RENDERED: MAY 9, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1202-MR
ERIKA SHIELDS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SARAH E. CLAY, JUDGE ACTION NO. 21-CI-004780
THE ESTATE OF TREVON L. MITCHELL, BY AND THROUGH PERSONAL REPRESENTATIVE, DANITA MITCHELL; AIDAN COLMORE; BENJAMIN SULLIVAN; BRENT BERNIER; JOSEPH NETT; LARRY WILLIAMS; THE ESTATE OF JOHN CEDRIC ROBINSON, JR., BY AND THROUGH ADMINISTRATRIX LENA NEELY; AND WALTER JACKSON APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND EASTON, JUDGES.
THOMPSON, CHIEF JUDGE: Erika Shields appeals from two orders, one which
denied her motion for a protective order to preclude her deposition, and one which ordered her counsel to provide possible deposition dates. Appellant argues that she
should not have to sit for a deposition in the underlying case as she is not a party to
the case, and she has no pertinent information to provide. We find no error and
affirm.
FACTS AND PROCEDURAL HISTORY
Appellant is the former Chief of the Louisville Metro Police
Department (“LMPD”) and is not a party to the underlying action. The underlying
action revolves around a police vehicle’s pursuit of a fleeing motorist. The
motorist eventually sped into an intersection and caused an accident resulting in
several injuries. The accident occurred on July 6, 2021. In August of 2021, the
people injured in the accident filed suit against the LMPD and the officers involved
in the pursuit. The Plaintiffs alleged that the pursuit went against police
department policies and procedures; therefore, the officers involved acted
negligently and played a role in causing the accident. On April 6, 2022, Appellant
directed the Professional Standards Unit (“PSU”) to conduct an investigation into
the events surrounding the pursuit and accident, as well as investigate the officers
involved. Appellant resigned from the LMPD on January 2, 2023. The PSU
issued its findings on the investigation on February 8, 2023.
The Plaintiffs in the case were able to depose the current Chief of the
LMPD, who was the person tasked with disciplining the officers involved in the
-2- pursuit, but Plaintiffs also wanted to depose Appellant. The Plaintiffs’ theory was
that since Appellant was the Chief of Police at the time of the accident and was the
person who initiated the investigation into the circumstances surrounding the
pursuit and accident, she may have relevant information.
Plaintiffs attempted to depose Appellant but were unable to get her
cooperation. On September 6, 2023, Appellant moved for an order of protection in
order to not have to take part in a deposition in the case. Appellant, via affidavit,
claimed that she had no relevant knowledge surrounding the events of accident.
She also stated that the only role she played in the PSU investigation was initiating
it. A short hearing was held, and the court ruled from the bench that the motion for
protective order was denied. A written order soon followed. Around a month
later, the court ordered that Appellant provide Plaintiffs’ counsel with days she
would be available for a deposition. This appeal followed.1
ANALYSIS
Appellant’s first argument on appeal is that the trial court should have
granted her motion because at the time of the accident, she was a high-ranking
government official, and she should not be subject to deposition. Appellant cites to
federal case law which describes a doctrine known as the “apex doctrine.” This
1 “A trial court order denying a nonparty’s motion to quash a discovery request is a final and immediately appealable judgment.” Allstate Property & Casualty Insurance Company v. Kleinfeld, 568 S.W.3d 327, 333 (Ky. 2019) (footnote and citation omitted)
-3- doctrine states that high-ranking government officials and high-ranking corporate
executives should not be subjected to the taking of depositions absent
extraordinary circumstances. See United States v. Sensient Colors, Inc., 649 F.
Supp. 2d 309, 316 (D.N.J. 2009); Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th
Cir. 2012).
Kentucky has not adopted the “apex doctrine.” “[F]ederal case law
construing federal rules (even those similar to our state court rules) does not
control how we construe our state court rules.” Jaroszewski v. Flege, 297 S.W.3d
24, 40 n.31 (Ky. 2009). Seeing as we are not bound by federal case law, we
decline to adopt the “apex doctrine” and will rely solely on our state rules of
discovery.
Appellant’s other argument on appeal is that she has no personal
knowledge of any facts surrounding the accident or investigation, and that any
potential information she might have could be gained from other sources, like the
current Chief of the LMPD or the officers involved in the pursuit. She also claims
that she now lives in Atlanta, Georgia, and has a full-time job; therefore,
submitting to a deposition would be an inconvenience.
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
-4- 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 sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Kentucky Rules of Civil Procedure (“CR”) 26.02(1).
CR 26.03 states that a trial court may, upon motion and good cause shown, enter an order not allowing or placing limits on a requested deposition or other discovery request which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . . . 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. We review this issue for abuse of discretion.
Key v. CitiMortgage, Inc., 686 S.W.3d 630, 635 (Ky. App. 2023), review denied
(Mar. 8, 2024) (internal quotation marks and citations omitted). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
We agree with the trial court that Appellant has not provided good
cause for why she should not be deposed. She was the Chief of the LMPD when
the accident occurred and when the underlying lawsuit was filed. She was also the
-5- person who initiated the PSU investigation. It is reasonable to believe she may
have relevant information.
In addition, “a mere showing that discovery may involve some
repetition, inconvenience, and expense is insufficient to establish good cause to
limit the discovery sought.” Martin v. Dollar General Partners, 706 S.W.3d 771,
776 (Ky. App.
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RENDERED: MAY 9, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1202-MR
ERIKA SHIELDS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE SARAH E. CLAY, JUDGE ACTION NO. 21-CI-004780
THE ESTATE OF TREVON L. MITCHELL, BY AND THROUGH PERSONAL REPRESENTATIVE, DANITA MITCHELL; AIDAN COLMORE; BENJAMIN SULLIVAN; BRENT BERNIER; JOSEPH NETT; LARRY WILLIAMS; THE ESTATE OF JOHN CEDRIC ROBINSON, JR., BY AND THROUGH ADMINISTRATRIX LENA NEELY; AND WALTER JACKSON APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND EASTON, JUDGES.
THOMPSON, CHIEF JUDGE: Erika Shields appeals from two orders, one which
denied her motion for a protective order to preclude her deposition, and one which ordered her counsel to provide possible deposition dates. Appellant argues that she
should not have to sit for a deposition in the underlying case as she is not a party to
the case, and she has no pertinent information to provide. We find no error and
affirm.
FACTS AND PROCEDURAL HISTORY
Appellant is the former Chief of the Louisville Metro Police
Department (“LMPD”) and is not a party to the underlying action. The underlying
action revolves around a police vehicle’s pursuit of a fleeing motorist. The
motorist eventually sped into an intersection and caused an accident resulting in
several injuries. The accident occurred on July 6, 2021. In August of 2021, the
people injured in the accident filed suit against the LMPD and the officers involved
in the pursuit. The Plaintiffs alleged that the pursuit went against police
department policies and procedures; therefore, the officers involved acted
negligently and played a role in causing the accident. On April 6, 2022, Appellant
directed the Professional Standards Unit (“PSU”) to conduct an investigation into
the events surrounding the pursuit and accident, as well as investigate the officers
involved. Appellant resigned from the LMPD on January 2, 2023. The PSU
issued its findings on the investigation on February 8, 2023.
The Plaintiffs in the case were able to depose the current Chief of the
LMPD, who was the person tasked with disciplining the officers involved in the
-2- pursuit, but Plaintiffs also wanted to depose Appellant. The Plaintiffs’ theory was
that since Appellant was the Chief of Police at the time of the accident and was the
person who initiated the investigation into the circumstances surrounding the
pursuit and accident, she may have relevant information.
Plaintiffs attempted to depose Appellant but were unable to get her
cooperation. On September 6, 2023, Appellant moved for an order of protection in
order to not have to take part in a deposition in the case. Appellant, via affidavit,
claimed that she had no relevant knowledge surrounding the events of accident.
She also stated that the only role she played in the PSU investigation was initiating
it. A short hearing was held, and the court ruled from the bench that the motion for
protective order was denied. A written order soon followed. Around a month
later, the court ordered that Appellant provide Plaintiffs’ counsel with days she
would be available for a deposition. This appeal followed.1
ANALYSIS
Appellant’s first argument on appeal is that the trial court should have
granted her motion because at the time of the accident, she was a high-ranking
government official, and she should not be subject to deposition. Appellant cites to
federal case law which describes a doctrine known as the “apex doctrine.” This
1 “A trial court order denying a nonparty’s motion to quash a discovery request is a final and immediately appealable judgment.” Allstate Property & Casualty Insurance Company v. Kleinfeld, 568 S.W.3d 327, 333 (Ky. 2019) (footnote and citation omitted)
-3- doctrine states that high-ranking government officials and high-ranking corporate
executives should not be subjected to the taking of depositions absent
extraordinary circumstances. See United States v. Sensient Colors, Inc., 649 F.
Supp. 2d 309, 316 (D.N.J. 2009); Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th
Cir. 2012).
Kentucky has not adopted the “apex doctrine.” “[F]ederal case law
construing federal rules (even those similar to our state court rules) does not
control how we construe our state court rules.” Jaroszewski v. Flege, 297 S.W.3d
24, 40 n.31 (Ky. 2009). Seeing as we are not bound by federal case law, we
decline to adopt the “apex doctrine” and will rely solely on our state rules of
discovery.
Appellant’s other argument on appeal is that she has no personal
knowledge of any facts surrounding the accident or investigation, and that any
potential information she might have could be gained from other sources, like the
current Chief of the LMPD or the officers involved in the pursuit. She also claims
that she now lives in Atlanta, Georgia, and has a full-time job; therefore,
submitting to a deposition would be an inconvenience.
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
-4- 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 sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Kentucky Rules of Civil Procedure (“CR”) 26.02(1).
CR 26.03 states that a trial court may, upon motion and good cause shown, enter an order not allowing or placing limits on a requested deposition or other discovery request which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. . . . 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. We review this issue for abuse of discretion.
Key v. CitiMortgage, Inc., 686 S.W.3d 630, 635 (Ky. App. 2023), review denied
(Mar. 8, 2024) (internal quotation marks and citations omitted). “The test for
abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
We agree with the trial court that Appellant has not provided good
cause for why she should not be deposed. She was the Chief of the LMPD when
the accident occurred and when the underlying lawsuit was filed. She was also the
-5- person who initiated the PSU investigation. It is reasonable to believe she may
have relevant information.
In addition, “a mere showing that discovery may involve some
repetition, inconvenience, and expense is insufficient to establish good cause to
limit the discovery sought.” Martin v. Dollar General Partners, 706 S.W.3d 771,
776 (Ky. App. 2024), review denied (Dec. 12, 2024). Also, “a protective order
against discovery is appropriate only upon proof that it is being conducted in bad
faith or in such manner to annoy, embarrass, or oppress the person subject to the
inquiry.” Volvo Car Corp. v. Hopkins, 860 S.W.2d 777, 779 (Ky. 1993) (internal
quotation marks omitted). Here, there is no allegation the deposition request is
being made in bad faith or being done to harass Appellant. Further, while
Appellant may suffer some inconvenience, all people who participate in a
deposition are inconvenienced in some way. We do not believe missing work or
generally being forced to spend time being deposed is an undue burden.2
CONCLUSION
Based on the foregoing, we affirm the orders of the trial court. The
court did not abuse its discretion in ordering Appellant to participate in a
deposition.
2 In one of the hearings in the record, an attorney for one of the plaintiffs stated that they were willing to go to Atlanta to depose Appellant in person. This would greatly decrease any expense or inconvenience on behalf of Appellant.
-6- EASTON, JUDGE, CONCURS.
ACREE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
ACREE, JUDGE, CONCURRING: I concur in the Opinion but write separately to
raise the question of mootness given the continuation of the case beyond trial while
this Court reviewed Appellant’s appeal.
Appellant filed her notice of appeal on October 12, 2023. One month
later, on November 14, 2023, a ten-day trial commenced in the underlying case.
Opinion and Order Granting New Trial, In Part, at 2, Estate of Trevon Mitchell v.
Benjamin Sullivan, No. 21-CI-004780 (Jefferson Cir. Ct. Jul. 29, 2024). On
December 1, 2023, a jury returned a verdict awarding damages to all but one
plaintiff in the amount of $30,740,748.41, apportioned 97% to the defendant whose
collision with the plaintiffs below led to their injuries and 3% to the police officer
who pursued him. Order of Judgment at 10-11, Estate of Mitchell, No. 21-CI-
004780 (Jefferson Cir. Ct. Mar. 5, 2024).
On July 29, 2024, the trial court granted plaintiffs’ motion for a new
trial, acknowledging some of its evidentiary rulings had the potential for
prejudicing the jury against the defendant driver who collided with the plaintiffs’
vehicles. However, the trial court limited the issue to be addressed in the new trial:
[T]he Court finds it appropriate to limit the new trial to a partial new trial solely on the issue of apportionment. As apportionment is concerned only with the nature of the conduct and the extent of the causal relationship between
-7- that conduct and the damages, the scope of relevant evidence will be much more limited in the partial new trial. The Court invites the parties to assist the Court in narrowing the scope of admissible evidence in this partial new trial by drafting well-reasoned motions in limine.
Opinion and Order Granting New Trial, In Part, supra, at 5.
Although this Court’s Opinion will bind the trial court to the law of
the case, the facts of this case relative to the need to depose Appellant Erika
Shields almost certainly have changed. Hutson v. Commonwealth, 215 S.W.3d
708, 715 (Ky. App. 2006) (“law of the case doctrine . . . [does not] make the facts
of the case immutable”). Although the trial court must follow the legal path this
Opinion charted, it is not prohibited from revisiting and even ruling differently
based on those changed facts.
At the very least, the trial court would be wise to include Appellant’s
counsel in its invitation “to assist the Court in narrowing the scope of admissible
evidence[.]”
Notwithstanding these considerations, I fully concur in the Opinion.
-8- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES ESTATE OF TREVON L. MITCHELL, BY Michael J. O’Connell AND THROUGH PERSONAL Jefferson County Attorney REPRESENTATIVE, DANITA MITCHELL; WALTER JACKSON; Kristie B. Walker AND BRENT BERNIER: Assistant Jefferson County Attorney Louisville, Kentucky Kevin C. Burke Jamie K. Neal James M. Bolus, Jr. Ben Pittenger Louisville, Kentucky
-9-