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# IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

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### THIS OPINIONIS DESIGNATED "NOTTOBE PUBLISHED." PURSUANT TOTHERULES OF CIVILPROCEDURE PROMULGATEDBY THE SUPREME COURT, CR76.28(4)(C), THIS OPINIONISNOT TOBE PUBLISHED AND SHALLNOTBE CITED ORUSED AS BINDING PRECEDENTINANY OTHER CASE INANY COURT OFTHIS STATE; HOWEVER,
_ UNPUBLISHED KENTUCKYAPPELLATE DECISIONS, RENDERED AFTERJANUARY 1, 2003, MAY BE CITEDFOR CONSIDERATIONBY THE COURTIFTHEREIS NO PUBLISHED OPINION THATWOULD ADEQUATELYADDRESS THEISSUE BEFORE THE COURT. OPINIONS CITEDFORCONSIDERATION BY THE COURT SHALLBE SET OUTAS AN UNPUBLISHED DECISIONINTHEFILEDDOCUMENTAND A COPY OFTHE ENTIREDECISION SHALLBE TENDEREDALONGWITHTHE DOCUMENTTO THE COURTAND ALLPARTIESTOTHE ACTION.RENDERED: APRIL 26, 2018 NOT TO BE PUBLISHED

RICK ROE



## v. 2017-SC-000256-MR

ON APPEAL FROM COURT OFAPPEALS 2017-CA-000315-0A FAYETTE CIRCUIT COURT NO. l 1-CI-03546
HON. THOMAS L. CLARK, JUDGE, FAYETTE CIRCUIT COURT AND APPELLANT

APPELLEE

B. DAHLENBURG BONAR, PSC AND BARBARA BONAR REAL PARTIES IN INTEREST

MEMORANDUM OPINION OF THE COURT AFFIRMING

. Appellant Rick Roe appeals from a Court ofAppeals' order denying his petition for a writ ofmandamus compellingJudge Thomas L. Clark ofthe Fayette Circuit Court to enter a protective orderregarding discovery in a suit that Roe brought against his former attorney? Barbara D. Bonar. Having reviewed the record and. applicable law', we affirm the Court ofAppeals. STATEMENT OF FACTS In 2003, Rick Roe (a pseudonym) hired Barbara Bonar to represent him in pursuing a claim against the Roman Catholic Diocese ofCovington arising from sexual abuse Roe suffered a_s a child. Roe did not want anyone, includinghis family, to know that he had been abused by a priest. In keeping with Roe's objective to pursue his claim withouthaving to be identified publicly, Bonar negotiated a private settlementwith the Diocese for $175,000. Eightyears later, in 2011, Roe sued Bonar and her law firm, D. Dahlenburg Bonar, PSC (collectively "Bonar")jn Fayette Circuit Court alleging she had fraudulently induced him to opt out ofa class action styled 

### Doe et al.
v. Roman CatholicDiocese ofCovington, et al., Boone Circuit Court No. 03-CI181 ("the Class Action"). Roe alleges that had he participated in the Class Action he would have received damages that were several times the amount he recovered in the private settlement. Roe claims that Bonar had conflicts of '
. interest arising from her relationship with the Diocese as well as her status as
one ofthe attorneys ofrecord in'the Class Action. He maintains that the private settlement for a nominal amount relative to the value ofhis claim was ofsubstantial financial benefit to the Diocese (and Bonar, because she received
more attorney fees) and substantial detriment to him. On these same.facts, he alleges entitlement to a civil recovery pursuant

### to Kentucky Revised Statute ("KRS") 446.070 for Bonar;s alleged violation ofKRS 514.040(1), the criminal statute pertaining to theft by deception. Bonar denies these allegations. Bonar moved for summaryjudgment against Roe in 2014, contending that his claims were long-barred by the one-year statute oflimitation. Roe insisted that he had no knowledge ofthe favorable Class Action settlement and his claim against Bonaruntil sometime in the year preceding his filing ofhis suit in Fayette Circuit Court, so his case was timely filed. The Court denied 2the summaryjudgment motion and the parties attempted settlement. In January 2017, when it appeared a settlement could not be reached, Bonar's · counsel began seeking discovery, including depositions from Roe's family members

- his ex-wife, children, siblings and other family members. This initiation ofdiscovery as to Roe's family members is the source ofthe dispute that led to the writ action. Roe sought a protective order from the trial courtpursuantto Kentucky Civil Rule ("CR") 26.03 preventing Bonar from "interviewing, contactingin any manner, subpoenaing, deposing or serving any type ofdiscovery on Roe's exwife, children, siblings, or**~ny** other family members." Roe maintains that his family is still unaware ofhis childhood sexual abuse and any claims he has asserted or is asserting stemming from that abuse, and that hedoes not want this confidential "information ofa ruinous nature" revealed to his family through Bonar's discovery efforts. Bonar opposed the broad protective order
on several grQunds and denied that the discovery was soughtfor any improper purpose, such as to force Roe to drop the suit or settle for less. Judge Clark denied the protective order noting, first, that Roe had ' brought the action and should have anticipated.that Bonar would conduct discovery regarding his claims against.the Diocese and against Bonar. Second, thejudge observed that the statute oflimitation defense was still viable, and it
was appropriate for Bonar to discover what Roe knew and when he knew it as to his fraudulent inducement claim against his formerattorney. Finally, determining whether Roe would have fared betterunder the Class Action
3settlement required some discovery about his specific sexual abuse claim, the period ofabuse and other matters about which family members may have knowledge. Following

### deni~1 of

### hi~ motion for a protective order, Roe brought an original writ action against Judge Clark in the Kentucky Court ofAppeals seeking to stay discovery. That Court denied intermediate reliefpursuant to CR 76.36(4) and later denied the petition for mandamus. Roe argues that his family members do not possess any relevant information and that the me:rits of his underlying sexual abuse claim are not relevant to his claims against Bonar. Although_the Court ofAppeals acknowledged that overly broad discovery can fall under the spedal cases exception to ourwrit standard, it found no basis to ·· justify the blanket discovery prohibition sought by**~oe.** The Court reasoned the underlying claim against the Diocese was relevant insofar as it directly impacted Bonar's work on Roe's behalf, and that the statute oflimitation defense was potentially viable. Family members could have relevant information regarding both matters. The Courtstated: "While Roe's desire for anonymity is understandable, a lawsuit is a public event. Roe's desire for anonymity as a plaintiffdoes not entitle him to control the defendant's ability to independently investigate the claims and assemble a defense." Finding no abuse ofdiscretion in the trial court's denial ofthe protective order, the Court ofAppeals denied the writ. This appeal followed.

4ANALYSIS A writ is an extraordinary remedy and consequently this Court has always been cautious in granting such relief. 

### Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). As we stated in 

### Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004), [a] writ ofprohibition 

### maybe granted upon a showing that (1) the lower courtis proceeding or is about to proceed outside ofits 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 itsjurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result ifthe petition is not granted. · The second class ofwrit, where a lower court is acting within itsjurisdiction but erroneously, is invoked in cases such as this one where an order regarding discovery is at issue. Looking first atwhether the trial courtwas acting erroneously, CR 26.02 addresses relevancy in the context ofdiscovery and provides that parties "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]
..." A trial court's order regarding discovery is reviewed for an abuse ofdiscretion.**~outhem** 

### Fin. Life Ins. Co. 

### v. Combs, 413 S.W.3d 921, 931 (Ky. 2013). Like both lower courts, we view the discovery from Roe's family members as potentially relevant to both Roe's initial claim against the Diocese and his later awareness ofa potential claim against Bonar

- the lingering statute oflimitation issue. A broad

5protective order, walling offdiscovery from all ofRoe's family members, clearly would interfere with the proper scope ofdiscovery in this matter. Moreover, "a protective order against discovery' is appropriate only upon proofthat it is 'being conducted in bad faith of in such manner to annoy, embarrass, or oppress the person subjectto the inquiry."' 

### Volvo Car Corp. v. Hopkins, 860 S.W.2d 777, 779 (Ky. 1993) 

### (quoting Hickman v. Taylor, 329 U.S. 495 (1947). None ofthese objectionable behaviors is presenthere. Instead, Bonar simply seeks relevant discovery to defend against the fraudulent inducement and criminal theft charges that Roe has alleged. Roe was one of many child victims in an ongoing sexual abuse scandal and his interest in privacy is certainlyunderstandable but it cannot be the basis for allowing him to dictate the contours ofdiscovery in a case he chose to file. The trial court didnot abuse its discretion in denying the requested protective order. Because the trial court is not acting erroneously, Roe is not entitled to a writ. We affirm the Court ofAppeals' denial ofthe petition for a writ of mandamus in this matter. All sitting. All concur.

6( I COUNSEL FORAPPELLANT: James M. Gary Weber & Rose, PSC
COUNSEL FOR REAL PARTIES IN INTEREST: Craig Christman Dilger Christopher E. Schaefer Stoll Keenon Ogden PLLC

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