MICHAEL J. O'CONNELL (IN HIS OFFICIAL CAPACITY AS THE JEFFERSON COUNTY ATTORNEY), ET AL. V. HONORABLE FREDERIC J. COWAN (IN HIS OFFICIAL CAPACITY AS JUDGE OF THE JEFFERSON CIRCUIT COURT, DIVISION 13), ET AL.
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MODIFIED : DECEMBER 16, 2010
RENDERED : MAY 20, 2010
TO BE PUBLISHED
'*ixyrrxrcr Courf of
2009-SC-000596-MR
MICHAEL J . O'CONNELL, IN HIS OFFICIAL
CAPACITY AS JEFFERSON COUNTY ATTORNEY,
AND SHELLEY SANTRY, IN HER OFFICIAL CAPACITY
AS AN ASSISTANT JEFFERSON COUNTY ATTORNEY
DATEffialbli ~
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2008-CA-001561-OA
JEFFERSON CIRCUIT COURT NO . 06-CI-007802
HONORABLE FREDERIC J . COWAN, IN HIS
OFFICIAL CAPACITY AS JUDGE OF THE
JEFFERSON CIRCUIT COURT, DIVISION 13
APPELLEE
AND
BRUCE ALAN BRIGHTWELL ;
THE CITY OF JEFFERSONTOWN, KENTUCKY ;
AND DETECTIVE ROSCOE SCOTT
REAL PARTIES IN INTEREST
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
This is an appeal from an opinion and order of the Court of Appeals
denying a petition for a writ to prohibit the trial court from enforcing its order
requiring a former prosecutor to turn over her litigation file and to be deposed
by a former defendant she prosecuted in district court. Because the trial court
did not evaluate the request for discovery of the prosecutor's opinion work
product under the heightened compelling need standard, we reverse the order
denying the writ and remand to the Court of Appeals for further proceedings
consistent with this opinion.
In 2005, attorney Bruce Alan Brightwell was charged with intimidating a
participant in the legal process, terroristic threatening, and harassing
communications in the Jefferson District Court. These charges stemmed, at
least in part, from certain threatening email and instant messages sent to the
alleged victims from Brightwell's computer . In March 2005, Jeffersontown
Police Department Detective Roscoe Scott seized Brightwell's computers
pursuant to a search warrant and delivered them to a forensic computer expert
with the Louisville Metro Police Department . On July 21, 2005, an additional
charge of tampering with physical evidence was filed against Brightwell. The
basis of the new charge was that Brightwell had tampered with his computer
so as to hide or otherwise destroy evidence of the messages in question . At the
probable cause hearing, Louisville Metro Police Department Detective Craig, a
computer expert, testified .that he found no evidence of tampering in the
computers he examined . On motion of the Commonwealth, the district court
thereafter dismissed the tampering with physical evidence charge for lack of
probable cause.
Brightwell ultimately entered an Alf'ordl plea to a charge of harassing
communications and entered into a diversion agreement with the
Commonwealth . Subsequently, Brightwell filed a civil action against Detective
Roscoe Scott and the City of Jeffersontown, alleging, among other claims,
See generally North Carolina v. Alford, 400 U.S . 25 (1970).
abuse of process, malicious prosecution, intentional infliction of emotional
distress, and a violation of 42 U.S.C . Section 1983 . The complaint alleged that
Scott recommended to Shelley Santry, Assistant Jefferson County Attorney,
that she file the tampering with physical evidence charge even though there
was no evidence to support it. Neither Santry nor the Jefferson County
Attorney's Office, Jefferson County, or the Commonwealth of Kentucky were
named defendants in the civil suit brought by Brightwell.
In his answer and in discovery responses, Scott denied the allegation
that he recommended that the tampering charge be brought against Brightwell.
In his interrogatory responses, he identified Santry as a witness who could
support his denial and generally identified the Jefferson County Attorney's
Office as the place where documents and persons with knowledge to support
his denial could be found. Thereafter, Brightwell filed a subpoena duces tecum
and ad testificandum to Santry. The subpoena commanded Santry to appear
at a deposition to produce documents that, according to Santry, essentially
comprise her entire litigation file on Brightwell's prosecution.
The office of the Jefferson County Attorney, on behalf of Santry,
responded with a motion to quash the subpoena . Following the filing of the
motion to quash, the parties and the Jefferson County Attorney's Office
reached an agreement whereby Santry would answer interrogatories relating
solely to communications between Santry and Scott and that Santry would also
produce documents provided to her by Scott. The agreement stated that
Santry reserved the right to object on work product grounds.
After receiving Santry's answers to interrogatories, Brightwell filed a
motion for a hearing on the motion to quash the subpoena, arguing that
Santry's responses to his interrogatories were inconclusive . In her responses
to interrogatories that directed her to identify those "oral communications"
from Scott that led her to file the tampering with physical evidence charge,
Santry replied that "[r]espondent states that she recalls having conversations
with Scott, but cannot recall the specifics of those conversations." As to the
documents she was to provide, Santry maintained that she produced all
written communications from Scott that were contained in, her litigation file .
Brightwell argued to the trial court that he needed to take Santry's deposition
and review other documents withheld under claim of privilege in an effort to
refresh Santry's recollection or to determine exactly what her recollection was .
The Jefferson County Attorney's Office contended that information sought from
Santry was privileged as work product under Kentucky Rules of Civil Procedure
(CR) 26:02(3)(a) and, thus, not subject to disclosure .
In an opinion and order entered on August 4, 2008, the trial court ruled
that the work product privilege in CR 26.02(3)(a) did not apply to the
information sought from Santry in this case because neither Santry nor the
county attorney's office was a party to the civil litigation commenced by
Brightwell . Alternatively, the trial court found that even if the work product
privilege applied here, Brightwell was, nevertheless, entitled to obtain the
information from Santry because he made the required showing under
CR 26.02(3)(a) that he was in substantial need of the information and was
unable to obtain the substantial equivalent of the information by other means.
The trial court concluded, "Thus, [Brightwell] is left with no other alternative
than to take Santry's deposition and obtain her testimony and whatever
relevant documents in her litigation file that she has yet to disclose." The trial
court then compelled Santry to appear for deposition by Brightwell and ordered
her to provide Brightwell with "all documents generated while the underlying
prosecution of Brightwell was pending, which in any manner related to the
decision to charge Brightwell with Tampering with Physical Evidence, including
but not limited to all reports, memos, correspondence, or notes which were
relied upon in making that charge ."
The Jefferson County Attorney and Santry thereafter filed a petition for a
writ of prohibition in the Court of Appeals seeking to prohibit the trial court
from enforcing the discovery order against Santry. On August 18, 2009, the
Court of Appeals entered its opinion and order denying the petition . Citing
Doubleday v. Ruh, 149 F.R.D . 601 (E.D.Cal. 1993), the Court of Appeals agreed
with the trial court that the work product privilege in CR 26 .02(3)(a) did not
apply to Santry's litigation file on Brightwell's prosecution and information
regarding the prosecution because the criminal proceeding had been
terminated, and neither Santry nor the Jefferson County Attorney's Office was
a party to the subsequent civil action. The Court of Appeals further reasoned:
The best evidence to determine the truth of Scott's [sic] would be to
determine the affect [sic] Scott had on Santry's decision to
prosecute Brightwell for Tampering with Physical Evidence. Thus,
given the fact that the mental impressions and thought processes
developed by Santry during the course of the unsuccessful
criminal prosecution will determine the truth or falsity of Scott's
defense in the subsequent civil proceeding, the Jefferson County
Attorneys' Office failed to meet its burden that the information
possessed by Santry is protected under the work product privilege.
Therefore, the Jefferson Circuit Court did not err by ordering
Santry to appear for a deposition and to produce a copy of all
documents generated while the underlying prosecution of
Brightwell was pending, which in any manner relate to the decision
to charge Brightwell with Tampering with Physical Evidence,
including but not limited to all reports, memos, correspondence, or
notes which were relied upon in making that charge .
The Court of Appeals also agreed with the trial court that even if the work
product privilege applied here, pursuant to CR 26.02(3)(a), Brightwell
demonstrated "substantial need of the material 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."
The Jefferson County Attorney and Santry filed this matter of right
appeal from the denial of the Court of Appeals of the petition for writ of
prohibition. "[T]his Court has articulated a strict standard to determine
whether the remedy of a writ is available." Cox v. Braden, 266 S .W.3d 792, 796
(Ky. 2008) . In Hoskins v. Maricle, we said
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.
150 S.W .3d 1, 1 0 (Ky. 2004) .
There is no claim that the trial court was acting outside its jurisdiction in
this case. So the question before us is whether the trial court is acting or
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. Only after an appellate court
determines that waiting for an appealable judgment would deprive an appellant
of an adequate remedy, or cause a great injustice or irreparable injury, does
the appellate court consider whether the lower court erred in its interlocutory
ruling on the merits; and, even then, a writ is discretionary. Cox, 266 S.W.3d
at 796-97 .
As a practical matter, whenever a discovery violation occurs that
allegedly allows discovery in error, a party will not have an
adequate remedy by appeal because "once the information is
furnished it cannot be recalled ." [Bender v. Eaton, 343 S .W .2d
799, 801 (Ky. 1961)] . The information may or may not be used at
trial and, generally, the admissibility of the information is not
affected by the discovery violation. See, e.g., Transit Authority of
River City v. Vinson, [703 S.W .2d 482, 486 (Ky.App . 1985)] ("[W]ork
product immunity protects only the documents themselves and not
the underlying facts."). Thus, when information that is obtained
from a party in violation of the discovery rules is admitted as
evidence at trial, this fact alone does not provide grounds for
objecting to the introduction of the evidence and, hence, an
aggrieved party has no means of preserving the issue for appeal.
Wal-Mart Stores, Inc. v. Dickinson, 29 S .W.3d 796, 800 (Ky. 2000) .
Because Appellants are alleging that the discovery of the work product
information was allowed in error, Appellants have made the required showing
that they have no adequate remedy by appeal or otherwise; and great injustice
and irreparable injury will result if the petition is not granted. So we move on
to the question of whether the trial court acted erroneously when it ordered
Santry to appear for deposition and provide Brightwell with all documents
related to the decision to charge Brightwell with Tampering with Physical
Evidence. In analyzing this question, we are mindful of our precedent
indicating that privileges be narrowly construed, see, e.g., Sisters of Charity
Health Systems, Inc. v. Raikes, 984 S.W.2d 464, 468 (Ky. 1998) . But we are
also aware of United States Supreme Court precedent recognizing the need to
protect attorneys against unwarranted invasions into their case files even on
items that do not fall within the attorney-client privilege such that a party
desiring discovery of such attorney "work product" must show a particular
need to access these materials that cannot easily be met through other means 2
Our Kentucky civil rule on work product, CR 26.02(3)(a), provides:
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 .
At the outset, we must determine if the work product privilege even
applies in this case since Santry and the county attorney's office are not parties
Hickman v. Taylor, 329 U.S. 495, 511- 12 (1947) .
to the subsequent litigation and because the material sought was generated in
anticipation of the criminal case, which is now terminated . The issue of
whether the work product privilege in CR 26.02(3)(a) applies to non-parties to
the current lawsuit has not been addressed in Kentucky, except in the context
of a former criminal client seeking his own file from his former attorney, which
is not the case here. See Hiatt v. Clark, 194 S.W.3d 324, (Ky. 2006) . By its
plain language, CR 26.02(3) may not apply to the present case ; however, the
broader work-product doctrine recognized in Hickman v. Taylor does. See
Sporck v. Peil, 759 F .2d 312, 316 (3rd Cir. 1985); In re Grand Jury Subpoenas
Dated March 19, 2002, and August 2, 2002, 318 F .3d 379, 383 (2nd Cir. 2003)
(recognizing that Federal Rules of Civil Procedure (Fed . R. Civ. P.) 26(b)(3),
counterpart to CR 26 .02(3), only partially codifies work product protection
provided in Hickman v. Taylor).
"The work-product doctrine is designed to protect an adversary system of
justice," Morrow v. Brown, Todd & Heyburn, 957 S .W .2d 722, 724 (Ky. 1997),
and is rooted in the United States Supreme Court's decision in Hickman v.
Taylor. CR 26 .02(3)(a) is nearly identical to its federal counterpart,
Fed. R . Civ. P. 26(b)(3) . So, in addition to Kentucky case law, we shall look to
other state and federal cases construing the rule for guidance on the issue .
Brightwell argues that CR 26.02(3)(a) has no application here because,
by its express terms, it affords protection only to documents prepared "by or for
another party or by or for that other party's representative." CR 26 .02(3)(a) .
See California Pub. Util. Comm'n v. Westinghouse Elec . Corp., 892 F.2d 778, 781
(9th Cir. 1989) ; Fed. Trade Comm'n v. GrolierInc., 462 U .S. 19, 25 (1983) .
Indeed, it has been held that Fed . R. Civ. P. 26(b) (3) provides no work product
protection for a prosecutor's files when that prosecutor is not a party to the
subsequent civil litigation . Doubleday, 149 F.R.D . at 606 . Nevertheless,
several courts have extended work-product protection to non parties when that
vindicated the purposes underlying the doctrine. See, e.g., Allied Irish Banks,
P.L.C. v. Bank ofAmerica, N.A., 252 F.R.D. 163, 175 (S.D. N.Y. 2008) ; Fed.
Election Comm'n v. Christian Coalition, 179 F.R.D. 22, 24 (D .D .C . 1998) ;
Basinger v. Glacier Carriers, Inc., 107 F.R.D . 771, 772 (M .D . Pa. 1985) . And at
least one court has specifically held that the work product privilege does not
terminate for a criminal case when the criminal case is completed and work
product from the former criminal defense counsel is sought in a subsequent
civil case . See Wood v. McCown, 784, S .W.2d 126, 129 (Tex.App. 1990) .
As the Supreme Court stated in Hickman,
Historically, a lawyer is an officer of the court and is bound to work
for the advancement of justice while faithfully protecting the
rightful interests of his clients. In performing his various duties,
however, it is essential that a lawyer work with a certain degree of
privacy, free from unnecessary intrusion by opposing parties and
their counsel . Proper preparation of a client's case demands that
he assemble information, sift what he considers to be the relevant
from the irrelevant facts, prepare his legal theories and plan his
strategy without undue and needless interference. That is the
historical and the necessary way in which lawyers act within the
framework of our system of jurisprudence to promote justice and
to protect their clients' interests . This work is reflected, of course,
in interviews, statements, memoranda, correspondence, briefs,
mental impressions, personal beliefs, and countless other tangible
and intangible ways-aptly though roughly termed by the Circuit
Court of Appeals in this case (153 F.2d 212, 223) as the Work
product of the lawyer.' Were such materials open to opposing
10
counsel on mere demand, much of what is now put down in
writing would remain unwritten. An attorney's thoughts,
heretofore inviolate, would not be his own. Inefficiency, unfairness
and sharp practices would inevitably develop in the giving of legal
advice and in the preparation of cases for trial. The effect on the
legal profession would be demoralizing . And the interests of the
clients and the cause of justice would be poorly served .
329 U.S . at 510-11 . Other courts have recognized that. the necessity for work
product protection recognized in Hickman may often apply beyond the explicit
limitations of Fed. R. Civ. P. 26(b)(3), in particular to situations in which the
work product of an attorney who does not represent a party in the current
litigation is sought. For example, the United States District Court for the
District of Columbia has stated:
the more considered view appears to be that work product
protection applies (1) to materials prepared for any litigation and
that (2) . . . the protection survives the termination of the litigation
for which it was prepared, and that under the rationale of
Hickman, non-parties should be able to assert work product
privilege claims even though [Fed . R. Civ. P.] 26(b)(3) is phrased
only in terms of the parties.
Federal Election Comm'n, 179 F .R.D . at 24 (citations omitted) . Similarly, the
United States District Court for the Southern District of New York notes that
other courts have recognized that even where Fed. R. Civ. P. 26(b) (3) might not
technically apply when the attorney whose work product is sought does not
represent a party in the current litigation, work product protection might still
be available under the common law work product doctrine. Allied Irish Banks,
252 F.R.D . at 173. So that court stated that "courts should afford work
product protection to non-parties if disclosure would "(1) alter attorney
behavior, (2) reward sloth, or (3) interfere with ongoing litigation ." Id. at 175.
We agree with such cases recognizing that work product protection may
still be available under the common law, particularly Hickman and its progeny,
even where the attorney whose work product is sought does not represent a
party in current litigation, and Fed. R. Civ. P. 26(b)(3) and its counterpart in
Kentucky, CR 26 .02(3)(a), may not technically be applicable. Although we have
not reached this precise issue before today, our precedent has recognized that
CR 26 .02(3)(a) (like its federal counterpart) perhaps does not fully incorporate
the full scope of the work product protection provided in Hickman. See
Morrow, 957 S .W.2d at 724 (noting that "[t]he Federal Rules of Civil Procedure
substantially codified the Hickman decision in what is now Rule 26(b)(3) . Its
counterpart in the Kentucky Rules of Civil Procedure, CR 26.02(3)(a), is
patterned after the Federal Rule . . . .") (emphasis added) . See also id. at 925
(noting that "[t]his case does not fall within the literal terms of CR 26.02(3)(a),
because the rule refers to information generated and impressions gained in
preparation for litigating the case in which the rule is invoked" but,
nonetheless, recognizing some degree of work product protection for
"information generated in a prior case which was final and closed.") . See also
Newsome by and through Newsome v. Love, 699 S.W.2d748, 749 (Ky.App.
1985) ("Some of the language, and all of the spirit, of Hickman v. Taylor was
codified in the federal civil rules amendments to Fed . R . Civ. P. 26(b) . The
Kentucky civil rules closely follow the federal rules and actually are cut from
the federal cloth . . . .") .
The need for work product protection recognized in Hickman - the need
to freely formulate legal theories, discuss the investigation of the case, and
speak with victims and witnesses - is most especially true in criminal
prosecutions, where prosecutors must constantly be cognizant of the rights of
all involved - the defendant, the victim(s), witnesses, and the Commonwealth .
As recognized by the Supreme Court,
Although the work-product doctrine most frequently is asserted as
a bar to discover [sic] in civil litigation, its role in assuring the
proper functioning of the criminal justice system is even more vital.
The interests of society and the accused in obtaining a fair and
accurate resolution of the question of guilt or innocence demand
that adequate safeguards assure the thorough preparation and
presentation of each side of the case.
United States v. Nobles, 422 U .S. 225, 238 (1975) .
Of course, even where work product protection applies, the protection is
not absolute. CR 26.02(3)(a) . When evaluating whether to order disclosure of
work product, courts have typically distinguished between primarily factual,
non-opinion work product, and opinion work product, also called "core" work
product, which includes the "mental impressions, conclusions, opinions, or
legal theories of an attorney." Morrow, 957 S .W .2d at 724 (quoting
CR 26.02(3)(a)) ; see also United States ex rel. Yannacopoulos v. General
Dynamics, 231 F.R.D. 378, 382 (N.D.Ill. 2005) . "Work product which is
primarily factual in nature is not absolutely immune from discovery under the
rule. At best, it receives a qualified protection which is overcome if the
opposing party shows substantial need of the material and inability to obtain it
elsewhere without undue hardship." Transit Authority ofRiver City v. Vinson,
13
703 S.W .2d 482, 486 (Ky.App. 1985) ; see also Duffy v. Wilson, 289 S .W.3d 555,
559 (Ky. 2009) . While this Court recently described mental impressions as
having "complete protection," Duffy, 289 S .W.3d at 559, an exception to that
protection was carved out by this Court in
Morrow:
"We are of the view that
the opinion work product sought to be discovered must be directed to the
pivotal issue in the subsequent litigation and the need for the material must be
compelling ." 957 S .W.2d at 726. Following Upjohn v. United States, 449 U .S.
383, 401-02 (1981), this Court recognized that "a far stronger showing of
necessity and unavailability by other means . . . would be necessary to compel
disclosure [of opinion work product] ."
In
Morrow, a
Morrow,
957 S.W.2d at 726.
dentist who had successfully defended a dental malpractice
suit filed against him subsequently sued the plaintiffs attorneys for wrongful
use of civil proceedings. Id. at 723 . The dentist sought discovery of the
complete litigation file of the plaintiffs attorneys in the prior action, including
opinion work product contained in the file. Id. This Court held that opinion
work product was discoverable because the mental impressions of the
attorneys and whether they believed there was a valid claim was the central
issue in the wrongful use of civil proceedings claim. Id. at 726.
Brightwell argues that because he has likewise shown that the mental
impressions and thought processes of Santry in determining whether to bring
the tampering charge against him were the pivotal issue in his malicious
prosecution case against Scott, he is entitled to her opinion work product in
the case . However, the underlying litigation in Morrow was a civil action, not a
criminal case.
The issue of whether opinion work product of a prosecutor from a
criminal case is discoverable is one of first impression in Kentucky . Some
states have held that the opinion work product of a prosecutor has absolute
immunity from discovery. Smith v. City of New York, 49 A.D .3d 400 (N.Y.
2008) . In criminal cases, the prosecutor's litigation file necessarily contains
more sensitive information than in a civil case - victim and witness
statements; personal information of victims and witnesses; anonymous tips ;
correspondence between the prosecutor and police and witnesses ; and
otherwise confidential information, like KASPER data . We also recognize that
the potential for abuse, vindictiveness, retaliation, and harassment is great
when seeking discovery of a prosecutor's work product, especially in a case like
the one sub judice where the prosecutor has successfully prosecuted the party.
Thus, we adjudge that when discovery is sought of opinion work
product of a prosecutor relative to a prior criminal prosecution, there is a
heightened standard of compelling need that must be met by the party seeking
the discovery. Evaluation of discovery requests for work product should always
be on a document-by-document basis. Brown v. Katz, 868 N .E.2d 1159, 1166
(Ind.Ct.App . 2007) . In cases where discovery of a prosecutor's work product is
sought, the court should consider, among other things, the sensitivity of the
documents ; the safety and security of the victims, witnesses, and jurors; and
the motives of the person seeking the discovery.
15
In the instant case, pursuant to the initial agreed discovery order, Santry
turned over nearly 5,000 pages of documents to Brightwell, which comprised
"all documents provided to it by the Defendant Scott pertaining to the criminal
charges initiated against the Plaintiff." The trial court specifically found that
Santry "represented that she produced all written communications from Scott
that are currently contained in her litigation file." In addition, Santry
responded to more than 50 interrogatories propounded by Brightwell, which
the trial court even noted in its opinion "exceeded the scope of that allowed in
the Court's order of November 30, 2007."3
Without making any distinction between factual work product or opinion
work product, the trial court subsequently issued a blanket order requiring
Santry to produce "all documents generated while the underlying prosecution
of Brightwell was pending, which in any manner related to the decision to
charge Brightwell with Tampering with Physical Evidence, including but not
limited to all reports, memos, correspondence, or notes which were relied upon
in making that charge ." The court further ordered Santry to appear for
deposition by Brightwell. The sole reason cited by Brightwell for his need of
further discovery of Santry and her litigation file is that he wanted to refresh
her recollection or to otherwise pin down exactly what her recollection was
because she stated in her interrogatory responses that she could not recall the
specifics of her conversations with Scott. Both the trial court and the Court of
In the opinion, the trial court admonished Brightwell that any similar disobedience
to the court's orders in the future would result in sanctions.
16
Appeals adjudged that was a sufficient showing of "substantial need" and that
Brightwell could not "obtain the substantial equivalent by other means."
While the trial court has the "ultimate discretion in discoverability,"
Morrow, 957 S .W.2d at 727, the trial court's evaluation of the discovery request
for Santry's opinion work product under the "substantial need" standard for
factual, qualified work product was in error in this case. Further, the trial
court's order made no mention of any in camera review of the material ; and
there is no indication in the record that such in camera inspection was made.
Even in Morrow, the Court strongly recommended "that production of opinion
work product should not be ordered without a prior in camera inspection by
the trial court ." 957 S.W.2d at 726 .
As for whether Brightwell could compel Santry to appear for a deposition
in this case, we note that although attorneys are not immune from being
required to give their depositions regarding cases in which they are counsel,
the work product privilege would likewise apply to information sought in the
deposition . CR 26 .02(l) ; see State ofNew Hampshire v. Superior Court,
350 A.2d 626, 627 (N .H . 1976) . An attempt to depose a prosecutor calls for
special scrutiny because "such depositions inherently constitute an invitation
to harass the attorney . . . ." State v. Anderson, 79 S.W.3d 420, 438 (Mo. 2002)
(quoting State ex rel. Chaney v. Franklin, 941 S.W.2d 790, 793 (Mo.Ct.App .
1997)) . "Further, public policy imperatives for ensuring the effective
functioning of the prosecutor's office militate against requiring prosecutors to
submit to oral discovery concerning their work product." Messenger v. Ingham
17
County Prosecutor, 591 N .W.2d 393, 400 (Mich .Ct.App. 1998) . Even in
Doubleday, wherein the court found that the prosecutors' files were not subject
to work product privilege in the subsequent civil action, the court was reluctant
to allow the prosecutor to be deposed without first examining whether there
existed other means to obtain the requested information . 149 F.R.D . at 614 .
"[D]isclosure of the prosecutorial file is not only a good alternative means, but
may be more complete and accurate . The recordations of the criminal
investigation may stand the test of time better than the individual attorney's
memory of the case." Id. So, on remand to the trial court, after the court has
re-evaluated the discovery request pursuant to this opinion, only as a last
resort should the court allow Brightwell to depose Santry on her work product.
Accordingly, we reverse the denial of the Court of Appeals of the petition
for writ of prohibition and remand for an order granting the writ . In granting
the writ, the Court of Appeals should instruct the trial court to re-evaluate the
request for discovery of Santry's opinion work product under the heightened
"compelling need" standard discussed in this opinion and conduct an in
camera review of the material before permitting discovery of such information.
As for Brightwell's motion to correct the record and dismiss the appeal
because Santry no longer works for the Jefferson County Attorney's Office, we
see no reason why this development would warrant correction of the record or
dismissal of the appeal. Brightwell
is presumably still seeking to depose Santry
and has not abandoned his request for discovery of the former prosecutor's
work product from the Jefferson County Attorney's Office. Accordingly,
18
Brightwell's motion to correct the record and dismiss the appeal is hereby
denied.
Minton, C .J . ; Cunningham, Noble, Schroder, Scott, and Venters, JJ.,
sitting. Minton, C.J. ; Cunningham, Noble, Scott, and Venters, JJ., concur.
Schroder, J., concurs in result only by separate opinion . Abramson, J ., not
sitting .
SCHRODER, J., CONCURRING IN RESULT ONLY: I concur with the
result reached by the majority in this case. I depart, however, from the
majority's decision pursuant to CR 76.32 to grant rehearing of the previously
rendered opinion of this Court. I do not believe the Movant has shown that
this Court misconceived or overlooked a fact or the law in its earlier opinion as
required by CR 76 On the contrary, I question the application of the
.
.32(1)(b)
common law work product privilege when Kentucky has a civil rule covering
the privilege, see CR 26 .02(3), which this Court relied on in the original
opinion .
COUNSEL FOR APPELLANTS :
David A. Sexton
Assistant Jefferson County Attorney
Fiscal Court Building
531 Court Place
Suite 900
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE
HONORABLE FREDERIC J . COWAN,
IN HIS OFFICIAL CAPACITY AS JUDGE OF THE
JEFFERSON CIRCUIT COURT, DIVISION 13 :
Frederic J . Cowan
Jefferson Circuit Court
700 West Jefferson Street
Suite 904
Louisville, Kentucky 40202
COUNSEL FOR REAL PARTY IN INTEREST
BRUCE ALAN BRIGHTWELL :
Bruce Alan Brightwell
1212 State Street
New Albany, Indiana 47150
COUNSEL FOR REAL PARTIES IN INTEREST
CITY OF JEFFERSONTOWN, KENTUCKY,
AND DETECTIVE ROSCOE SCOTT:
Christopher Mills Mayer
716 West Main Street
Suite 300
Louisville, Kentucky 40202
uyrrmr (~Vurf of ~6ufurhv
2009-SC-000596-MR
MICHAEL J . O'CONNELL (IN HIS OFFICIAL CAPACITY
AS THE JEFFERSON COUNTY ATTORNEY), ET AL.
V.
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2008-CA-001561-OA
JEFFERSON CIRCUIT COURT NO . 06-CI-07802
HONORABLE FREDERIC J . COWAN (IN HIS OFFICIAL
CAPACITY AS JUDGE OF THE JEFFERSON CIRCUIT
COURT, DIVISION 13), ET AL.
APPELLEES
ORDER GRANTING PETITION FOR REHEARING
AND MODIFYING OPINION
The Appellee Bruce Alan Brightwell (Real Party in Interest) having
filed a Petition for Rehearing of the Opinion of the Court by Justice
Schroder) rendered May 20, 2010 ; and the Court having reviewed the
record and being otherwise fully and sufficiently advised ;
The Court ORDERS that the Appellee's petition is GRANTED ; and
the Opinion of the Court by Justice Schroder, rendered May 20, 2010, is
MODIFIED on its face; and the attached Memorandum Opinion of the
Court is substituted therefor . The modification doe s not affect the
holding of the case.
Minton, C .J . ; Cunningham, Noble, Schroder, Scott, and Venters,
JJ., sitting . Minton, C. J. ; Cunningham, Noble, Scott, and Venters, JJ.,
concur. Schroder, J ., concurs in result only. Abramson, J ., not sitting .
ENTERED : December 16, 2010 .
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