive contents before we can authoritatively find the documents not discoverable. We agree with the Court ofAppeals that Reynolds has not done enough to prove the existence ofprivilege in the documents in question. For the first document-the client questionnaire-the lower Courtwas correctthat Reynolds offers nothing to explain the nature ofthe information included in the sheet. Clientintake questionnaires are not facially privileged; as 3M points out,
a federal courtruled such forms are often only incidentto an attorney's representation and not confidential. 11 We do not dispute that privileged information mayin fact be found in Reynolds's answers to the questionnaire.

11 See United States v. Leonard-Allen, 739 F.3d 948, 952-53 (7th Cir. 2013). The federal courtin question, ofcourse, reached its determination based on the Federal Rules ofEvidence. Butthe federal rulesrelating to the attorney-clientprivilege bear striking similarities to

## KRE 503. 6Butwe have no way ofknowing eitherway. So we must agree with the Court of Appeals that Reynolds failed to meethis burden on that item. As for the retainer agreement, we likewise conclude Reynolds missed his mark. We reaffirm that the mere fact ofrepresentation is not privileged.12 Though we reserve comment on 3M's notion for a general rule on the unprivileged nature ofretainer agreements per se, we concur that Reynolds has made no showing to overcome ourpresumption against privileged evidence. In otherwords, Reynolds has offered us no basis for concluding that the contents ofthe contractinclude anything beyond a mere declaration ofrepresentation between Reynolds and his counsel-afact that is not a confidential communication nor within the scope ofKRE 503. And finally, we agree with the Court ofAppeals that the letter from Collins to Reynolds advising him that a suithad been filed is discoverable. The filing ofa lawsuit is a matter ofpublic record. 13 Public information does not become privileged simply from the act ofan attorney commemoratingit in a letterto a client. 

### Ifthere is any information within the letter advising Reynolds oflegal opinions, strategy, etc., Reynolds should have offered a more robust privilege log fully apprising the trial court that the letter contained confidential information. Because we mustultimately determine that Reynolds failed to prove the privileged nature ofthe communications with his attorney, a writ ofprohibition is unavailable in this case. With such bare-bones information regarding the

12 See United States v. Haddad, 527 F.2d 537, 538 (6th Cir. 1975). 13 SeeKentucky Revised Statutes (KRS) 61.870(1)(e) and 61.872. 7nature ofthe potential disclosures, we have no choice but to affirm the Court of Appeals' decision to deny the writ.
III. CONCLUSION. For the foregoing reasons we affirm the Court ofAppeals and deny Reynolds's petition for a writ ofprohibition against the trial court's order to compel discovery. All sitting. All concur.

COUNSEL FORAPPELLANT: BOBBY REYNOLDS Nathaniel Leslie Collins Collins, Collins & Conley, PSC COUNSEL FORAPPELLANT: PHAEDRA SPRADLIN, UNITED STATES BANKRUPTCY TRUSTEE FOR BOBBY REYNOLDS Michael Conley Conley Law Office, PLLC
Alison CourtneyWells, Judge, Perry Circuit Court COUNSEL FOR REAL PARTY IN INTEREST: 3M COMPANY Byron N. Miller Michael J. Bender Thompson, Miller & Simpson, PLC BryantJonathan Spann Thomas, Combs & Spann, PLLC COUNSEL FOR REAL PARTY IN INTEREST: MINE SAFETY APPLIANCES COMPANY Milton Trent Spurlock Dinsmore & Shohl, LLP

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