University of Louisville v. Hon. Audra J. Eckerle, Judge, Jefferson Circuit Court ( 2021 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: AUGUST 26, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0216-MR
UNIVERSITY OF LOUISVILLE AND APPELLANTS
RUBY D. FENTON
ON APPEAL FROM COURT OF APPEALS
V. NO. 2018-CA-0280
JEFFERSON CIRCUIT COURT NO. 15-CI-001410
HONORABLE AUDRA JEAN ECKERLE, APPELLEES
JUDGE, JEFFERSON CIRCUIT COURT
C. WILLIAM HELM REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Court of Appeals denied University of Louisville (“U of L”) and Ruby
D. Fenton’s petition for a writ of prohibition/mandamus to enjoin a Jefferson
Circuit Court discovery order. U of L and Fenton now seek review of the
adverse decision in this Court. The sole question presented is whether the
work-product privilege1 precludes discovery.
For the second time, this case is before this Court for resolution of a
discovery dispute related to production of allegedly privileged materials. The
lengthy historical and procedural history in this matter was detailed in our
1 Kentucky Rules of Civil Procedure (CR) 26.02(3)(a).
previous opinion, Univ. of Louisville v. Eckerle, 580 S.W.3d 546 (Ky. 2019)
(“Eckerle I”). A comprehensive recitation of those same facts and history is
unnecessary for deciding the issue presented for review. In summary, Dr. C.
William Helm first filed suit against U of L in 2014 related to his employment
and the 2010 nonrenewal of his faculty appointment. During discovery, Helm
sought production of notes and written communications between Fenton—an
attorney who previously represented U of L and who also was retained to
represent two of Helm’s supervisors in a faculty grievance proceeding initiated
by Helm—and any person affiliated with U of L relating to the grievance
proceeding. U of L and Fenton refused to produce the requested documents,
asserting they were protected from disclosure by the attorney-client privilege2
and the work-product privilege. In September 2016 the trial court denied U of
L and Fenton’s request to quash the subpoena but determined the attorney-
client privilege applied and ordered U of L and Fenton to produce a privilege
log. U of L and Fenton sought a writ of prohibition in the Court of Appeals
which was denied. A detailed privilege log was subsequently prepared. None of
the 396 entries relied on the work-product privilege as a basis for exclusion
from discovery.
In response to a renewed motion to compel filed by Helm seeking the
same documents previously requested, the trial court reversed course in a
February 15, 2018, order, which permitted discovery of all communications
2 Kentucky Rules of Evidence (KRE) 503.
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between Fenton and anyone associated with U of L other than the two
supervisors Fenton represented in the faculty grievance proceeding. U of L and
Fenton again sought a writ in the Court of Appeals. That Court remanded to
the trial court for additional findings regarding the applicability of the attorney-
client privilege. After the trial court complied with the order on remand and
concluded the attorney-client privilege did not apply, the Court of Appeals
denied the writ petition.
U of L and Fenton appealed the denial to this Court. In Eckerle I, we
concluded the disputed materials were not entitled to protection from
production by the attorney-client privilege and affirmed the Court of Appeals on
that issue. However, because its decision failed to address the separate issue,
we remanded the matter to the Court of Appeals for a determination of whether
the work-product privilege was applicable.
The Court of Appeals subsequently remanded the matter to the trial
court for additional fact finding relative to the work-product privilege. On
January 17, 2020, the trial court entered an order finding the disputed
communications were not protected by the work-product privilege. In support,
the trial court found the lack of an attorney-client relationship between Fenton
and the U of L employees apart from the two supervisors eliminated the
possibility of the creation of any work product. Additionally, the trial court
found U of L had previously relied only on the attorney-client privilege in
seeking to prohibit disclosure and had not asserted the work-product privilege
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until the most recent entreaty to the appellate courts. For the third time, U of
L and Fenton sought a writ of prohibition/mandamus.
The Court of Appeals concluded the trial court was incorrect in holding
the absence of an attorney-client relationship foreclosed applicability of the
work-product doctrine. However, based on a review of the record, the Court of
Appeals held Fenton’s communications were not made in anticipation of
litigation and therefore did not constitute attorney work product. In support,
the Court of Appeals noted Fenton had executed an affidavit which failed to
address the work-product privilege and did not detail how any of the
communications were made in anticipation of litigation. Further, the Court of
Appeals indicated investigations related to faculty grievance proceedings are
undertaken in the normal course of U of L’s business practices and noted the
four-year delay between the communications at issue and Helm’s filing of the
instant lawsuit weighed against applying the privilege. Because U of L had
failed to meet its burden of proving entitlement to the privilege or that the trial
court had clearly erred, the Court of Appeals denied the requested writ. This
appeal followed.
Before this Court, U of L and Fenton assert the Court of Appeals erred in
failing to acknowledge or conclude the faculty grievance proceedings
constituted “litigation” for purposes of the work-product privilege. Thus, they
argue the ultimate decision by the Court of Appeals was based on a faulty
premise, thereby rendering its denial of their writ petition infirm.
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The standard for granting a writ of prohibition is set forth in Hoskins v.
Maricle as follows:
A writ . . . 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, 10 (Ky. 2004); see also CR 81.
It is well-settled that writs of prohibition represent such an extraordinary
remedy Kentucky courts “have always been cautious and conservative both in
entertaining petitions for and in granting such relief.” Bender v. Eaton, 343
S.W.2d 799, 800 (Ky. 1961). Whether to grant a writ is inherently
discretionary and absent the existence of an overarching question of law
dominating the controversy, we typically review the Court of Appeals’ decision
to grant or deny a writ for an abuse of discretion. Southern Financial Life Ins.
Co. v. Combs, 413 S.W.3d 921, 926 (Ky. 2013) (citation omitted). Here,
however, the Court of Appeals denied the writ petition without exercising
discretion because it concluded U of L had failed to prove applicability of the
work-product evidentiary privilege, and, for that reason, had failed to show the
trial court acted in error by declining to prohibit disclosure of the requested
documents. Thus, the abuse of discretion standard is inapplicable. Instead,
because factual findings made by the Court of Appeals relative to applicability
of the privilege are in question, we review them for clear error. Id. See also
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Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). If necessary,
we review de novo the legal question of whether the privilege applies. Id.The burden of proving applicability of a privilege rests solely on the party
claiming its benefit. Stidham v. Clark, 74 S.W.3d 719, 725 (Ky. 2002) (citation
omitted). “The essence of a privilege is to prohibit disclosure, and thus also
discovery.” Commonwealth, Cabinet for Health and Family Servs. v. Chauvin,
316 S.W.3d 279, 287 (Ky. 2010). Thus, privileges are disfavored and must be
strictly construed. Stidham, 74 S.W.3d at 722-23 (citing Slaven v.
Commonwealth, 962 S.W.2d 845, 853 (Ky. 1997)).
The work-product privilege is not a pure privilege and is far from
absolute. The protection of this privilege stems from CR 26.02(3) and its
applicability is determined under a two-part test:
First, the court must determine whether the document is work
product because it was prepared “in anticipation of litigation.” . . .
Second, if the document is work product, the court must
determine whether the requesting party has a “substantial need” of
the document and is unable to obtain the “substantial equivalent”
without “undue hardship.”
Duffy v. Wilson, 289 S.W.3d 555, 559 (Ky. 2009).
In the present appeal, the Court of Appeals denied U of L’s petition for a
writ after finding the university had failed to show Fenton’s electronic
communications were made “in anticipation of litigation” and therefore could
not qualify as work product under the first prong of the CR 26.02(3) test. U of
L contends the employee grievance process qualifies as “litigation” and the trial
court and Court of Appeals erred in not so concluding. Alternatively, U of L
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asserts litigation was imminent should the grievance process fail and therefore
Fenton’s communications should be deemed to have been made in preparation
for the impending lawsuit. We disagree with U of L.
Over the course of this matter, U of L has presented a shifting stance on
whether an employee grievance proceeding constitutes “litigation.” Notably,
when deemed beneficial to its defense, U of L has repeatedly referenced the
grievance process as non-judicial, non-binding, and non-legal, not a tribunal,
and has declared the grievance panels whose decisions are owed no deference
outside U of L itself are not legal bodies equivalent to courts of law. Further, U
of L has gone so far as to declare the “non-legal” nature of grievance process
created no obligation to preserve documents in anticipation of litigation.
Conversely, now that its previous position is no longer advantageous, U of L
asserts the grievance process is quasi-judicial, akin to arbitration, mediation,
or other forms of alternative dispute resolution, thereby entitling it to discovery
protections.
In advocating this new stance, U of L paints a dim picture of the future of
all non-judicial proceedings should this Court not accept its expansive view of
what constitutes “litigation.” However, the question of whether the university’s
employee grievance procedure qualifies as “litigation” for purposes of the work-
product evidentiary privilege is not properly before us. U of L’s transformed
characterization of the nature of its employee grievance proceedings is of recent
vintage, without having been previously presented to any lower court. In
contravention of CR 76.12(4)(c)(v), U of L includes no statement of preservation
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for this argument in its brief filed with this Court, and our review of the record
has not uncovered any prior attempt to advance the present argument.
Attempting to present new reasons supporting its position at this late
date is improper. The argument could have been raised in the trial court, but
most certainly should have been raised before the Court of Appeals—which was
acting as a trial court in the initial writ proceedings.
“[A] party is not entitled to raise an error on appeal if he has not called
the error to the attention of the trial court and given that court an opportunity
to correct it.” Little v. Whitehouse, 384 S.W.2d 503, 504 (Ky. 1964). It is
axiomatic that a party may not “feed one can of worms to the trial judge and
another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219,
222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312
S.W.3d 321, 327 (Ky. 2010) (citations omitted)). To the extent the Court of
Appeals was not presented this additional argument, nor given the opportunity
to rule thereon, we shall not consider it for the first time on appeal.
Nevertheless, even were we inclined to entertain this new argument at
such a late stage in this already aged dispute, we believe U of L was correct in
its initial assessment of the qualities of the university’s employee grievance
process; that is, it does not constitute litigation. Although the parties in the
employee grievance process are typically represented by attorneys, the mere
presence of counsel does not magically transform an internal, non-binding
process regarding employment disputes among colleagues and coworkers into a
judicial or even quasi-judicial action. Likewise, U of L’s untimely epiphany and
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unilateral characterization of its employee grievance process as “litigation” as
required under the work-product evidentiary privilege is likewise insufficient to
transform the character of the internal, non-binding proceedings.
Next, we turn to U of L’s assertion that the Court of Appeals erred in
concluding Fenton’s communications were not prepared in anticipation of
litigation. We hold it did not. Determination of whether a document was
prepared in anticipation of litigation is judged by “whether, in light of the
nature of the document and the factual situation in the particular case, the
document can fairly be said to have been prepared or obtained because of the
prospect of litigation.” Duffy, 289 S.W.3d at 559. Litigation must be imminent
or pending, and “the mere potential for litigation is not sufficient to place
documents within the scope of the work-product doctrine.” Univ. of Kentucky
v. Lexington H-L Servs., Inc., 579 S.W.3d 858, 865 (Ky. App. 2018).
Here, the Court of Appeals reasonably concluded Fenton had not
attempted to address, and U of L had not shown, how any of the
communications from 2009-2010 had been prepared in anticipation of a
lawsuit filed nearly four years later. The Court of Appeals also reasonably
found the faculty grievance process and investigation was conducted in the
normal course of the university’s business, rather than in anticipation of
impending litigation. Based on these factual findings, the Court of Appeals
held U of L had failed in its burden of demonstrating Fenton’s communications
constituted work product for purposes of invoking the evidentiary privilege.
Although U of L alleges litigation was imminent if the grievance could not be
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informally resolved, we deem it is unreasonable to expect litigation to stem
from each and every employee grievance proceeding. Based on our review of
the record, we are unpersuaded the Court of Appeals clearly erred in its
assessment that Fenton’s communications were unrelated to any litigation—
whether actual, imminent, or threatened. Having reasonably found U of L did
not carry its burden of demonstrating entitlement to the work-product
evidentiary privilege because of the failure to satisfy the first prong of the test
under CR 26.02(3), the Court of Appeals committed no error in declining to
issue the requested writ.
For the foregoing reasons, the Court of Appeals order denying U of L and
Fenton’s petition for a writ of prohibition/mandamus is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Craig Christman Dilger
Steven Terrell Clark
Stoll Keenon Ogden PLLC
APPELLEE:
Hon. Audra J. Eckerle
Judge, Jefferson Circuit Court
COUNSEL REAL PARTY IN INTEREST, C. WILLIAM HELM:
Michael Wayne Oyler
Furman & Nilsen PLLC
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