Lexington Public Library v. Clark, 2001-SC-0531-MR.

• Decision Date: 21 November 2002
• Docket Number: No. 2001-SC-0531-MR.,2001-SC-0531-MR.
• Citation: 90 S.W.3d 53
• Parties: LEXINGTON PUBLIC LIBRARY, Appellant, v. Thomas L. CLARK, Judge, Fayette Circuit Court, Appellee, and Diana Koonce (Real Party in Interest), Appellee.
• Court: Supreme Court of Kentucky

90 S.W.3d 53

LEXINGTON PUBLIC LIBRARY, Appellant, v.Thomas L. CLARK, Judge, Fayette Circuit Court, Appellee, and Diana Koonce (Real Party in Interest), Appellee.

No. 2001-SC-0531-MR.

Supreme Court of Kentucky.

November 21, 2002.

COPYRIGHT MATERIAL OMITTED

Richard G. Griffith, Jeffrey J. Chapuran, Stites & Harbison, Lexington, Counsel for Appellant.

Thomas L. Clark, Lexington, pro se, Counsel for Appellee Thomas L. Clark, Judge, `Payette Circuit Court.

Robert L. Abell, Lexington, Counsel for Real Party in Interest Appellee Diana Koonce.

Opinion of the Court by Justice COOPER.

The issues raised by this appeal from a denial of a petition for a writ of prohibition concern (1) the application of the lawyer-client privilege to communications made by employees of a client that is a "corporation, association, or other organization or entity,"KRE 503(a)(1); and (2) the extent of proof required either to successfully challenge a trial court's KRE 104(a) ruling by way of a petition for a writ of mandamus or prohibition, or to support a de novo determination that the communications fall within the lawyer-client privilege.

The underlying action was brought by Diana Koonce against her former employer, Lexington Public Library, alleging unlawful retaliation and constructive discharge.Koonce claims the library unlawfully retaliated against her because she filed a complaint against her supervisor, Bob Patrick, and that, in December 1999, she was constructively discharged by Patrick and another library manager.During the course of discovery, Koonce learned that Patrick had terminated his employment as marketing director of the library in September 2000.Pursuant to CR 30.02(6), Koonce noticed the library to produce an agent or officer to testify as to "all of the facts, circumstances and events leading up to, contributing to and relevant to the termination of Bob Patrick's employment with defendant."Koonce further requested that the agent or officer produce "all documents referred to or relied upon by the deponent for his other testimony on the above-stated points" and "all documents relating to the termination of Bob Patrick's employment with defendant, including any reports, complaints and other documents."

As to the latter request, the library sought a protective order against discovery of fourteen documents that it claimed were privileged under KRE 503(b).CR 26.03.Following an in camera review of those documents, Fayette Circuit Court Judge Thomas L. Clark entered an order finding that one of the documents was privileged but that the remaining thirteen had been generated for business purposes, not legal purposes.He issued a protective order with respect to the privileged document and held that the remaining thirteen were subject to discovery by Koonce.He further ordered that all of the documents be filed and sealed in the circuit court record.The library then petitioned the Court of Appeals for a writ of prohibition with respect to the documents that had been determined not privileged.The petition was denied and the library now appeals to this Court as a matter of right.Ky. Const. § 115.Only twelve of the original fourteen documents remain at issue.No writ was sought, of course, with respect to the document Judge Clark held was privileged, and the library now concedes that another of the original fourteen documents is not privileged.

A petition for an extraordinary writ is a separate civil action brought pursuant to CR 81, not an interlocutory appeal from the underlying action brought pursuant to CR 73.01(2).Thus, the record in the underlying action is not forwarded by the local circuit court clerk to the court in which the petition is filed and the only evidence available for consideration is that filed by the parties either in support of or in opposition to the petition.None of the documents reviewed by Judge Clark have been filed in this record.Nor does Judge Clark's order describe the documents or recite any factual bases for his conclusion that thirteen of the documents were generated for business, not legal, purposes.The only source of information available to us with respect to the contents of the documents is the affidavit of Susan Brothers, the library's assistant director for training and human resources, which describes the nature of the documents in question but not their contents.The affidavit also gratuitously states that the documents were generated for legal, not business, purposes, in direct contradiction of Judge Clark'sKRE 104(a) findings.Judge Clark's order was entered on February 9, 2001.Brothers' affidavit was executed thereafter on March 13, 2001.Thus, we have no way of knowing whether the only evidence available to us was also available to Judge Clark during his examination of the documents at issue.

According to the affidavit, Brothers contacted one of the library's attorneys in July 2000 about her "increasing concerns surrounding Patrick's behavior and performance."The affidavit also states that the library was "particularly concerned about its possible legal exposure should it take any action adverse to Patrick because he was over the age of forty (40) and was experiencing health problems," and that the attorney "suggested that Geneva Pullen[not further identified (hereinafter "nfi")] and I solicit comments and concerns about Patrick from Patrick's coworkers so that we could evaluate Patrick's performance."The affidavit then describes the general nature of each document as follows:

(1) E-mail from Becky Croft(nfi) to Susan Brothers and Geneva Pullen, dated July 21, 2000, regarding Patrick's performance.

(2) Memorandum from Peggy McAllister(nfi) to Geneva Pullen, dated July 21, 2000, concerning Patrick's performance.

(3) Memorandum from Joyce Probus, Technical Marketing Assistant, to Geneva Pullen, dated July 21, 2000, concerning management issues surrounding Patrick.

(4) Handwritten chronology of events on July 20, 2000, prepared by Geneva Pullen.

(5) Memorandum from Doug Tattershall(nfi) to Geneva Pullen, dated July 24, 2000, concerning Patrick's performance.

(6) Memorandum from Penny Reeves, Foundation Executive Director, to Susan Brothers, dated July 22, 2000, regarding Patrick's performance.

(7) Handwritten notes of Geneva Pullen concerning Patrick's development of a marketing plan.

The affidavit states that each of these first seven documents were forwarded to the library's attorney "so that he could advise us how to handle Patrick's employment status with the Library."

(8) Memorandum from Geneva Pullen and Susan Brothers to Patrick, dated July 28, 2000, concerning performance and behavior issues."This memorandum was drafted with the help of the Library's attorney after he reviewed the written documentation from Patrick's co-workers."

(9) Handwritten notes of Brothers, dated August 29, 2000, documenting a telephone conversation with Patrick concerning a timetable for Patrick's response to the July 28, 2000 memorandum.[The library now concedes that this document is not privileged.]

(10) Memorandum from Bob Patrick, Marketing Manager, to Geneva Pullen and Susan Brothers, dated August 31, 2000, responding to issues surrounding his behavior and performance."This memorandum was immediately forwarded to the Library's attorney in order to seek his advice about how handle [sic] Patrick's employment status."

(11) Internal investigation interview notes of Susan Brothers including notes of phone conversation with the library's counsel."These notes document my discussions and interviews with Patrick's co-workers.I interviewed the co-workers at the request of the Library's attorney and forwarded these notes to our attorney so that he could advise us how to handle Patrick's employment status with the Library."

(12) Handwritten notes of Susan Brothers documenting a telephone conversation with the Library's attorney."The notes reflect legal advice provided by our attorney concerning how to handle our investigation and identify specific legal concerns surrounding Patrick."

(13) E-mail to Ron Steensland(nfi) and Geneva Pullen from Susan Brothers concerning Patrick's performance, including discussion of recommendation of Library's counsel.[This is the only document that Judge Clark found to be privileged.]

(14) Handwritten notes of Susan Brothers documenting a telephone conversation with the library's attorney and a meeting with Bob Patrick on August 30, 2000."The notes reflect specific advice provided by the library's attorney concerning what to say to Patrick during the meeting."

Without revealing the actual contents of any of the documents, Judge Clark found that only document number thirteen was privileged.His order of February 9, 2001, states, inter alia:

The Court finds the documents may lead to relevant information and are appropriate for discovery and are not subject to the attorney-client privilege.It appears from the record the documents in question were prepared either in the normal course of business or a part of an internal investigation by the Defendant.Though counsel may have been consulted regarding the manner in which to conduct the investigation the documents in question do not purport to give legal advice or reveal any confidential communication between the client and counsel, except for the document excluded herein.

I. LAWYER-CLIENT PRIVILEGE.

KRE 503 provides in pertinent part as follows:

(a) Definitions.As used in this rule:

(1)"Client" means a person, including a public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

(2)"Representative of the client" means:

(A) A person having authority to obtain professional legal services or to act on advice thereby rendered on behalf of the client; or

(B)Any employee or...