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IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

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THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 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: APRIL 26, 2018 

NOT TO BE PUBLISHED 

RICK ROE 

v. 

2017 -SC-000256-MR 

ON APPEAL FROM COURT OF APPEALS 

201 7 -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 of Appeals' order denying his 

petition for a writ of mandamus compelling Judge Thomas L. Clark of the 

Fayette Circuit Court to enter a protective order regarding 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 of Appeals. 

STATEMENT OF FACTS 

In 2003, Rick Roe (a pseudonym) hired Barbara Bonar to represent him 

in pursuing a claim against the Roman Catholic Diocese of Covington arising 

from sexual abuse Roe suffered a_s a child. Roe did not want anyone, including 
his family, to know that he had been abused by a priest. In keeping with Roe's 

objective to pursue his claim without having to be identified publicly, Bonar 

negotiated a private settlement with the Diocese for $175,000. 

Eight years 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 of a class action styled Doe et al. 

v. Roman Catholic Diocese of Covington, 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 of the attorneys of record in 'the Class Action. He maintains that the 

private settlement for a nominal amount relative to the value of his claim was 

of substantial 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 of KRS 514.040(1), the criminal 

statute pertaining to theft by deception. Bonar denies these allegations. 

Bonar moved for summary judgment against Roe in 2014, contending 

that his claims were long-barred by the one-year statute of limitation. Roe 

insisted that he had no knowledge of the favorable Class Action settlement and 

his claim against Bonar until sometime in the year preceding his filing of his 

suit in Fayette Circuit Court, so his case was timely filed. The Court denied 

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the summary judgment 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 of discovery as to Roe's family members is the source of the dispute 

that led to the writ action. 

Roe sought a protective order from the trial court pursuant to Kentucky 

Civil Rule ("CR") 26.03 preventing Bonar from "interviewing, contacting in any 

manner, subpoenaing, deposing or serving any type of discovery on Roe's exwife, children, siblings, or ~ny other family members." Roe maintains that his 

family is still unaware of his childhood sexual abuse and any claims he has 

asserted or is asserting stemming from that abuse, and that he does not want 

this confidential "information of a 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 sought for 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 

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brought the action and should have anticipated. that Bonar would conduct 

discovery regarding his claims against. the Diocese and against Bonar. Second, 

the judge observed that the statute of limitation 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 former attorney. Finally, 

determining whether Roe would have fared better under the Class Action 

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settlement required some discovery about his specific sexual abuse claim, the 

period of abuse 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 of Appeals 

seeking to stay discovery. That Court denied intermediate relief pursuant 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 of Appeals acknowledged that overly broad discovery can 

fall under the spedal cases exception to our writ 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 of limitation 

defense was potentially viable. Family members could have relevant 

information regarding both matters. The Court stated: "While Roe's desire for 

anonymity is understandable, a lawsuit is a public event. Roe's desire for 

anonymity as a plaintiff does not entitle him to control the defendant's ability 

to independently investigate the claims and assemble a defense." Finding no 

abuse of discretion in the trial court's denial of the protective order, the Court 

of Appeals denied the writ. This appeal followed. 

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ANALYSIS 

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 of prohibition may be granted upon 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 the petition is not granted. · 

The second class of writ, where a lower court is acting within its jurisdiction 

but erroneously, is invoked in cases such as this one where an order regarding 

discovery is at issue. 

Looking first at whether the trial court was acting erroneously, CR 26.02 

addresses relevancy in the context of discovery 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 of discretion. ~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 of a potential 

claim against Bonar - the lingering statute of limitation issue. A broad 

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protective order, walling off discovery from all of Roe's family members, clearly 

would interfere with the proper scope of discovery in this matter. 

Moreover, "a protective order against discovery' is appropriate only upon 

proof that it is 'being conducted in bad faith of in such manner to annoy, 

embarrass, or oppress the person subject to 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 of these objectionable behaviors is present here. 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 certainly understandable but it cannot be the basis for allowing him 

to dictate the contours of discovery in a case he chose to file. The trial court 

did not 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 of Appeals' denial of the petition for a writ of 

mandamus in this matter. 

All sitting. All concur. 

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COUNSEL FOR APPELLANT: 

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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