Latrice Marie Leslie-Johnson, Individually v. Honorable Audra Jean Eckerle ( 2022 )

RENDERED: SEPTEMBER 22, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0450-MR
LATRICE MARIE LESLIE-JOHNSON AND APPELLANTS
ANTHONY ANTIOUS JOHNSON, SR.,
INDIVIDUALLY, AND AS CO-
ADMINISTATORS OF THE ESTATE OF
ANTHONY ANTIOUS JOHNSON, JR.
ON APPEAL FROM COURT OF APPEALS
V. NO. 2021-CA-0131
JEFFERSON CIRCUIT COURT NO. 17-CI-03363
HONORABLE AUDRA ECKERLE, JUDGE, APPELLEE
JEFFERSON CIRCUIT COURT
AND
NORTON HOSPITALS, INC. D/B/A
NORTON HOSPITAL;
NORTON HEALTHCARE, INC.;
MARCELLO PIETRANTONI, M.D. AND
KENTUCKIANA PERINATOLOGY, P.S.C. REAL PARTIES IN INTEREST
OPINION OF THE COURT BY JUSTICE VANMETER
AFFIRMING
Petitioners, Latrice and Anthony Johnson, Sr. (the Johnsons), filed a
petition seeking a writ of prohibition in the Kentucky Court of Appeals to
prohibit the enforcement of a July 30, 2020, Jefferson Circuit Court order
directing the couple to provide defendants Norton Healthcare (Norton) with nine
years of Facebook data. Concurrently, the Johnsons sought a writ of
mandamus directing the Jefferson Circuit Court to enter a different, and
severely constrained, discovery order. Following a close review of the record
and the issues, we affirm the Court of Appeals’ order denying the motion for
writs of prohibition and mandamus.
I. Background.
In 2012, Latrice Johnson gave birth to her son, Anthony, Jr., by way of
an emergency c-section. Unfortunately, Anthony, Jr. suffered a severe hypoxic-
ischemic brain injury, which the Johnsons allege ultimately caused his death
in 2017. Shortly thereafter, the Johnsons, acting as co-administrators of their
deceased son’s estate, filed a medical negligence claim against the real parties
in interest in Jefferson Circuit Court.
Less than a month after they filed the case against Norton, the
defendants presented the Johnsons with interrogatories and requests for
production of documents in July 2017. Interrogatory number 32 asked the
Johnsons to identify all of the social media accounts in their possession dating
from September 20, 2012 (Anthony, Jr.’s birthdate) to the present. Request for
production number 14 asked the Johnsons to:
Produce all data downloaded from your Facebook account, including
but not limited to, all postings, profile information, wall posts,
photos, videos, notes, information concerning events to which you
have RSVP’d, messages sent and received by you and others, and
comments made by you and others relating to wall posts, photos,
videos, or any other content.
2
By rule, discovery responses were due within thirty days. CR1 33.01(2),
34.02(2). Approximately a year later, Norton’s counsel followed up to request
when discovery might be answered. Finally, in February 2020, the Johnsons
confirmed that each parent operated a personal Facebook account; but
objected that the request was overbroad, unduly burdensome, harassing,
beyond the scope of proper discovery, and not reasonably calculated to lead to
the discovery of admissible evidence. Norton filed a motion in May 2020 to
compel the Johnsons to produce all downloadable Facebook data. The trial
court entered an order compelling the Johnsons to turn over the requested
Facebook data. After receiving an extension to review the data, the Johnsons
filed a motion to reconsider, or alter, amend, or vacate, the order for
production. The trial court denied their motion, after which the Johnsons filed
an original action in the Court of Appeals seeking writs of prohibition and
mandamus. The Court of Appeals denied the petition, which the Johnsons
have now appealed.
II. Standard of Review.
Writs are extraordinary remedies, which interfere with “both the orderly,
even if erroneous, proceedings of a trial court and the efficient dispatch of our
appellate duties[.]” Hoskins v. Maricle, 150 S.W.3d 1, 5 (Ky. 2004). “The
decision to issue a writ is entirely within this Court’s discretion” and applied
with “great caution.” Thompson v. Coleman, 544 S.W.3d 635, 637 (Ky. 2018).
1 Kentucky Rules of Civil Procedure.
3
Although we have recognized two circumstances in which writs are an
appropriate form of relief, the Johnsons concede only the second type of writ is
at issue in this case. Consequently, the Johnsons must show that “the lower
court is about to act incorrectly, although within its jurisdiction, and there
exists no adequate remedy by appeal or otherwise and great injustice and
irreparable injury would result.” Hoskins, 150 S.W.3d at 6 (citation omitted).
On appeal, this Court reviews the Court of Appeals’ legal reasoning de novo,
while assessing its factual findings for clear error. Grange Mut. Ins. Co. v.
Trude, 151 S.W.3d 803, 810 (Ky. 2004).
III. Analysis.
Writs of the second class generally require petitioners to satisfy two
elements: (1) that “no adequate remedy by appeal or otherwise” exists; and (2)
that the petitioner “would suffer great and irreparable injury (if error has been
committed and relief denied).” Id. at 808. While we always require petitioners
to satisfy the first element, this Court has recognized some exceptions in
“certain special cases” in which petitioners are not required to show “specific
great and irreparable injury[,]” but instead that the nature of the error is one in
which “a substantial miscarriage of justice will result if the lower court is
proceeding erroneously, and correction of the error is necessary and
appropriate in the interest of orderly judicial administration.” Wal-Mart Stores,
Inc. v. Dickinson, 29 S.W.3d 796, 801 (Ky. 2000) (quoting Bender v. Eaton, 343
S.W.2d 799, 801 (Ky. 1961)). With regards to orders allowing discovery, we
have recognized that an adequate remedy will rarely exist “on appeal if the
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alleged error is an order that allows discovery.” Grange, 151 S.W.3d at 810.
Regardless, we have reserved invoking these exceptions for instances involving
the invasion of a recognized privilege “or some other important privacy interest
of the party resisting discovery.” Inverultra, S.A. v. Wilson, 449 S.W.3d 339,
345 (Ky. 2014); see also Richmond Health Facilities-Madison, LP v. Clouse, 473
S.W.3d 79, 82–83 (Ky. 2015) ([O]ur application of this exception is rare,
however, limited primarily to circumstances where the action for which the writ
is sought would violate the law, e.g.[,] by breaching a tightly guarded privilege
or by contradicting the requirements of a civil rule.” (internal quotation
omitted)).
We addressed a nearly identical factual circumstance in Thompson v.
Coleman, 544 S.W.3d 635 (Ky. 2018). In that case, a decedent’s estate sued a
physician and others for medical negligence. 544 S.W.3d at 637. During
discovery, the defendants sought broad access to the decedent’s social media
accounts dating to one year prior to her death. Id. at 639. The estate objected,
arguing that most of the information on her social media would be irrelevant.
Id. In denying a writ petition challenging the trial court order granting the
defendants’ discovery request, this Court reasoned that CR 26.022 is to be
2 CR 26.02(1) reads:
Parties may obtain discovery regarding any matter, not privileged, which
is relevant to the subject matter involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery or to the claim
or defense of any other party, including the existence, description, nature,
custody, condition and location of any books, documents, or other tangible
things and the identity and location of persons having knowledge of any
discoverable matter. It is not ground for objection that the information
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“read liberally” in order to ensure that both parties “have access to evidence or
information leading to evidence, allowing a full case to be brought to trial.” Id.
Additionally, the Court noted that the trial court took several steps to
safeguard the social media data, such as limiting the period sought, providing
a protective order, requiring all information be treated as “strictly confidential,”
and listing several restrictions on how the information could be used. Id.
While social media is obviously a relatively new phenomenon, its inputs
are reducible to documents. In essence, Norton has requested production of
documents as contained in the Johnsons’ social media accounts. The civil
rules and our case law provide guidance as to the discovery of such
documents. As previously stated, CR 26.02(1), being read liberally, tilts in
favor of production. The party seeking to prevent discovery bears the burden of
showing not only the nonrelevance of the material, Morrow v. Brown, Todd &
Heyburn, 957 S.W.2d 722, 727 (Ky. 1997), but also that it is privileged.
Thompson, 544 S.W.3d at 638; Collins v. Braden, 384 S.W.3d 154, 163 (Ky.
2012). As in Thompson, the Johnsons in this case can point to no specific
privilege which the discovery order would violate, nor is the mere inclusion of
irrelevant, and possibly embarrassing, information on its own enough to merit
“special circumstances.”3
sought will be inadmissible at the trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
3 This court has held that “[a] protective order is within the full discretion and
authority of the trial court and is appropriate only to prevent a party from ‘annoyance,
embarrassment, oppression, or undue expense or burden.’” 473 S.W.3d at 83
(quoting Ewing v. May, 705 S.W.2d 910, 913 (Ky.1986)). In this case, the apparent
ease with which the Facebook record was produced indicates no burden or expense
6
In Collins, we outlined three means by which a party could resist
discovery of privileged material:
Parties asserting privileges have numerous ways to establish the
existence of . . . privilege when an opposing party challenges its
existence.
One common method is an in camera review by the trial
court of the documents in question. This was the method
employed in [Lexington Publ. Lib v.] Clark, 90 S.W.3d [53,] 63 [(Ky.
2002)]. But this method can have its limitations. For example, it
requires the trial court to “describe the documents” or “recite any
factual bases” supporting its decision to facilitate appellate court
review. Id. More importantly, in camera review can overly burden
a trial court, especially in litigation where many documents are
claimed to be privileged. Thus, instead of in camera review, a party
claiming the privilege could produce a detailed privilege log with
descriptions of the documents sufficient to establish the existence
of the privilege (i.e., more than their titles). Or a party could make
an “offer of proof” or proffer, like the process in KRE[4] 105(b),
describing the documents (without going into the content of any
statements or legal advice they contain, of course).
How a party proceeds is up to it, unless the trial judge
prefers one approach over the others or declines to allow the use of
one in a given case. That call falls within the trial court's sound
discretion. The only requirement is that when challenged, the
party claiming the privilege must do more than merely assert the
privilege. It must provide the court with sufficient information to
show the existence of the elements of the privilege and to allow
review of that decision by higher courts.
384 S.W.3d at 164–65. If a party claims that social media matter is
nonrelevant, no reason exists as to why one of the processes summarized
in Collins could not be utilized.
was involved. As to annoyance or oppression, those items involve continuous,
repetitive discovery tactics. See Britton v. Garland, 335 S.W.2d 329 (Ky. 1960) (holding
that trial court could protect litigants from such number and nature of depositions as
to seriously interfere with litigant’s proof and usurp time to present case). This case
involves one request for social media data. As to embarrassment, clearly the Johnson
might not want certain matters disclosed, but the trial court addressed that concern
in requiring non-dissemination.
4 Kentucky Rules of Evidence.
7
CR 26.02(1) clearly permits discovery of “any matter, not privileged,
which is relevant to the subject matter involved” and that parties cannot object
simply because the information may not be admissible at trial so long as “the
information sought appears reasonably calculated to lead to the discovery of
admissible evidence.” “Relevancy is more loosely construed upon pre-trial
examination than at the trial, and the Rule requires only relevancy to the
subject matter involved in the action.” Richmond Health Facilities, 473 S.W.3d
at 83 (quotation and citation omitted). Given that the Johnsons have put their
mental and emotional state directly at issue in this litigation, Norton’s
discovery request for their social media accounts is reasonable.5 Moreover, the
Johnsons’ objection that the period Norton seeks access to is overly broad is a
direct result of their own failure to move the litigation along in a timely fashion.
Originally, Norton only sought the Facebook data from September 20, 2012
(the deceased child’s birthdate) to the present (which at the time of the original
complaint was 2017). Consequently, the Johnsons’ own tardiness in
responding to the interrogatories and requests for production is responsible for
the extended time period of data sought by Norton.6 Finally, we note that the
5 The Johnsons’ pleadings explicitly recognize that information concerning their
relationship with their son and emotional well-being is fair game, as is the identity of
others with knowledge that may substantiate or negate plaintiffs’ claims. Plaintiffs’
Motion to Reconsider or Alter, October 30, 2020, p. 4.
6The following timeline shows that the Johnsons’ counsel repeatedly failed to
produce the documents, or object to them, for nearly three years.
July 5, 2017: Norton serves the interrogatories and request for production.
October 23, 2018: Norton requests the discovery answers and the Johnsons’
counsel promises to “put the wheels in motion.”
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trial court ordered all Facebook data to be treated as “strictly confidential”
thereby minimizing the potential to misuse or abuse any irrelevant information
turned over by the Johnsons. We are constrained therefore, as we were in
Thompson, to conclude that the Johnsons have failed to show irreparable harm
and have not demonstrated that any error which may have occurred at the trial
level requires the invocation of our “special circumstances” exception to writs of
the second class.
IV. Conclusion.
We find the Johnsons’ series of general objections to be without merit
and affirm the Court of Appeals’ denial of the writ.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Paul A. Casi, II
Jeffrey Wayne Adamson
Paul A. Casi, II, P.S.C.
April 12, 2019: The Johnsons’ counsel emails defense counsel and promises the
answers “shortly.”
July 23, 2019: Defense counsel reminds plaintiffs’ counsel the responses are
two years late and plaintiffs’ counsel promises to have them “next week.”
September 9, 2019: Plaintiffs’ counsel promises to have the responses
“finish[ed] this week.”
February 21, 2020: Plaintiffs’ counsel finally provides defense counsel with the
answers.
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APPELLEE:
Hon. Audra Eckerle
COUNSEL FOR REAL PARTIES IN INTEREST
KENTUCKIANA PERINATOLOGY, P.S.C. AND
MARCELLO PIETRANTONI, M.D.:
Christopher T. Coburn
Scott Philip Whonsetler
Whonsetler Law, PLLC
COUNSEL FOR REAL PARITES OF INTEREST
NORTON HEALTHCARE, INC. AND NORTON HOSPITALS
INC. D/B/A NORTON HOSPITAL:
Beth Hendrickson McMasters
Virginia Leigh Schell
Stoll Keenon Ogden, PLLC
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