3M COMPANY V. HON. WILLIAM ENGLE III, JUDGE, PERRY CIRCUIT COURT, ET AL. AND KENTUCKY MINE SUPPLY, ET AL.
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CORRECTED : DECEMBER 27, 2010
RENDERED : DECEMBER 16, 2010
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3M COMPANY
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-001620-OA
PERKY CIRCUIT COURT NO. 06-CI-00571
V
HON. WILLIAM ENGLE III,
JUDGE, PERKY CIRCUIT COURT, ET AL.
AND
KENTUCKY MINE SUPPLY, ET AL.
APPELLEES
REAL PARTIES IN INTEREST
AND
2010-SC-000163-MR
AMERICAN OPTICAL CORPORATION
AND 3M COMPANY
V.
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2009-CA-001620-OA
PERKY CIRCUIT COURT NO . 06-CI-00571
DELBERT MILLER, ET AL.
APPELLEES
OPINION OF THE COURT BY JUSTICE SCAHH[R10CqDC0EEJR3
REVERSING - - -VACATING
Defendants /Appellants appeal from an order of the Court of Appeals
issuing a writ of prohibition to prevent the deposition of the Plaintiffs/
Appellees' attorney in the underlying civil suit . We conclude that the Court of
Appeals erred in issuing the writ. The trial court did not act erroneously, and
the Plaintiffs have waived attorney-client privilege with respect to the matters
about which the attorney is to be deposed. Therefore, we reverse and vacate
the Court of Appeals' issuance of the writ.
I. BACKGROUND
Plaintiffs/ Appellees (collectively "the Plaintiffs") are a group of coal
miners' suffering from coal workers' pneumoconiosis (CWP), also known as
"black lung." The miners, alleging that the respirator equipment they used
throughout their careers was defective, filed suit against the manufacturers
and distributors of the equipment . Defendants/ Appellants 3M Company (3M)
and American Optical Corp. (American Optical) (collectively "the Defendants")
are both manufacturers of allegedly defective equipment.
Following discovery, the Defendants filed motions for summary
judgment, asserting that the Plaintiffs' claims were barred by the one-year
statute of limitations .2 Relying on the discovery rule,3 the Plaintiffs asserted
that they did not learn of a possible connection between their CWP and
defective respirators until informed by their attorney . Each plaintiff submitted
an affidavit, stating:
1 filed this lawsuit within one year of the date 1 was
informed by my attorney in this lawsuit that there may
1 The Plaintiffs also include the estates of several deceased coal miners .
2 KRS 413 .140(1)(a) .
3 Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497, 501 (Ky. 1979).
Though not an issue in this writ action, it should be noted, in relation to the
discovery rule, that the Plaintiffs allege that the Defendants concealed the defective
nature of the respirators .
be a causal connection between my lung disease and
defects in the respirators that I wore throughout my
career.
I was never told by any prior attorney,
government agency, or other person that there might
be a connection between any dust mask and my
disease.
Judge William Engle III, respondent in the original writ action, denied the
Defendants' motions for summary judgment, finding that there was a genuine
issue of material fact as to when the Plaintiffs' causes of action accrued.
Following the trial court's ruling, the Plaintiffs stated, through additional
discovery, that the only persons with whom they discussed a possible
connection between respirators and their CWP were their attorneys, Alva
Hollon, Jr. and James D . Holliday, and that they did so at a meeting occurring
nearly one year before their suits were filed.
The Defendants sought to depose Plaintiffs' attorney James Holliday, in
order to learn when he first discussed with the Plaintiffs a possible connection
between their respirators and CWP, as well as when he himself first learned of
such a possible connection . 3M also submitted interrogatories and requests
for production to Holliday, which included requests to disclose when and how
Holliday first learned of any theory of liability against 3M, to describe the
substance of Holliday's discussions with his clients, to elaborate on the
substance of a meeting with his clients, and to produce his "entire file for each
prior matter in which he has represented" the Plaintiffs . The Plaintiffs filed
motions for a protective order against the deposition, and against the
interrogatories and requests for production .
With regard to the deposition of attorney Holliday, Judge Engle denied
the Plaintiffs' motion for a protective order and ordered Holliday to appear to be
deposed. With regard to the Defendants' interrogatories and requests for
production, Judge Engle granted the Plaintiffs' motion for a protective order on
an interim basis, pending Holliday's deposition and further orders from the
court. The Plaintiffs sought a writ of prohibition from the Court of Appeals to
prevent enforcement of Judge Engle's order requiring that Holliday be deposed.
The Court of Appeals granted the writ, and 3M and American Optical now
appeal to this Court.
II. ANALYSIS
Whether to issue a writ is always discretionary. 4 A writ may be granted
in two classes of cases. 5
The first is where "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 . . . ."6 It is undisputed that this first class
of writ does not apply to this case.
The second class of writ may issue where "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
4 Hoskins v. 1Vlaricle, 150 S.W.3d 1, 9 (Ky. 2004).
5 Id. at 10 .
6 Id.
injury will result if the petition is not granted." 7 The petitioner must generally
be the party who stands to suffer great injustice and irreparable injury.$
However, even where the petitioner does not stand to suffer irreparable
injury, 9 "in certain special cases," a writ may issue where "the administration
of justice generally will suffer the great and irreparable injury ."lo The Court of
Appeals issued the writ in this case under the "certain special cases"
subcategory. For writs of this type, we conduct a de novo review of the decision
of the Court of Appeals . U
A. Attorney-Client Privilege Implicates The "Certain Special Cases" Writ
Taking as true the Plaintiffs' claim of error by the trial court, as we are
required to do at this stage in the analysis, 12 our precedents indicate that,
where privileged information is in danger of being disclosed, there is no
7M .
8 Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961) .
9 See Grange Mut. Ins. Co. v. Trude, 151 S .W.3d 803, 808 (Ky. 2004) (defining an
irreparable injury as "something of a ruinous nature", quoting Bender, 343 S.W.2d
at 801) .
to Bender, 343 S.W .2d at 801 . See also Toyota Motor Mfg., Kentucky, Inc. v. Johnson,
S.W.3d
2010) .
, No. 2007-SC-000647-MR, 2010 WL 2470855, at *2 (Ky. Mar. 19,
11
Grange, 151 S .W.3d at 810 .
12
St. Luke Hosp ., Inc. v. Kopowski, 160 S.W.3d 771, 774-75 (Ky. 2005) ("In executing
our cautious review to ensure that a party meets the required threshold of harm
and lack of redressability on appeal, we take as true the movant's claim of error.
This is not to say, however, that error was committed . That is a question deferred to
the next stage of analysis . This Court said it this way in Bender v. Eaton, `[t]his is a
practical and convenient formula for determining, prior to deciding the issue of
alleged error, if petitioner may avail himself of this remedy ."') (quoting Bender, 343
S.W.2d at 801) (footnotes omitted) (brackets in original) (emphasis in Bender) .
5
adequate remedy on appeal. 13 While there is also generally no irreparable
injury to the petitioner personally, any discovery that violates the attorneyclient privilege implicates the "certain special cases" subcategory of writ, in
which the harm is to the administration of j us ti ce . 14 Because the Plaintiffs
would be entitled to issuance of a writ if their claim of error were true, we now
consider whether the trial court acted erroneously.
B. The Trial Court Did Not Act Erroneously
The deposition of opposing counsel is governed by McMurry v. Eckert. 1 5
Under McMurry, opposing counsel may only be deposed upon a showing by the
party seeking discovery that (1) the information sought is relevant and not
privileged, (2) no other means exist to obtain the information, and (3) the
information is crucial to the preparation of the case. 16
1 . Relevant and Not Privileged
Kentucky's attorney-client privilege is found in KRE 503, the substance
of which grants a client "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
. . . :" 17 However, a client "waives the privilege if he . . . voluntarily discloses or
Id. at 775 .
14 Id.
15 833 S .W.2d 828 (Ky. 1992).
16 Id. at 830 (quoting Shelton
v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.
1986)) .
17 KRE 503(b) .
13
consents to disclosure of any significant part of the privilege matter." 1 s This
waiver may be explicit, but it may also be implied . Professor Lawson has
explained the concept of implied waiver:
The client may waive the [attorney-client] privilege by
taking positions that place the substance of the
communications in issue . . . . A position that seems
often to bring implied waiver into play is clients' claim
that they acted or refrained from acting on advice of
counsel . . . . With this and other similar positions,
the inquiry for the trial court "is whether allowing the
privilege to protect against disclosure of the
information would be manifestly unfair to the opposing
party ." 19
This Court has also acknowledged the concept of implied waiver.2o
In latent disease cases such as this one, a plaintiffs cause of action
accrues when he discovers, or in the exercise of reasonable diligence should
have discovered, that he has been injured and that his injury may have been
caused by the defendant.21 Once a plaintiffs cause of action has accrued, he
has one year in which to file suit, after which his claim is barred by the statute
18
19
20
21
KRE 509 . See also St. Clair v. Commonwealth, 140 S.W.3d 510, 548-49 (Ky. 2004) .
ROBERT G. LAwSON, THE KENTUCKY EVIDENCE LAw HANDBOOK, § 5.05[10], at 363-64
(4th ed . 2003 8s 2010 supp.) (footnotes omitted) (quoting Home Indem. Co. v. Lane
Powell Moss & Miller, 43 F .3d 1322, 1326 (9th Cir. 1995)) . See also United States v.
Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991) ; Hearn v. Rhay, 68 F.R .D . 574, 581
(E.D . Wash . 1975) (discussing three factors found in cases of implied waiver: "(1)
assertion of the privilege was a result of some affirmative act, such as filing suit, by
the asserting party; (2) through this affirmative act, the asserting party put the
protected information at issue by making it relevant to the case; and (3) application
of the privilege would have denied the opposing party access to information vital to
his defense.") .
See Lexington Public Library v. Clark, 90 S .W.3d 53, 61 (Ky. 2002) (holding that any
privilege was waived when the privileged information was voluntarily disclosed to a
third party, and referencing the concept of implied waiver).
Johns-Manville Products Corp., 580 S.W.2d at 501 (citing Raymond v. Eli Lilly & Co.,
371 A.2d 170, 174 (N .H . 1977)) .
of limitations .22 When a plaintiff is put on notice of his injury is a question of
fact for the jury .23
The Plaintiffs assert that their causes of action did not accrue until their
attorney informed them of a connection between their respirator equipment
and CWP. As a result of this assertion, the nature and timing of the Plaintiffs'
communications with their attorney, regarding this possible connection, has
become not only relevant, but in fact critical to the case . In addition, the
circuit court relied on the Plaintiffs' representations when it denied the
Defendants' motions for summary judgment . Under these circumstances,
"allowing the privilege to protect against disclosure of the information would be
manifestly unfair" to the Defendants . 24
Furthermore, under certain circumstances, an attorney's knowledge may
be imputed to his or her client.25 Therefore, also at issue in this case is when
the Plaintiffs' attorneys learned of a possible connection between the
Defendants' equipment and CWP, and whether that knowledge can be imputed
to the Plaintiffs under the circumstances as they existed at that time.2s
22 See KRS 413 .140(1)(a) .
23 Lipsteuer v. CSX 7i*ansp., Inc., 37 S .W.3d 732, 737 (Ky. 2000) ; Lynn Mining Co. v.
Kelly, 394 S .W.2d 755, 759 (Ky. 1965) .
24 LAwsolv, supra n.19.
25
26
See, e.g., Drinkard v. George, 237 Ky. 560, 36 S.W.2d 56, 57 (1930) ; Lisanby v.
Illinois Cent. R.R. Co., 209 Ky. 325, 272 S.W. 753, 754-55 (1925); Barnes v.
Commonwealth, 179 Ky. 725, 201 S.W. 318, 322 (1918) . See also Michels v.
Sklavos, 869 S.W.2d 728, 731-32 (Ky. 1994) .
The general rule that an attorney's knowledge may be imputed to his or her client is
subject to a number of exceptions. 7A C.J .S. Attorney & Client § 225 ("Accordingly,
knowledge which an attorney obtained in transactions independent of his or her
representation of the client is not imputed to the client, and a client is not affected
8
To the extent that the Plaintiffs have placed their communications with
Holliday at issue in this case, they have impliedly waived the attorney-client
privilege . For the same reasons, the information the Defendants seek to gain
by deposing Holliday is highly relevant . The information sought is therefore
relevant and not privileged .27
2 . No Other Means of Obtaining the Information
The Defendants also have no other means of obtaining the information
they seek other than through the deposition of opposing counsel. Depending
upon the circumstances of representation, the Plaintiffs' attorneys' knowledge
of a possible connection between CWP and respirator equipment may be
attributable to the Plaintiffs .28 Thus, only Holliday and the Plaintiffs' other
attorneys are in a position to explain when they first learned of a possible
connection, what the circumstances of their representation of the Plaintiffs
27
28
with notice because of knowledge obtained by the attorney from outside sources
and not in the course of his or her employment, as, for example, where the
knowledge is acquired by the attorney in the performance of professional services
for another . Nor is the client affected by knowledge acquired, or notice received, by
the attorney before the commencement of the attorney-client relationship .") .
Of course, for matters that remain privileged, -the Plaintiffs would retain the right to
object and seek a protective order or other relief pursuant to CR 26.03, CR 30 .03,
and CR 30 .04 . We also note that much of the Plaintiffs' argument focuses on 3M's
interrogatories and requests for production . Admittedly, much of the information
and many of the documents sought by 3M are likely protected from disclosure by
attorney-client privilege or by the work product doctrine . See CR 26.02(3) .
However, at this time, a protective order remains in effect preventing the Plaintiffs
from being required to disclose this information or to turn over the requested
documents. Judge Engle was clearly postponing ruling on these interrogatories and
requests for production until after Holliday had been deposed. There is therefore no
evidence that the lower court "is acting or is about to act erroneously[ .]" Hoskins,
150 S.W.3d at 9 .
See, e.g., Michels, 869 S.W.2d at 731-32 ; Drinkard, 36 S .W.2d at 57 ; Lisanby, 272
S.W. at 754-55 ; Barnes, 201 S .W. at 322; but see 7A C .J.S . Attorney & Client § 225.
were at that time, when they informed the Plaintiffs of a possible cause of
action, and how they went about informing the Plaintiffs . This information is
highly relevant to the Defendants' statute of limitations defense, and cannot be
obtained by any means other than by deposing opposing counsel.
3. Crucial to the Preparation of the Case
The information the Defendants seek to obtain by deposing Holliday is
relevant in determining whether the Plaintiffs' claims are barred by the statute
of limitations. As stated previously, once a plaintiffs cause of action has
accrued, he must file suit within one year, or else his claim is barred by the
statute of limitations.29 The information the Defendants seek to obtain could
very well determine the ultimate outcome in this case . We therefore see no way
that this information is not crucial to the preparation of the Defendants' case.
The information the Defendants seek to obtain by deposing Holliday is
relevant and not privileged, not capable of being obtained by other means, and
crucial to the preparation of the case. Therefore, the trial court did not act
erroneously in permitting the Defendants to depose Holliday.
III. CONCLUSION
With respect to the matters about which the Defendants seek to depose
attorney Holliday, the Plaintiffs have waived the attorney-client privilege . Thus,
the Plaintiffs did not make the showing necessary for the issuance of an
extraordinary writ, because the trial court did not act erroneously in
29
See KRS 413 .144(1)(a) .
10
compelling Holliday to appear to be deposed . Therefore, we reverse and vacate
the Court of Appeals' issuance of the writ.
All sitting. All concur.
COUNSEL FOR APPELLANT 3M COMPANY:
Adam Benjamin Shadburne
Byron N. Miller
Thompson Miller Sv Simpson PLC
734 West Main St., Suite 400
Louisville, KY 40202
Bryant Jonathan Spann
Allen Guthrie & Thomas, PLLC
500 Lee St. E., Suite 800
P.O. Box 3394
Charleston, WV 25333-3394
COUNSEL FOR APPELLANT/ REAL PARTY IN INTEREST AMERICAN OPTICAL
CORP. :
Carol Dan Browning
Julie Marie McDonnell
Robert Michael Connolly
Whitney Frasier Watt
Stites 8v Harbison, PLLC
400 W. Market St., Suite 1800
Louisville, KY 40202-3352
APPELLEE:
Hon . William Engle III
Judge, Perry Circuit Court
Hall of Justice
545 Main St.
Hazard, KY 41701
COUNSEL FOR APPELLEES DELBERT MILLER, ET AL. :
Alva A . Hollon, Jr.
John Oaks Hollon
Sams 8v Hollon, P.A.
9424 Baymeadows Rd., Suite 160,
Jacksonville, FL 32256-7967
James Douglas Holliday
P.O. Box 29
Hazard, KY 41702-0029
12
COUNSEL FOR REAL PARTY IN INTEREST KENTUCKY MINE SUPPLY :
Craig Robert Banford
James David Bolen, Jr.
Huddleston Bolen Beatty Porter & Copen LLP
611 3rd Ave .
P.O . Box 2185
Huntington, WV 25701
COUNSEL FOR REAL PARTY IN INTEREST THE SPECIAL FUND :
David Eric Lycan
William Harvey May
Hurt, Crosbie, May, PLLC
127 W. Main St.
Lexington, KY 40507
COUNSEL FOR REAL PARTY IN INTEREST MINE SAFETY APPLIANCES
COMPANY:
Milton Trent Spurlock
Phillips Parker Orberson 8s Moore, P.L.C .
716 West Main St., Suite 300
Louisville, KY 40202
Robert Young Gwin
Gwin Steinmetz Miller 8s Baird, PLLC
401 West Main St., Suite 1000
One Riverfront Plaza
Louisville, KY 40202
COUNSEL FOR REAL PARTY IN INTEREST MINE SERVICE COMPANY, INC. :
Patrick W. Gault
Napier Gault Keith PLC
1400 Starks Bldg.
455 S. 4th St.
Louisville, KY 40202
COUNSEL FOR REAL PARTY IN INTEREST WORKERS' COMPENSATION
FUND :
Robert L. Whittaker
Department Of Labor
1047 US Hwy. 127 S ., Suite 4
Frankfort, KY 40601-4381
13
,~$Uvrrmr Courf of ~irufurhv
2010-SC-000125-MR
3M COMPANY
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-001620-OA
PERRY CIRCUIT COURT NO. 06-CI-00571
HON. WILLIAM ENGLE III,
JUDGE, PERRY CIRCUIT .COURT, ET AL.
AND
KENTUCKY MINE SUPPLY, ET AL.
APPELAEES
REAL PARTIES IN INTEREST
AND
2010-SC-000163-MR
AMERICAN OPTICAL CORPORATION
AND 3M COMPANY
V.
APPELLANTS
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-001620-OA
PERRY CIRCUIT COURT NO . 06-CI-00571
APPELAEES
DELBERT MILLER, ET AL.
ORDER OF CORRECTION
On the Court's own motion, the Opinion of the Court by Justice
Schroder, rendered December 16, 2010, is hereby corrected by substituting
pages 1 and 8 of the opinion as attached hereto, in lieu of pages 1 and 8 of the
opinion as originally rendered. Said correction does not affect the holding.
ENTERED : December 27, 2414 .
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