SCOKY Requires In Camera Review, Privilege Log, or Offer of Proof Before Entertaining Extraordinary Writ to Uphold a Claim of Privilege Where Such Is In Dispute

By David Kramer | dkramer@dbllaw.com

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In Collins v. Braden, 2011-SC-000770, 2012 WL 5285717 (Ky. 2012), http://opinions.kycourts.net/sc/2011-SC-000770-MR.pdf, the Kentucky Supreme Court reversed a writ of prohibition that had been issued by the Kentucky Court of Appeals, holding that the party that sought the writ should have been required to seek an in camera review of the documents in question by the trial court or to produce a privilege log or make an offer of proof in order to establish the privileged nature of the documents. The Court of Appeals had ruled the documents, which were generated as a result of the investigation into an adverse patient outcome by a hospital’s legal counsel, fell within the scope of the attorney-client privilege under the case of St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005). The hospital had sought the writ of prohibition to preclude the trial court from ordering production of the documents, relying on the “certain special cases” line of writ cases originating with Bender v. Eaton, 343 S.W.2d 749 (Ky. 1961), that had approved of the issuance of a writ to preclude a trial court from erroneously compelling production of nondiscoverable information that is privileged or confidential.

The Supreme Court, in an opinion by Justice Noble, noted that the documents at issue might very well be privileged, but stated that for purposes of the record in an extraordinary writ case in which the petitioner seeks to preclude compelled production based on a claim of privilege, the petitioner should take one of three steps to establish the privileged nature of the documents if such is in dispute: (1) submit the documents for in camera review by the trial court, with the trial court providing a description of the documents or factual bases for the privilege; (2) furnish the trial court and the opposing party a privilege log with information about the documents sufficient to establish their privileged nature; or (3) provide a description of the documents in an offer of proof in the manner provided for in KRE 105(b). Provided the documents relate to confidential communications made by the client or employees of the client in the course and scope of their employment in order to obtain or further the rendition of legal services, the trial court should not order them produced, and a writ will lie to preclude the trial court from erroneously compelling their production.

The Court noted that in some cases the existence of a privilege may be evident from the record without one of the three methods outlined in the opinion, as was the case in St. Luke Hospitals v. Kopowski.

Unlike the federal civil rules, which require preparation of a privilege log (see FRCP 26(b)(5)(A)(ii)), the Kentucky civil rules do expressly not mention the process. However, the following statement from 7 Philipps & Kramer, Kentucky Practice, “Rules of Civil Procedure Annotated,” CR 26.02, Comment 7 at p. 616 (5th ed. 2005), addresses privilege logs: “Some trial courts in Kentucky have begun to require production or exchange of privilege logs as a means to require parties to establish a basis for a claim of privilege and to narrow discovery disputes about potentially privileged documents. Where the nature of the discovery request itself appears on its face to seek privileged documents, however, production of a privilege log may be unnecessary.”

The Collins v. Braden decision was designated for publication and became final on November 15, 2012. It will be published soon in the South Western Reporter and may be cited as authority.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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