IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. CORRECTED: MARCH 14, 2019 RENDERED: MARCH 14, 2019 NOT TO BE PUBLISHED
2018-SC-000435-MR
CHRISTINE L. COOK, M. D. AND ELLANTS DR LYNN P. PARKER, M. D.
ON APPEAL FROM COURT OF APPEALS V. NO. 2018-CA-000162-OA JEFFERSON CIRCUIT COURT NO. 15-CI-001410
HON AUDRA J. ECKERLE, JUDGE, APPELLEE JEFFERSON CIRCUIT COURT
AND
C. WILLIAM HELM, C. WILLIAM HELM, REAL PARTIES IN MB. BCHIR, AND UNIVERSITY OF LOUISVILLE INTEREST/APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellants, Christine L. Cook, M.D. and Lynn Parker, M.D., appeal from
the Court of Appeals’ order denying his petition for a writ of prohibition or
mandamus. For the following reasons, we affirm the Court of Appeals’ order.
I. BACKGROUND
Real Party in Interest, C. William Helm, M.D., has brought seven
separate actions arising out of the facts surrounding his employment with the
University of Louisville. Two of these claims have particular importance in the current appeal. In the underlying action, Helm filed suit against the University
seeking damages under a theory of whistleblower retaliation based on the
University’s non-renewal of his employment contract. Cook and Parker are not
parties to this action. However, the University identified them as the two
witnesses who would have the most information concerning Helm’s action.
Helm sought to depose Cook and Parker in the whistleblower action and the
two filed a motion to either quash the subpoena altogether or for the trial court
to enter a protective order limiting the scope of their depositions based on the
fact Helm had deposed the two extensively in an earlier defamation suit against
Cook and Parker (the second case having relevance herein).
The trial court entered an order denying Cook and Parker’s motion to
quash and motion for a protective order. Cook and Parker filed a writ to the
Court of Appeals, asking that Court to either issue a writ commanding the trial
court to either quash their depositions or to enter a protective order limiting
their scope. The Court of Appeals declined to issue the writ. Cook and Parker
appealed that decision to this Court, arguing the Court of Appeals abused its
discretion. For the reasons that follow, we affirm the Court of Appeals.
II. ANALYSIS
The issuance of a writ is an extraordinary remedy, and we have always
been cautious and conservative in granting such relief. Grange Mut. Ins. v.
Trude, 151 S.W.3d 803, 808 (Ky. 2004). The standard for granting petitions for
writs of prohibition and mandamus is the same. Mahoney v. McDonald-
Burkman, 320 S.W.3d 75, 77 n.2 (Ky. 2010) (citing Martin v. Admin. Office of
2 Courts, 107 S.W.3d 212, 214 (Ky. 2003)). This Court set that standard forth in
Hoskins v. Maricle:
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). Here, there is no argument that the lower court
lacked jurisdiction. Therefore, this case falls under the second class of writ,
which requires that there be (1) no adequate remedy by appeal and (2) great
injustice and irreparable injury.
As we have noted, “[i]n order for a writ to issue, the lack of an adequate
remedy by appeal or otherwise is an absolute prerequisite.” Ridgeway Nursing
& Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 640 (Ky. 2013). Therefore, we
turn to the threshold issue of whether Cook and Parker have an adequate
remedy by appeal. In this instance, Cook and Parker are non-party witnesses.
This Court recently addressed this very issue:
our research discloses a rule in Kentucky law not cited by either party in the present appeal or in the courts below. This Court’s predecessor in Marion Nat. Bank v. Abell’s Adm’x [11 S.W. 300, 301 (Ky. 1889)] established a rule that has not been abandoned since its creation: A trial court order denying a nonparty’s motion to quash a discovery request is a final and immediately appealable judgment. ... In fairness to the parties to this appeal, we employ Justice Cooper’s articulation of the reasons for our addressing the merits in this case: “Since the Court of Appeals exercised its discretion to address the petition on its merits, and [Allstate] does not even assert that [Dr. Kleinfeld] has an adequate remedy by appeal, we, too, will proceed directly to the merits of the appeal.”
3 [Metropolitan Property & Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31, 33 (Ky. 2003).]
Allstate Prop. & Cas. Ins. Co. v. Kleinfeld, No. 2018-SC-000417-MR, (Ky.
February 14, 2019). Here, just as in Kleinfeld, neither the parties nor the
Court of Appeals cited this rule. Therefore, the parties argued (and the Court
of Appeals decided the case based upon) whether “great injustice and
irreparable injury will result if the petition is not granted.” Hoskins, 150
S.W.3d at 10. We follow Kleinfeld’s lead and pick up our analysis with that
issue.
Cook and Parker fail to show that a great injustice and irreparable injury
will result if their writ petition is not granted. They insist the Court of Appeals
“failed to adequately address the issue of Drs. Cook and Parker’s irreparable
injury at all . . . [and] take into account [their] right not to be subjected to
duplicative, redundant, and harassing discovery.” However, the fact is that
Appellants fail to demonstrate any specific injury that rises to the level of
irreparability. Rather, they merely argue that the two had already given
extensive discovery in a case with the same factual basis and that requiring
them to provide additional discovery “would, at a minimum be: (i) cumulative;
(ii) duplicative; (iii) redundant; and (iv) unduly burdensome. Moreover, it would
also unnecessarily and unfairly reopen a back door to discovery for Dr. Helm to
use in the [separate defamation action] . . . .” While there may well be
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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. CORRECTED: MARCH 14, 2019 RENDERED: MARCH 14, 2019 NOT TO BE PUBLISHED
2018-SC-000435-MR
CHRISTINE L. COOK, M. D. AND ELLANTS DR LYNN P. PARKER, M. D.
ON APPEAL FROM COURT OF APPEALS V. NO. 2018-CA-000162-OA JEFFERSON CIRCUIT COURT NO. 15-CI-001410
HON AUDRA J. ECKERLE, JUDGE, APPELLEE JEFFERSON CIRCUIT COURT
AND
C. WILLIAM HELM, C. WILLIAM HELM, REAL PARTIES IN MB. BCHIR, AND UNIVERSITY OF LOUISVILLE INTEREST/APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellants, Christine L. Cook, M.D. and Lynn Parker, M.D., appeal from
the Court of Appeals’ order denying his petition for a writ of prohibition or
mandamus. For the following reasons, we affirm the Court of Appeals’ order.
I. BACKGROUND
Real Party in Interest, C. William Helm, M.D., has brought seven
separate actions arising out of the facts surrounding his employment with the
University of Louisville. Two of these claims have particular importance in the current appeal. In the underlying action, Helm filed suit against the University
seeking damages under a theory of whistleblower retaliation based on the
University’s non-renewal of his employment contract. Cook and Parker are not
parties to this action. However, the University identified them as the two
witnesses who would have the most information concerning Helm’s action.
Helm sought to depose Cook and Parker in the whistleblower action and the
two filed a motion to either quash the subpoena altogether or for the trial court
to enter a protective order limiting the scope of their depositions based on the
fact Helm had deposed the two extensively in an earlier defamation suit against
Cook and Parker (the second case having relevance herein).
The trial court entered an order denying Cook and Parker’s motion to
quash and motion for a protective order. Cook and Parker filed a writ to the
Court of Appeals, asking that Court to either issue a writ commanding the trial
court to either quash their depositions or to enter a protective order limiting
their scope. The Court of Appeals declined to issue the writ. Cook and Parker
appealed that decision to this Court, arguing the Court of Appeals abused its
discretion. For the reasons that follow, we affirm the Court of Appeals.
II. ANALYSIS
The issuance of a writ is an extraordinary remedy, and we have always
been cautious and conservative in granting such relief. Grange Mut. Ins. v.
Trude, 151 S.W.3d 803, 808 (Ky. 2004). The standard for granting petitions for
writs of prohibition and mandamus is the same. Mahoney v. McDonald-
Burkman, 320 S.W.3d 75, 77 n.2 (Ky. 2010) (citing Martin v. Admin. Office of
2 Courts, 107 S.W.3d 212, 214 (Ky. 2003)). This Court set that standard forth in
Hoskins v. Maricle:
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). Here, there is no argument that the lower court
lacked jurisdiction. Therefore, this case falls under the second class of writ,
which requires that there be (1) no adequate remedy by appeal and (2) great
injustice and irreparable injury.
As we have noted, “[i]n order for a writ to issue, the lack of an adequate
remedy by appeal or otherwise is an absolute prerequisite.” Ridgeway Nursing
& Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 640 (Ky. 2013). Therefore, we
turn to the threshold issue of whether Cook and Parker have an adequate
remedy by appeal. In this instance, Cook and Parker are non-party witnesses.
This Court recently addressed this very issue:
our research discloses a rule in Kentucky law not cited by either party in the present appeal or in the courts below. This Court’s predecessor in Marion Nat. Bank v. Abell’s Adm’x [11 S.W. 300, 301 (Ky. 1889)] established a rule that has not been abandoned since its creation: A trial court order denying a nonparty’s motion to quash a discovery request is a final and immediately appealable judgment. ... In fairness to the parties to this appeal, we employ Justice Cooper’s articulation of the reasons for our addressing the merits in this case: “Since the Court of Appeals exercised its discretion to address the petition on its merits, and [Allstate] does not even assert that [Dr. Kleinfeld] has an adequate remedy by appeal, we, too, will proceed directly to the merits of the appeal.”
3 [Metropolitan Property & Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31, 33 (Ky. 2003).]
Allstate Prop. & Cas. Ins. Co. v. Kleinfeld, No. 2018-SC-000417-MR, (Ky.
February 14, 2019). Here, just as in Kleinfeld, neither the parties nor the
Court of Appeals cited this rule. Therefore, the parties argued (and the Court
of Appeals decided the case based upon) whether “great injustice and
irreparable injury will result if the petition is not granted.” Hoskins, 150
S.W.3d at 10. We follow Kleinfeld’s lead and pick up our analysis with that
issue.
Cook and Parker fail to show that a great injustice and irreparable injury
will result if their writ petition is not granted. They insist the Court of Appeals
“failed to adequately address the issue of Drs. Cook and Parker’s irreparable
injury at all . . . [and] take into account [their] right not to be subjected to
duplicative, redundant, and harassing discovery.” However, the fact is that
Appellants fail to demonstrate any specific injury that rises to the level of
irreparability. Rather, they merely argue that the two had already given
extensive discovery in a case with the same factual basis and that requiring
them to provide additional discovery “would, at a minimum be: (i) cumulative;
(ii) duplicative; (iii) redundant; and (iv) unduly burdensome. Moreover, it would
also unnecessarily and unfairly reopen a back door to discovery for Dr. Helm to
use in the [separate defamation action] . . . .” While there may well be
circumstances in which a trial court’s failure to grant a protective order such
4 as that sought by Cook and Parker would result in great injustice and
irreparable injury, Appellants do not show such an injury herein.
Furthermore, Cook and Parker assert that our precedent concerning
great injustice and irreparable injury should not apply to non-parties. Our
cases makes it clear that “[i]nconvenience, expense, annoyance, and other
undesirable aspects of litigation” do not amount to great and irreparable injury.
Fritsch v. Caudill, 146 S.W.3d 926, 930 (Ky. 2004). We see no reason to deviate
from this standard under the present set of facts. Writs remain extraordinary
relief subject to the discretion of the appellate court regardless of whether the
individual seeking the writ is a party to the underlying litigation. Appellants
can show no more than that they will be inconvenienced or annoyed by being
required to give depositions in the underlying case. This does not amount to
great and irreparable injury, as this Court has long held.
Appellants also claim that Helm may attempt to use information he
obtains through discovery in the whistleblower case in his defamation case
against the two of them in the event that case may return to the trial court.
However, this speculative claim, even if it came to fruition, would not
necessitate the granting of a writ. As we have held, “evidence that is relevant
to the proceeding at hand, as is the case here, is discoverable despite the fact
that the evidence may be useful in other contexts.” Grange, 151 S.W.3d at
814.
Appellants next claim the Court of Appeals erred by failing to invoke the
“certain special cases” exception in order to grant their writ. “This Court has
5 consistently recognized an exception to the irreparable harm requirement in
‘certain special cases.” Ridgeway, 415 S.W.3d at 639-40. In such cases, this
Court will entertain the petition “provided 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.” Bender, 343 S.W.2d at 801. We review writs under the
“certain special cases” exception de novo. Grange, 151 S.W.3d at 810.
Here, the trial court refused to quash Cook and Parker’s subpoenas or to
limit the scope of their depositions. Helm deposed Appellants in an unrelated
matter four years prior to his initiation of the underlying whistleblower claim.
Helm asserts that he has gained access to numerous other documents in the
intervening time. The University insists Cook and Parker are the two fact
witnesses with the most information regarding the whistleblower claim.
Furthermore, Kentucky Rules of Civil Procedure (CR) 26.02(1) provides,
“[p]arties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action . . . .” This rule is
not without limitation, however. In fact, CR 26.03(1) provides “Upon motion by
a party or by the person from whom discovery is sought, and for good cause
shown, the court in which the action is pending . . . may make any order which
justice requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense . . . .” (Emphasis added.) This rule,
however, does not require the trial court to grant such a protective order.
Rather, the rule says that said court may do so. Here, the trial court used its
6 discretion to decline to issue such a protective order.1 It is not “necessary and
appropriate in the interest of orderly judicial administration,” Bender, 343
S.W.2d at 801, for us to upset this ruling by the granting of an extraordinary,
discretionary writ.
Finally, Cook and Parker ask this Court to exercise its plenary power
under Section 110 of the Kentucky Constitution and to use our discretion to
grant their writ. Appellants insist that the broad supervisory control of lower
courts Section 110 vests in the Supreme Court allows us to overturn the Court
of Appeals decision even if we hold (as we do) that court did not abuse its
discretion. We see no reason to deviate from our standards in this case and
will not address this argument further.
III. CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals’ denial of
Appellants’ petition for a writ.
Minton, C. J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ.,
sitting. All concur.
1 Appellants also make an argument under the “collateral order doctrine” insisting the trial court abused its discretion in refusing to quash or limit their depositions. It makes no difference how this argument is framed. We still apply our writ standard and come to the same conclusion.
7 COUNSEL FOR APPELLANTS: Brent Robert Baughman Bingham Greenebaum Doll LLP
Melissa Norman Bork Bingham Greenebaum Doll LLP
Benjamin Lewis Bingham Greenebaum Doll LLP
COUNSEL FOR APPELLEE:
Audra Jean Eckerle
COUNSEL FOR REAL PARTIES IN INTEREST:
Michael W. Oyler Reed, Weitkamp, Schell, 8s Vice PLLC
8 2018-SC-000435-MR
CHRISTINE L. COOK, M. D. AND APPELLANTS DR LYNN P. PARKER, M. D.
ON APPEAL FROM COURT OF APPEALS V. NO. 2018-CA-000162-OA JEFFERSON CIRCUIT COURT NO. 15-CI-001410
HON AUDRA J. ECKERLE, JUDGE, APPELLEE JEFFERSON CIRCUIT COURT
C. WILLIAM HELM, C. WILLIAM HELM, REAL PARTIES IN MB. BCHIR, AND UNIVERSITY OF LOUISVILLE INTEREST/APPELLEES
ORDER
This Court hereby corrects the Memorandum Opinion of the Court,
rendered March 14, 2019 in the above-styled case, to show a corrected vote
line. Substitution of a new Memorandum Opinion of the Court Affirming is
attached hereto. Said correction does not affect the holding and is made only
to reflect the correct Justices’ names in the vote line.
ENTERED: March lM , 2019.
chiejZjustice