IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4}(C}, 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 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 DOCUMENT AND A COPY OF THE 

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
RENDERED: DECEMBER 15, 2016 

NOT TO BE PUBLISHED 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 OF APPEALS 

2015-CA-OO 1898 

PERRY CIRCUIT COURT, NO. 15-CI-00589 

HONORABLE ALISON C. WELLS, JUDGE, 

PERRY CIRCUIT COURT 

AND 

APPELLANTS 

APPELLEE 

3M COMPANY AND MINE SAFETY 

APPLIANCES COMPANY 

REAL PARTIES IN INTEREST 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Bobby Reynolds appeals a ruling by the Court of Appeals denying his 

original action for interlocutory relief. The Court of Appeals denied Reynolds's 

petition for Writ of Prohibition because it determined Reynolds failed to meet 

his burden of establishing attorney-client privilege. We likewise agree that 

Reynolds did not meet his burden of proof, and we affirm the Court of Appeals' 

ruling denying him the writ. 
I. FACTUAL AND PROCEDURAL BACKGROUND. 

In 2005, Bobby Reynolds and a group of coal miners filed a productsliability suit against manufacturers of respiratory-protection devices, including 

Real Party in Interest 3M Co (3M). Last year, 3M moved for summary judgment, 

alleging that Reynolds's claim was barred by judicial estoppel because he failed 

to disclose this potential claim as an asset in a prior personal bankruptcy 

proceeding. In turn, Reynolds opposed summary judgment for two reasons: (1) 

he sought and was granted leave to reopen his bankruptcy proceeding to 

amend his schedule to include the claim, an amendment, he asserts relates 

back to 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 summary judgment with 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 of the attorney-client privilege. 3M 

moved to compel discovery. [Reynolds produced a privilege log but failed to 

allow in camera review of the documents.] The trial court granted 3M's motion 

to compel discovery because Reynolds failed to prove the documents at issue 

were privileged. 

Reynolds filed an original action in the Court of Appeals seeking a Writ of 

Prohibition to prohibit the trial court from enforcing its order compelling 

discovery. The Court of Appeals denied his petition, also agreeing that Reynolds 

failed to meet his burden of establishing the attorney-client privilege applied to 

these documents. He now appeals to this Court as a matter of right and asks 

2 
that we reverse the Court of Appeals' opinion and, in tum, issue the writ. 

Because the Court of Appeals' 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 of the petition to review the 

lower court's decision. A decision to issue a writ is completely within this 

Court's discretion. 1 A writ is an extraordinary remedy and is one we apply with 

great caution. We have recognized two specific situations where this type of 

relief is appropriate: 

[U]pon a showing that (1) the lower court is proceeding or is about 

to proceed outside of its jurisdiction and there is no remedy 

through an application to an intermediate court; or (2) that the 

lower court is acting or is about to act erroneously, although 

within its jurisdiction, and there exists no adequate remedy by 

appeal or otherwise and great injustice and irreparable injury will 

result if petition is not granted.2 

No one disputes that the trial court is acting within its jurisdiction managing 

the discovery process in Reynolds's case. So Reynolds's writ claim is premised 

entirely on this second class of writs, available only in instances where there is 

no adequate appellate remedy and when "great injustice and irreparable injury 

is sure to result from the lower court proceeding. "3 

1 Hoskins v. Maricle, 150 S.W.3d 1, 5 (Ky. 2004). 

2 Id. at 10. 

3 Id. 

3 
Disclosure of privileged information is a paradigmatic example of the 

precise type of case contemplated by the "special cases" subcategory of the 

second-class writ. This is the case despite no irreparable injury to the 

petitioner personally 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 cannot be un-rung; once it is revealed it 

cannot be recalled. We agree that this case satisfies our objective writ 

standard. But we now turn to the merits of the trial court's ruling to determine 

whether Reynolds in fact established that the information was privileged. 

Kentucky Rules of Evidence (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 of privilege. A client has a privilege to refuse to 

disclose and to prevent any other person from disclosing a 

confidential communication made for the purpose of facilitating the 

rendition of professional legal services to the client: 

(1) Between the client or a representative of the client and the 

client's lawyer or a representative of the lawyer; 

(2) Between the lawyer and a representative of the lawyer; 

(3) By the client or a representative of the client or the client's 

lawyer or a representative of the lawyer to a lawyer or a 

representative of a lawyer representing another party in a 

pending action and concerning a matter of common interest 

therein; 

(4) Between representatives of the client or between the client and 

a representative of the client; or 

(5) Among lawyers and their representatives 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 of a deceased client, or the successor, trustee, or 

similar representative of a corporation, association, or other 

4 3M Co. v. Engle, 328 S.W.3d 184, 188 (Ky. 2010). 

4 
organization, whether or not in existence. The person who has 

the lawyer or the lawyer's representative at the time of the 

communication is presumed to have authority to claim the 

privilege but only on behalf of the client. 

As the Court of Appeals 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 "any facts or claims reported to the attorney from all discovery."6 This 

is an admittedly tight rope to walk, but it is not unknown for this Court to deny 

writ petitions on the basis of privilege when the petitioner has failed to meet his 

burden of proof. We have steadfastly made clear that the party claiming 

privilege bears the burden of proof in proving its applicability. 7 This is primarily 

because testimonial privileges, such as the attorney-client privilege, are 

disfavored.8 And finally, lower court rulings on privileged information are 

entitled no deference and reviewed de novo. 9 

To prove the existence of a privileged communication, the proponent 

must show that it was: (1) between a lawyer and client; (2) intended to be kept 

confidential; and (3) made for the purpose of facilitating rendition of legal 

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. 

5 
Reynolds failed to present for in camera review any of his privileged 

information in any of the courts below. Instead, he offered only a simple 

privilege log detailing the relevant pieces as follows: 

1. Information :questionnaire sheet filled out for Hollon & Collins 

law firm on October 29, 2004. 

2. Retainer contract with Hollon & Collins signed May 16, 2005. 

3. Letter from Hollon & Collins advising that a lawsuit had been 

filed, dated November 1, 2005. 

To be sure, there is nothing requiring Reynolds to present his privileged 

information for in camera review; it is simply one method of proof. But his 

privilege log must assure a reviewing court that the documents contain 

confidential communications related to obtaining legal advice. Reynolds must 

do more than simply provide document titles and declare the entirety of their 

contents privileged. The types of forms involved in this case themselves are not 

per se privileged, so we need some explanation of the substantive contents 

before we can authoritatively find the documents not discoverable. 

We agree with the Court of Appeals that Reynolds has not done enough 

to prove the existence of privilege in the documents in question. For the first 

document-the client questionnaire-the lower Court was correct that 

Reynolds offers nothing to explain the nature of the information included in the 

sheet. Client intake questionnaires are not facially privileged; as 3M points out, 

a federal court ruled such forms are often only incident to an attorney's 

representation and not confidential. 11 We do not dispute that privileged 

information may in 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 court in question, of course, reached its determination based on the Federal 

Rules of Evidence. But the federal rules relating to the attorney-client privilege bear 

striking similarities to KRE 503. 

6 
But we have no way of knowing either way. So we must agree with the Court of 

Appeals that Reynolds failed to meet his burden on that item. 

As for the retainer agreement, we likewise conclude Reynolds missed his 

mark. We reaffirm that the mere fact of representation is not privileged.12 

Though we reserve comment on 3M's notion for a general rule on the 

unprivileged nature of retainer agreements per se, we concur that Reynolds has 

made no showing to overcome our presumption against privileged evidence. In 

other words, Reynolds has offered us no basis for concluding that the contents 

of the contract include anything beyond a mere declaration of representation 

between Reynolds and his counsel-a fact that is not a confidential 

communication nor within the scope of KRE 503. 

And finally, we agree with the Court of Appeals that the letter from 

Collins to Reynolds advising him that a suit had been filed is discoverable. The 

filing of a lawsuit is a matter of public record. 13 Public information does not 

become privileged simply from the act of an attorney commemorating it in a 

letter to a client. If there is any information within the letter advising Reynolds 

of legal 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 must ultimately determine that Reynolds failed to prove the 

privileged nature of the communications with his attorney, a writ of prohibition 

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 See Kentucky Revised Statutes (KRS) 61.870(1)(e) and 61.872. 

7 
nature of the 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 of Appeals and deny 

Reynolds's petition for a writ of prohibition against the trial court's order to 

compel discovery. 

All sitting. All concur. 

COUNSEL FOR APPELLANT: BOBBY REYNOLDS 

Nathaniel Leslie Collins 

Collins, Collins & Conley, PSC 

COUNSEL FOR APPELLANT: PHAEDRA SPRADLIN, UNITED STATES 

BANKRUPTCY TRUSTEE FOR BOBBY REYNOLDS 

Michael Conley 

Conley Law Office, PLLC 

Alison Courtney Wells, Judge, Perry Circuit Court 

COUNSEL FOR REAL PARTY IN INTEREST: 3M COMPANY 

Byron N. Miller 

Michael J. Bender 

Thompson, Miller & Simpson, PLC 

Bryant Jonathan Spann 

Thomas, Combs & Spann, PLLC 

COUNSEL FOR REAL PARTY IN INTEREST: MINE SAFETY APPLIANCES 

COMPANY 

Milton Trent Spurlock 

Dinsmore & Shohl, LLP 

8