Frankfort Regional Medical Center v. Hon Phillip J. Shepherd Judge, Franklin Circuit Court

• Court: Kentucky Supreme Court
• Decided: June 14, 2016
• Docket: 2015 SC 000438
• Status: Unknown

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 16, 2016 NOT TO BE PUBLISHED

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FRANKFORT REGIONAL MEDICAL CENTER APPELLANT

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2015-CA-000632-MR FRANKLIN CIRCUIT COURT NO. 12-CI-00052

HONORABLE PHILLIP J. SHEPHERD, JUDGE, FRANKLIN CIRCUIT COURT APPELLANT

AND

MARK WAINWRIGHT, M.D.; STEPHEN HALL, M.D.; AND WOMEN'S CARE OF THE BLUEGRASS, PLLC REAL PARTIES IN INTEREST

MEMORANDUM OPINION OF THE COURT

AFFIRMING

In this case, the appellant hospital's risk manager took notes recording

statements made by nurses and physicians during an investigation after a

difficult birth resulted in injury to the baby. There is evidence that the

interviews had both a business purpose and a litigation purpose, although

there is no proof that the nurses and physicians were aware of either purpose

when they made their statements. Some of the facts believed to be recorded in

the notes could not be recalled by the witnesses when they were later deposed

in the course of a malpractice action. At issue is whether those notes and the statements they contain are

protected from discovery under the attorney-client privilege or the work-

product doctrine. The trial court concluded that they were not. The Court of

Appeals, upon a petition for a writ of prohibition, agreed and denied the

requested writ. This Court affirms the Court of Appeals because neither the

attorney-client privilege nor the work-product doctrine are applicable to the

notes and statements under the evidence available at this point in the

litigation.

I. Background

The underlying case involves a medical malpractice claim related to the

delivery and birth of Braylee Roberts to Courtney Wilhoite at Franklin Regional

Medical Center on May 4, 2011. The delivery did not go well, and the child

suffered brain injury and was later diagnosed with cerebral palsy.

Dr. Mark Wainwright was the obstetrician on call that day, but he was

not present when the delivery first took a negative turn. His partner, Dr.

Stephen Hall, was near the delivery room doing paperwork at that time. The

problems with the delivery were arguably exacerbated by an issue with the fetal

heart-rate monitor and by alleged miscommunication between nursing staff

and Dr. Hall. As to the communication problem, nurses claimed that they

asked Dr. Hall to assess Wilhoite because of concerns with the fetal heart-rate

readings, but that he did not respond to those requests. It is not clear,

however, whether the severity of the situation was fully explained to Dr. Hall.

Regardless, after Dr. Hall failed to look in on Wilhoite, Dr. Wainwright was

called in and he completed the delivery. 2 At some point after the delivery, the hospital's risk-management director,

Pam Melton, interviewed the nursing staff and the physicians involved in the

delivery. The factual circumstances surrounding these interviews, such as

what was said during them, have not been fully developed at the trial court.

What evidence we do have concerns when and why the interviews occurred,

which is heavily disputed. There is no question, however, that the interviews

resulted in a set of handwritten notes and a typed version of those notes

(rendered in narrative form, with additional material apparently beyond the

handwritten notes). We refer to this pair of documents collectively as the

"notes" in this opinion.

The physicians claim that Melton began her interviews immediately after

the birth as part of the hospital's standard business procedures in generating a

document titled Root Cause Analysis, which is submitted to the Joint

Commission' as part of an accreditation process. The hospital, however, claims

that Melton's interviews did not begin until she received correspondence from

the hospital's counsel directing her to undertake the interviews, and that the

interviews were conducted in anticipation of litigation.

1 According to its website, the Joint Commission is "[a]n independent, not-for- profit organization ... [that] accredits and certifies nearly 21,000 health care organizations and programs in the United States." The Joint Commission, About the Joint Commission (last visited Jan. 7, 2016), at http: / /www.jointcommission.org/ about_us/ ab out_the _j oint_commission_main .aspx. 3 In January 2012, Wilhoite and the child's father filed a malpractice claim

on behalf of their daughter against Drs. Wainwright and Hall, Women's Care of

the Bluegrass, PLLC, 2 and Frankfort Regional Medical Center.

During the ensuing discovery, the Root Cause Analysis was produced,

and at least one of the nurses and Pam Melton were deposed. In her deposition,

Melton, according to the hospital's brief, "discussed at length ... the interviews

she conducted, her recollection of events, the Root Cause Analysis, and an

alleged disagreement that occurred between Drs. Wainwright and Hall at the

time of Roberts' birth." Before long, the hospital settled with the plaintiffs and

the claim against it was dismissed, leaving only the plaintiffs' claim against the

physicians.

As discovery continued, the plaintiffs' counsel suggested that Dr. Hall's

failure to respond to the nurses' requests for help had been because he had an

argument or disagreement with Dr. Wainwright the day of the delivery. The

physicians asked the plaintiffs' counsel to identify any witnesses to this

disagreement. He apparently refused to do so but named a nurse who might

have knowledge of it. She was re-deposed and claimed that she had not

observed any disagreement but that she had heard a rumor of one having

occurred.

A short time later, Wilhoite's counsel advised the physicians' counsel

that he was aware of two other nurses who would testify about the claimed

2 The record is not clear, but Women's Care of the Bluegrass would appear to be the practice of Drs. Wainwright and Hall. Unless otherwise noted, references to "the physicians" as parties herein should be read to include Women's Care of the Bluegrass. 4 disagreement. The physicians' brief claims that the plaintiffs' counsel refused

to identify these witnesses. Based on the e-mails included with the briefs,

however, it is apparent that the nurses who were claimed to have knowledge of

the dispute were identified explicitly. One of them was the one who had already

been deposed and re-deposed about the alleged dispute. The other was a nurse

named Bethany Abrams. Instead of the nurses' identity, it was the identity of

the person who named the nurses that plaintiffs' counsel refused to produce.

(He claimed that person's identity was "work product.")

The hospital's counsel eventually revealed in an e-mail to the physicians'

counsel that she (the hospital's counsel) was likely the source of the plaintiff's

information. According to the hospital's counsel, the only nurse she was aware

of who had knowledge of a supposed dispute was Abrams, though she was

unaware of the specifics. She identified two other nurses, one of whom she

claimed had no knowledge of the dispute and one of whom she claimed did not

recall a disagreement between the physicians.

The physicians became concerned that the supposed disagreement

between them would become an issue at trial. On February 2, 2015, they

served a subpoena duces tecum on the hospital seeking "any and all notes Pam

Melton generated during interviews conducted for purposes of creating the root

cause analysis of the events and circumstances surrounding the birth of

Braylee Roberts." The hospital moved to quash the subpoena, claiming the

notes were protected by both the attorney-client privilege and the work-product

doctrine.

5 The trial court overruled the motion to quash. As to the work-product

doctrine, the court concluded that the physicians had shown a substantial

need for the notes and that they could not obtain the information elsewhere

without undue hardship. As for the inability to obtain the information

elsewhere, the court noted that the nurses had been deposed and none had

testified about the alleged disagreement. The court also noted that the re-

deposed nurse stated that she had not observed a dispute and had only heard

about it from other staff, though she could not recall from whom. The court

concluded "that given the amount of time that has passed, it is impossible for

the [physicians] to obtain recollections from the nurses equivalent to those

obtained and documented by Ms. Melton in her notes," and that the physicians

"cannot obtain the information through further depositions." In reaching this

conclusion, the court emphasized "the inability of the witnesses to recall in

detail what happened the day Braylee [Roberts] was born," and also stated that

the "notes are the most reliable source of information regarding what the

nurses saw and reported."

The court also concluded that the notes were not prepared in

anticipation of litigation, as required by Duffy v. Wilson, 289 S.W.3d 555, 559

(Ky. 2009), because Melton "was legally required to create these documents

regardless of whether she was requested to do so by an attorney or whether she

planned to give them to an attorney to obtain legal advice." This conclusion was

based on the court's finding that the Root Cause Analysis was created in the

regular course of business, as required by 902 KAR 20:016, § 3(3)(A)(5)-(6),

6 and that the "notes were generated for the purpose of completing the Root

Cause Analysis."

As to the attorney-client privilege, the trial court again found that Melton

"was required by law to create these documents regardless of what any

attorney requested or whether she planned to use them to obtain legal advice."

The court also stated that it was "not convinced that Ms. Melton's notes ... were

solely the product of an investigation she was instructed to undertake by

counsel." The court emphasized that the hospital "had a legal duty to complete

a Root Cause Analysis report" and that the notes "were used to create that

report." The court also noted that there had been no evidence that counsel

requested the interviews before they were undertaken, and that it was more

likely that counsel became involved after they were done. The court concluded

its order by stating: "Based on a review of the record, ... the notes of Ms.

Melton were produced in the ordinary course of business, to facilitate the

completion of the Root Cause Analysis report ...."

The hospital filed a motion to reconsider along with a copy of a letter

from the hospital's counsel, dated May 9, 2011 (five days after the birth),

directing Melton to conduct an investigation of the birth and stating that the

investigation would be protected by the work-product doctrine and the

attorney-client privilege. Melton's own affidavit stated that although she did not

recall the precise date she began her interviews, she did not do so until after

receiving the letter.

The trial court denied the motion to reconsider and ordered the hospital

to produce the notes. The court specifically found "that the interviews 7 conducted by Ms. Melton were initiated prior to her receipt of the letter from

counsel." The court noted that some of the interviews appear to have been

dated after the letter from counsel was sent, but that the "record is silent as to

the exact date of any of the interviews" and that it "is clear from Ms. Melton's

deposition testimony that she began the interview process in the days

immediately following the incident, on May 4, 2011."

The court also pointed out that counsel's request for an investigation did

not change the fact that the investigation had already been undertaken and

was required by law (the administrative regulation). At best, the court

concluded, the investigation took on a "dual purpose," but that was insufficient

for the notes to fall under either the work-product doctrine or the attorney-

client privilege. The court also noted that "it is most likely that all of these

interviews would have been conducted in the same manner even if the letter

from counsel had never been sent." The court then noted that the attorney-

client privilege "is not designed to provide an ex post facto basis to cover-up

highly relevant factual information that was developed by the hospital staff for

its own internal review and quality control purposes, irrespective of potential

litigation concerns," and reiterated that the "record establishes that Ms.

Melton's internal investigation was initiated prior to the request of counsel."

The hospital then sought a writ of prohibition against the trial court's

order. The Court of Appeals agreed that the remedy of a writ was available

because, if the hospital's privilege claim was correct, there was no adequate

remedy by appeal and the breach of the privilege would be a miscarriage of

justice. But the court nevertheless declined to issue the writ, concluding that 8 the hospital had failed to show that Melton's notes were privileged or otherwise

protected. The court agreed with the circuit court that Melton used her notes to

generate the Root Cause Analysis and that Kentucky's administrative

regulations required hospitals to generate incident reports and other

documents. Based on these two conclusions, the court also agreed that the

notes were not used solely for obtaining legal advice. Thus, the court

concluded, the notes were not protected by the attorney-client privilege or the

work-product doctrine.

The hospital now appeals to this Court as a matter of right. See CR

76.36(7)(a) ("An appeal may be taken to the Supreme Court as a matter of right

from a judgment or final order in any proceeding originating in the Court of

Appeals."); Ky. Const. § 115 ("In all cases, civil and criminal, there shall be

allowed as a matter of right at least one appeal to another court ...."). It has not

asked this Court for intermediate relief under Civil Rule 76.36(4).

II. Analysis

Generally speaking, cases in which a writ of prohibition or mandamus is

sought proceed in two steps. Collins v. Braden, 384 S.W.3d 154, 158 (Ky.

2012). First, the court must look at whether such an extraordinary remedy is

even available, before deciding the merits of the claimed legal error. Id. Second,

if the court finds that the remedy is available, it may then look at the merits of

the claimed error. Id. If the trial court has erred or is about to err, the court

may issue the writ. A. Remedy by way of a writ is available.

The first question "is whether the hospital has established that remedy

by way of an extraordinary writ is even available to it." Id. Under this approach,

there are essentially "two classes of writs, one addressing claims that the lower

court is proceeding without subject matter jurisdiction and one addressing

claims of mere legal error." Id. at 158. The hospital has not made a claim under

the first class, and thus we address only the second.

Under the second class, a writ may be granted—that is, the remedy is

available—if "there exists no adequate remedy by appeal or otherwise and great

injustice and irreparable injury will result if the petition is not granted."

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). Of the two prerequisites for

this class of writ, the first is mandatory, and thus the hospital is required to

prove that it has no adequate remedy by appeal. Marcum v. Scorsone, 457

S.W.3d 710, 716 (Ky. 2015). The second prerequisite, however, is more flexible.

Though it usually requires proof of "something of a ruinous nature," it "may be

put aside in 'certain special cases." Grange Mut. Ins. Co. v. Trude, 151 S.W.3d

803, 808 (Ky. 2004) (quoting Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961)).

That limited sub-class of cases consists of those 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." Id. (quoting Bender, 343 S.W.3d at 801). This

includes those in which a privilege will be breached. Id.

Indeed, this court has held that an alleged violation of a privilege satisfies

both writ prerequisites—that "of no adequate remedy by appeal, 'because 10 privileged information cannot be recalled once it has been disclosed,' and the

substitute requirement in 'special cases' that the administration of justice

would suffer." Collins, 384 S.W.3d at 158. For that reason, "remedy by a writ of

prohibition is available to a petitioner claiming the potential violation of a

privilege." Id.

This obviously extends to the claimed attorney-client privilege. Id.

Though the work-product doctrine does not provide an absolute privilege, a

breach of its protection has also been held to satisfy both elements of the

special-cases writ test. O'Connell v. Cowan, 332 S.W.3d 34, 39 (Ky. 2010).

But availability of the remedy is not the end of our inquiry. We must still

look at whether the petitioner, here the hospital, is entitled to the writ, which

requires an examination of the merits of the claim of legal error. Here, we must

examine whether the hospital has established "that the lower court has

improperly ordered a disclosure that would violate a privilege." Id.

B. Standard of Review

Before examining the merits of the hospital's privilege claim, however, we

first need to speak to a misunderstanding about the standard of review. As

noted above, the trial court made several findings of fact about the timing and

purpose of Pam Melton's interviews and the notes she took. Findings of fact are

traditionally reviewed for clear error, meaning they are to be sustained so long

as there is substantial evidence to support them.

We noted in Collins v. Braden, however, that whether a "privilege applies

is a mixed question of law and fact that is 'often reviewed de novo.' 384 S.W.3d

at 161 (quoting Lexington Public Library v. Clark, 90 S.W.3d 53, 62 (Ky. 2002)). 11 From this, we reasoned that "rather than deferring to the Court of Appeals [on

the question of privilege], ... this Court must independently examine whether

the hospital has shown at this time that the privilege applies." Id. The hospital

has suggested that this would allow us to independently reach factual

conclusions about the timing and purposes of the interviews different from

those of the trial court. In other words, the hospital suggests, we would review

the trial court's factual findings in this respect de novo. That is incorrect.

Although the ultimate question of the existence of a privilege is reviewed

de novo, that determination consists of, and can be broken down into,

constituent parts—questions of fact, questions of law, and mixed questions of

law and fact (i.e., application of the law to the facts)—with each having its own

standard of review. See Trude, 151 S.W.3d at 810 (distinguishing between the

various aspects of a decision). Any finding of fact by the trial court is entitled to

deference and will not be disturbed absent clear error. Id. Indeed, such

deference makes even more sense in a writ action than in an ordinary appeal

because we are proceeding on an "abbreviated record," which "magnifies the

chance of incorrect rulings." Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008).

Moreover, we are not reviewing the trial court's order in the strictest

sense but, instead, are reviewing the Court of Appeals' action in granting or

denying the writ petition, which is an original action in that court. That review

has its own standards for the different aspects of the decision whether to grant

the writ, but they apply to the Court of Appeals' decision, not the trial court's.

Trude, 151 S.W.3d at 810. Because we are dealing with the second class of

writs, we would ordinarily give some deference to the Court of Appeals to the 12 extent it determined the factual question of great and irreparable harm to the

hospital. Id. But that is not really at issue in this case.

Instead, because we are addressing a question of evidentiary privilege

under the special-cases exception, we review the trial court's underlying factual

findings for clear error, while our review of whether the privilege applies, given

the facts found by the trial court, is de novo. Id. 3

C. The hospital has not established that the contents of the notes are protected by the attorney-client privilege.

The hospital claims that the notes are protected by the attorney-client

privilege. This is the broader of the two claims, as the attorney-client privilege

is absolute, with very limited exceptions that do not apply here. 4

The attorney-client privilege, as codified in KRE 503, grants "a privilege

to refuse to disclose and to prevent any other person from disclosing a

confidential communication made for the purpose of facilitating the rendition of

professional legal services to the client." KRE 503(b). The privilege extends only

to confidential communications, that is, communications "not intended to be

disclosed to third persons other than those to whom disclosure is made in

furtherance of the rendition of professional legal services to the client or those

3 We have also noted repeatedly that whether to issue the writ is ultimately in the sound discretion of the court to which the petition was submitted if that court correctly found the Hoskins prerequisites had been shown. Trude, 151 S.W.3d at 810. That decision is subject to review for abuse of discretion. Of course, the Court of Appeals concluded in this case that the hospital had not shown the existence of the privilege—in other words, that the trial court was not acting in error—and thus did not issue the writ. By resolving the case in this manner, the Court of Appeals never reached the stage where it could exercise its writ discretion. Thus, the abuse-of- discretion standard for that decision is not at issue here. 4 Those exceptions are addressed in KRE 503(d), and include things like communications made in furtherance of crime. 13 reasonably necessary for the transmission of the communication." KRE

503(a)(5).

The privilege, of course, protects such communications made by the

client to the lawyer. KRE 503(b)(1). It also encompasses communications made

by a "representative of the client" and those made to "a representative of the

lawyer," id., and extends even to communications between representatives of

the client, KRE 503(b)(4), and between representatives of the lawyer and the

lawyer, KRE 503(b)(2).

The client in this case was the hospital, but the communications claimed

to be privileged are those made by the physicians and nursing staff to the risk-

management director. Such communications can be covered by the privilege,

however, as the physicians and the nurses can be representatives of the client.

For the employees to be representatives of the client, and thus have their

statements covered by the privilege, their communications must have been

made "in the course and scope of [their] employment," about "the subject ,

matter of [their] employment," and "to effectuate legal representation of the

client." KRE 503(a)(2)(B). This distinguishes between employees who are

actually acting in a representative capacity (and thus whose statements are

cloaked by the privilege) and those who are "mere eyewitnesses," whose

statements are not protected. Collins, 384 S.W.3d at 162. In other words, an

employee representative must know that his statement is being given to obtain

legal advice, or it is not privileged under the attorney-client privilege as set

forth in the rule itself.

14 There is no question that the nurses and physicians interviewed made

their statements in the course of their employment and that their statements

were about the subject matter of their employment, because they were involved

in the patient's care and their statements related to that care. See St. Luke

Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 776 (Ky. 2005) (applying privilege to

statements by nurses involved in patient's care to risk manager). There is,

however, some question whether their statements were made "to effectuate

legal representation for the client," as discussed below.

The applicability of the privilege in a case like this turns on two

questions. First, were "the statements ... made for the purpose of obtaining or

furthering the rendition of legal services to the client"? Collins, 384 S.W.3d at

161 (citing KRE 503(b)). Second, were the communications actually

confidential, "meaning they [we]re 'not intended to be disclosed to third persons

other than those to whom disclosure is made in furtherance of the rendition of

professional legal services to the client or those reasonably necessary for the

transmission of the communication'"? Id. (quoting KRE 503(a)(5)). These are

actually related inquiries, as they focus on the circumstances surrounding the

making of the statements and the purposes for which they were made. These

inquiries are intended to distinguish between statements made wholly or

primarily in the ordinary course of business or made by mere eyewitnesses,

and those made by persons acting as agents of the client for the purpose of

obtaining legal advice.

The trial court resolved the privilege question in this case by concluding

that the notes were not for the purpose of facilitating the rendition of legal 15 advice. The court reached this conclusion because it found that: (1) the

interviews were begun before communications were received from counsel, (2)

the interviews served a dual legal-business purpose, and (3) the notes were

used to make reports that were required to be made by law and thus were part

of the ordinary course of business of the hospital.

We accept the trial court's finding that Melton began her investigations

before the hospital's counsel contacted her. The record contains contradictory

evidence on this point and would thus support a conclusion either way. Melton

claimed that she did not act until receiving the lawyer's letter, yet the

physicians point to one of their own affidavits showing that at least one of the

interviews occurred before that letter was sent. Although the parties cite other

evidence, these items alone would have supported the trial court's decision

either way, and it was the trial court's job to resolve the discrepancy. The trial

court's finding need only be supported by substantial evidence to be affirmed.

The physician's affidavit was such evidence. Thus, we cannot say the trial

court's finding on this point was clearly erroneous.

But the timing of the communications is not dispositive of the privilege

question because the privilege does not depend on the statements' solicitation

by counsel. 5 As noted above, the privilege extends to communications made for

5 We held in Haney v. Yates, 40 S.W.3d 352, 354 (Ky. 2000), that a statement by a taxi-cab driver to the taxi company's in-house safety department was not made in furtherance of the rendition of legal services because no lawyer was yet involved in that case. That opinion, however, does not apply to this case, because the statements in question were not made by employees but by independent contractors. The question concerned the application of KRE 503's definition of a confidential communication, which extends to communications "not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional 16 the purpose of obtaining legal advice, and it extends to statements made by

representatives of the employer, both to the lawyer and his representatives and

to other representatives of the employer as well, when made for the purpose of

obtaining legal representation. It is easy to imagine that an employer could

begin collecting confidential statements from its employees in anticipation of

seeking legal advice before actually consulting with counsel. No doubt, the

practice is common. Such internal, confidential dialogue, if its primary purpose

is to obtain legal advice, can be protected by the privilege. Cf. Collins, 384

S.W.3d at 160 (stating privilege may apply to statements collected pursuant to

a hospital's internal policies, rather than directions of counsel, if they were

"made as part of a comprehensive program by which the hospital seeks to

determine, with the assistance of counsel, the best legal strategy to pursue in

regard to the tort that may have happened on the hospital's premises").

Requiring the privilege to turn on solicitation by counsel would render it

largely meaningless. The privilege is to be viewed from the perspective of the

client, not the lawyer. It exists to encourage the client to be open and frank

with counsel, and to thus facilitate the attorney-client relationship. That the

client speaks first should not render the statement unprivileged. Rather, the

legal services to the client or those reasonably necessary for the transmission of the communication." KRE 503(a)(5). The case went on to address the insurer-insured extension of the attorney-client privilege as applied to self-insured entities. Additionally, Haney did not address the second way to make a communication confidential: making it to someone "reasonably necessary for the transmission of the communication." KRE 503(a)(5). An in-house risk manager who will liaise between the client and the lawyer to be employed is the sort of person reasonably necessary for the transmission of the communication to counsel. 17 purpose of the client in making the statement controls the applicability of the

privilege.

It is also important to remember that the representative of the client

essentially stands in the shoes of the client for purposes of the privilege's

application. If the statements in this case had been made directly by the client

to the lawyer, without the lawyer's solicitation, they would be protected as long

as they were for the purpose of soliciting legal advice and were confidential.

That they were instead made by a representative of the client to yet another

representative of the client or a representative of the lawyer does not extinguish

the privilege. See Lexington Public Library v. Clark, 90 S.W.3d-53, 59 (Ky. 2002)

("If the communication would have been privileged if made to the attorney, it is

no less privileged because it was made to [another employee] who forwarded it

to the attorney.")

Nevertheless, the trial court also concluded that the interviews were not

taken for the purpose of obtaining legal advice, as required by KRE 503,

because they were also used to prepare the Root Cause Analysis, which the

trial court concluded was required by law to be prepared. Indeed, the court

specifically found, at first, that the sole purpose of Melton's investigation was to

assist her in preparing the Root Cause Analysis, which was a business

purpose. After being presented with a letter from the hospital's counsel

directing Melton to investigate, the court concluded that the investigation had a

dual purpose, which still barred the privilege.

The physicians make much of the trial court's conclusion that Melton's

investigation was undertaken, at least in part, to facilitate the production of a 18 report purportedly required by law. The law in question is 902 KAR 20:016

§ 3(3), which regulates hospital operations and states that "administrative

reports shall be established, maintained and utilized as necessary to guide the

operation, measure of productivity and reflect the programs of the facility." Id.

§ 3(3)(a). Those reports "shall include ... [i]ncident investigation reports; and ...

[o]ther pertinent reports made in the regular course of business." Id.

§§ 3(3)(A)(5)-3(3)(A)(6). A plurality of this Court recently suggested that this

regulation extends to reports sent to accreditation entities, like the Joint

Commission. See Tibbs v. Bunnell, 448 S.W.3d 796, 804 (Ky. 2014). The trial

court anticipated this approach, concluding that the Root Cause Analysis was

required to be created under the regulations. The trial court, however, reasoned

further that if this report had to be created, then any and all interviews used in

preparing the report were also "required" and thus were not for the purpose of

It does not necessarily follow that the regulation required the interviews

and other investigative steps undertaken by Melton simply because they were

ultimately used to prepare the Root Cause Analysis. 6 It is theoretically possible

that the investigation might have been undertaken in a different manner if its

6 Tibbs's suggestion that accreditation reports are required by the regulation is also questionable. As the hospital notes, the regulation qualifies the required reports with "as necessary." 902 KAR 20:016 § 3(3)(a). But who is to determine what is necessary in this context? If it is the hospital, then it is the hospital's decision that led to the creation of the report, not the regulation. Moreover, Melton's' deposition established that the Root Cause Analysis was not n an "incident report" as that phrase is commonly used in hospital administration. It could then fit, at best, under the catch-all provision for documents generated in the ordinary course of business. But reporting to the Joint Commission is voluntary. That a hospital undertakes such reporting as part of its business again suggests that it is the hospital that dictates whether the report is generated, not a government regulation. 19 only purpose was to prepare the Root Cause Analysis. As the hospital points

out, the Root Cause Analysis focuses only on processes at the hospital and

does not seek to assign fault or blame to individuals; in fact, individual actors

are not even to be identified in that report, according to the Joint Commission's

own requirements. And we have noted: "Whether a particular communication is

privileged depends (absent waiver) not on what use was ultimately made of the

communication, but on the facts and circumstances under which the

communication was made." Lexington Public Library, 90 S.W.3d at 59.

Of course, the trial court found that it was "likely" that the investigation

would have proceeded in the same manner even if counsel had not asked for it.

And having reviewed the notes themselves, which have been filed under seal,

this Court agrees that it is unlikely that they would have been taken in a

substantially different form. The notes primarily name the various persons

interviewed and attribute various statements to them. Although the Root Cause

Analysis does not require that the various actors be named, it still requires

some reference to their identity, e.g., as an on-call physician, rather than one

who is merely present or a nurse. Given this necessity, we do not see how

Melton's notes would have been different if she had never been contacted by

the hospital's counsel.

We need not delve into the thorny questions raised by the application of

Tibbs and this regulation, however. Regardless of whether the interviews were

required to be undertaken, the fact is that their results were used to prepare

the Root Cause Analysis. Pam Melton admitted this fact, going so far as to state

that she kept a copy of her notes for this purpose. Even assuming that the 20 hospital was not required by law to prepare the Root Cause Analysis, the

simple fact is that it did prepare the document.

And the trial court found that preparation of this document was one of

the purposes behind Melton's investigation. This finding of fact is also

supported by substantial evidence—namely, Melton's own admission that she

prepared the Root Cause Analysis from her notes and kept a copy of them for

that purpose—and is not clearly erroneous.

Moreover, that is a business purpose. The hospital is correct that

preparing for litigation is not part of the ordinary course of business of a

hospital per se. Cf. Palmer v. Hoffman, 318 U.S. 109, 113 (1943) ("But the fact

that a company makes a business out of recording its employees' versions of

their accidents does not put those statements in the class of records made 'in

the regular course' of the business within the meaning of the Act."). Rather, the

hospital's business is operating a hospital. Although that no doubt includes,

primarily, treatment of patients and provision of medical care, it extends

beyond that to all of the day-to-day operations of such a facility. It would

extend, for example, to practices "aimed at reducing waste or hiring qualified

employees." Collins, 384 S.W.3d at 160.

That would not necessarily extend to activities such as investigations of

torts committed on the hospital's premises; such activities are often, instead,

"for the purpose of assessing the risk of and preparing for possible litigation."

Id. It is for that reason that such records are not included in the hearsay

exception for records of regularly conducted activities. See Palmer, 318 U.S. at

113 (1943); see also Timberlake Const. Co. v. U.S. Fidelity and Guar. Co., 71 21 F.3d 335, 342 (10th Cir. 1995) ("It is well-established that one who prepares a

document in anticipation of litigation is not acting in the regular course of

business."). Litigation, even if it is a common occurrence and has an effect on a

business, requires the party to step outside its ordinary business.

But incident investigations, at least under circumstances like those in

this case, can also have a business purpose. The ex post facto assessment of an

incident can have a business purpose where, for example, it is aimed at future

preparation and remedial measures, or at simply maintaining basic safety

standards. It can also be part of an accreditation process, as was the case here

where the Root Cause Analysis was submitted to the Joint Commission.

Accreditation may be required by law, or it may simply make the business

more attractive to customers (or, in this case, patients). In a hospital, where life

and death is literally on the line, constant self-examination and assessment of

risk is necessarily part of the daily operation of that business and thus has a

business purpose unrelated to litigation.

The question, then, is whether statements made for a dual purpose—

both for obtaining legal advice and for a business purpose, such as preparing

accreditation reports—are protected by the privilege. We need not go so far as

to say that a communication is protected by the privilege only if it had as its

sole purpose the obtaining of legal advice. But obtaining legal advice must be

the primary or predominant purpose of the confidential communication to fall

under the privilege.

This Court has not expressly laid out that rule before, though it has

suggested it. See Lexington Public Library, 90 S.W.3d at 59-60 ("Finally, lw]hen 22 the ultimate corporate decision is based on both a business policy and a legal

evaluation, the business aspects of the decision are not protected simply

because legal considerations are also involved."' (quoting Hardy v. New York

News, Inc., 114 F.R.D. 633, 643-44 (S.D.N.Y. 1987))). But it makes sense

because the attorney-client privilege "protects only those disclosures necessary

to obtain informed legal advice which might not have been made absent the

privilege." Fisher v. United States, 425 U.S. 391, 403 (1976) (emphasis added).

And it appears to be the general rule across the United States. See 1 Paul Rice

et al., Attorney-Client Privilege in the United States § 7:6 (2015-2016 ed.)

("Although courts occasionally state that the client's communications to the

attorney must be 'solely' for the purpose of seeking legal advice for the privilege

to apply, there is general agreement that the protection of the privilege applies

only if the primary or predominant purpose of the attorney-client consultation

is to seek legal advice or assistance." (footnotes omitted) (citing federal cases)).

Where the disclosures are made with dual purposes, and the business

purpose is equal or predominant, they cannot be covered by the privilege, at

least where they would have been made for the business purpose anyway. And

here, as the trial court found, the interviews would likely have been conducted

in the same manner regardless of counsel's directions to undertake them.

Conversely, when the predominant purpose is in furtherance of litigation, the

privilege does apply, providing the communication was confidential.

The physicians, of course, argue that because Melton's interviews and

notes had at least a dual purpose, just as the trial court held, the privilege does

not apply. But we are concerned about the interviews only to the extent that 23 they elicited confidential statements from possible representatives of the

hospital—the physicians and nurses. In this scenario, as an investigator,

Melton was simply a pass-through for the statements, which did not lose any

applicable privilege simply because they were not communicated to the

attorney directly. Instead, the statements are to be treated as though they were

made by the employees (who, if they are representatives of the client, are to be

treated as the client) directly to the lawyer. And despite the physicians' and

trial court's suggestions otherwise, Melton's subjective purpose in undertaking

the interviews does not control whether the privilege applies.

The relevant purpose for determining the privilege is the purpose of the

client on whose behalf the statements are made, here, the hospital. But the

employees' statements can only fall under the attorney-client privilege if they

were acting as representatives of the client in making the statements. Again, a

representative of the client stands in the shoes of the client, making the

statement essentially that of the client.

As mentioned briefly above, there are three requirements for an employee

to be considered a representative of the client. The first two of these—that the

communications were made in the course and scope of employment, and were

about the subject matter of the employment—are clearly shown here.

The difficult question concerns the third requirement: that the employee

made the "confidential communication ... [t]o effectuate legal representation for

the client." KRE 503(a)(2)(B). Implicit in this requirement is that, to some

extent, the employee's awareness of the purpose of the communication he or

she makes is relevant in determining the privilege. If the employee is ignorant 24 of the reason he or she is being interviewed, how can the statements be

reasonably understood to be confidential or made "to effectuate legal

representation"? They cannot.

Indeed, this understanding was part of the U.S. Supreme Court's

reasoning in extending the privilege to statements made by a mere employee

(rather than restricting it to members of a corporation's "control group") in

Upjohn Co. v. United States, 449 U.S. 383 (1981). As the Court noted, such

employees can be representatives of the client in making privileged statements

if they are "sufficiently aware that they were being questioned in order that the

corporation could obtain legal advice." Id. at 394 (emphasis added).

Although Upjohn is not binding on this Court, our KRE 503, which

extends the privilege to statements made by a representative of the client, is

modeled after the system laid out in that decision. See Lexington Public Library,

90 S.W.3d at 59 (noting KRE 503 embodies the more expansive federal

approach). And though we have not expressly held that the employee's

awareness of the purpose of the statements is relevant in determining whether

the privilege applies, we have declined to find a privilege where "the record

[wa]s silent as to ... whether, at the time the communications were made, the

persons who made them were aware that the communications were being

elicited to effectuate legal, as opposed to business, advice." Id. at 63. This

approach is consistent with that of other jurisdictions that have adopted the

25 representative-of-the-client model of the privilege over the control-group

approach.?

We expressly hold today that statements by a corporate client's employee

can be privileged only if the employee is aware that his or her statements are

being elicited for the purpose of obtaining legal advice. This is consistent with

the very rationale behind the privilege—that is, to encourage clients (and their

representatives) to be frank with their lawyers in furtherance of the attorney-

client relationship. If an employee does not have reason to know that a

statement he or she makes is for the purpose of obtaining legal advice, the

purpose of the privilege is not served.

Thus, the subjective intent or purpose of the corporate client's or lawyer's

investigator (like Pam Melton) who questions another employee of the client,

does not, by itself, clothe the employee's responses in the privilege. At the same

time, the employee's subjective intent in making the statements, to the extent it

differs from the corporate client's, also does not control the applicability of the

privilege, and thus the privilege cannot be defeated by an employee later

claiming to have made the statements for a purpose other than obtaining legal

7 For examples, see Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court for City and Cty. of Denver, 718 P.2d 1044, 1049 (Colo. 1986) (noting absence of employee's awareness as one of several reasons for rejecting privilege claim); Broessel v. Triad Guar. Ins. Corp., 238 F.R.D. 215, 218 (W.D. Ky. 2006) ("The attorney-client privilege also extends to communications made by noncontrol group employees ...while the employees were aware that they were being questioned in order that the corporation could obtain legal advice"); United States ex rel. Hunt v. Merck-Medco Managed Care, LLC, 340 F. Supp. 2d 554, 556-57 (E.D. Pa. 2004) (noting that "privilege applies when ...the employees were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice"); Bruce v. Christian, 113 F.R.D. 554, 560 (S.D.N.Y. 1986) ("Attorney-client privilege extends to any employee communicating on matters within the scope of his employment when that employee is aware that he is being questioned in confidence in order for his employer to obtain legal advice."). 26 advice. When the employee in question makes the statements toward legal

representation, he or she is acting as an agent of the employer. And it is the

purpose of the employer, as the client, that dictates the existence of the

privilege. However, the employer's purpose must be communicated to the

employee, or the employee must be aware of it in some other way (such as if it

is standard practice in the company to collect such statements to obtain legal

advice).

The trial court thus erred by focusing solely on Pam Melton's purpose in

undertaking the interviews and making her notes. That purpose may not have

been communicated to the nurses and physicians, though it would obviously

be relevant if it had, and they may not have otherwise been aware of it.

The pertinent question is whether the nurses and physicians were aware

of why Melton was obtaining the statements. Did she tell them that she was

questioning them in anticipation of litigation? Was it the standard practice in

the hospital to undertake such questioning for that purpose? Or did Melton

possibly tell the nurses and physicians that she was questioning them to

prepare the accreditation reports, either in whole or in part? We simply do not

know the answers to these questions.

It is very likely, given the nature of risk management's ordinary role in

the day-to-day functioning of a hospital, that the nurses were aware of why

they were being questioned. But that showing has not been made in this case.

As we have stated on many occasions, privileges of all stripes are to be strictly

construed. E.g., Collins, 384 S.W.3d at 159 ("The analysis in any privilege case

`begins with the almost universally accepted rule that testimonial privileges are 27 generally disfavored and should be strictly construed."' (quoting Stidham v.

Clark, 74 S.W.3d 719, 722-23 (Ky. 2002))). And "the burden is on the party

claiming the privilege to prove that it exists as to the communications so

claimed." Collins, 384 S.W.3d at 161 (quoting St. Luke Hosps., 160 S.W.3d at

775). That burden, therefore, falls to the hospital.

At least on the current record, we cannot conclude that the hospital has

met that burden to establish that the privilege applies. It has offered no

evidence that the nurses and physicians were aware of why Melton was

questioning them. In many hospital cases, there is no question on that subject.

But here, there is evidence that Melton herself had a mixed motive in

undertaking the interviews and that she used the interviews, at least after the

fact, for a business purpose. We know only that Melton, at least after receiving

the attorney letter, had a mixed purpose, but that does not resolve the

question.

We note that unlike in Collins, the hospital has at least filed the notes in

question under seal with this Court. But our review of those notes does not

disclose the purpose for which any of the statements recorded in them was

made.

"This is not to say that the privilege does not apply to any of the

statements." Collins, 384 S.W.3d at 164. It is possible that the statements

were, in fact, made primarily to assist the hospital in obtaining legal advice and

to prepare for a possible lawsuit, despite Melton's subjective purpose, and that

the nurses and physicians were aware of why they were being questioned by

Melton. The record simply does not show that at this time. But, as in Collins, 28 "the hospital still has the opportunity in the future to establish that the

privilege covers the documents or at least parts of them." Id. at 165. While we

do not issue a writ at this time, it may be that the hospital can show other

proof of whether the nurses and doctors knew their statements were being

taken for the purpose of litigation, thus making them confidential for the

purpose of securing legal representation. A timely motion to the trial court for

leave to produce proof consistent with this opinion would stay discovery of the

statements until the motion could be heard. Any further inquiry, however,

should focus on the hospital's purpose in having the statements taken and the

extent that the persons making the statements were aware of that purpose, not

on Pam Melton's subjective purpose.

D. The hospital has not established that the notes are covered by the work-product doctrine.

The remaining question is whether Melton's notes should have been

shielded from discovery under the work-product doctrine. The work-product

protection stems from Civil Rule 26.02(3). It is not a pure privilege, in that it is

simply a bar on discovery and is far from absolute.

Applicability of the protection is determined by 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). The trial court held that the

hospital had failed on both counts.

29 We have stated that the test for determining if the document was

prepared in anticipation of litigation is "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." Id. (quoting 8 Charles Alan Wright, Arthur R. Miller, & Richard L.

Marcus, Federal Practice and Procedure §2024 (2d ed.1994)). This is commonly

referred to as the "'because of standard." United States v. Roxworthy, 457 F.3d

590, 593 (6th Cir. 2006).

On this point, the trial court concluded that Melton's notes had not been

made in anticipation of litigation because they had been made as part of

producing the legally required Root Cause Analysis. We need not address the

validity of the trial court's conclusion in this regard—though, as noted above, it

is questionable whether the Root Cause Analysis is legally compelled by the

administrative regulations cited by the trial court—because it does not matter

whether the Root Cause Analysis was required by law or generated voluntarily.

The relevant facts are that the hospital did complete the Root Cause Analysis

and, as also found by the trial court, that Melton's notes were generated, at

least in part, to prepare that document. Here, the purpose of the interviewer is

relevant, and the trial court found that she had a dual purpose at the very

least.

That the notes were prepared for dual purposes, one of which was an

ordinary business purpose, is arguably dispositive of the work-product

question. The because-of approach "withholds protection from documents that

are prepared in the ordinary course of business or that would have been 30 created in essentially similar form irrespective of the litigation." United States v.

Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998). And as discussed above, Melton's

investigation and resulting notes were part of the hospital's ordinary business

because their purpose, even if only in part, was to help in preparing the Root

Cause Analysis for submission to the Joint Committee

Yet the hospital argues that a dual purpose does not by itself remove a

document from the work-product privilege. It cites federal cases stating, for

example, that "a document can be created for both use in the ordinary course

of business and in anticipation of litigation without losing its work-product

privilege." Roxworthy, 457 F.3d at 599. This Court does not disagree, but that

quote does not mean a document is protected simply because it has any

litigation purpose or use. As Roxworthy states in the same paragraph,

"documents do not lose their work product privilege merely because they were

created in order to assist with a business decision, unless the documents would

have been created in essentially similar form irrespective of the litigation." 45 7 .

F.3d at 598-99 (emphasis added) (internal quotation marks and brackets

omitted) (quoting Adlman, 134 F.3d at 1202).

And as the trial court also found, "it is most likely that all of these

interviews would have been conducted in the same manner even if the letter

from counsel had never been sent." This is not exactly the same as concluding

that the notes—that is, the documents that are claimed to be protected here—

would have been made in essentially similar form, but it is close enough. And,

again, having reviewed the notes themselves, which have been filed under seal,

31 this Court concludes that there is no reason to think that they would have

been taken in a different form simply because litigation was anticipated.

For that reason, this Court concludes that at this pOint the hospital has

not shown that the notes were prepared in anticipation of litigation, so they are

not covered by the work-product protection. Because they are not work

product, we need not address the exception to that doctrine, even though the

trial court did.

III. Conclusion

Because the hospital has so far failed to prove that the attorney-client

privilege or the work-product doctrine protected Melton's notes, this Court

cannot say that the trial court erred in ordering their production. For that

reason, the order of the Court of Appeals denying the writ of prohibition is

affirmed.

Minton, C.J.; Cunningham, Noble and Venters, JJ., concur. Keller, J.,

concurs in result only by separate opinion in which Hughes and Wright, JJ.,

join. Wright, J., concurs in result only by separate opinion in which Hughes,

J., joins.

KELLER, J., CONCURRING IN RESULT ONLY: I concur with the majority

that, at this point in time, the hospital has not established that the attorney-

client privilege protects Melton's notes from discovery. I write separately to

clarify what I believe should be the appropriate analysis with regard to the

attorney-client privilege.

Initially, I note that I agree with the majority that it is not clear that "the

interviews and other investigative steps undertaken [by Melton] were required 32 by [902 KAR 20:016 § 3(3)] simply because they were ultimately used to

prepare the Root Cause Analysis." Whether Melton undertook the investigation

pursuant to regulation or in the regular course of business is not dispositive. If

Melton began and completely conducted her investigation simply to fulfill a

regulatory requirement (whether required by law or by business practice) that

investigation would likely not fall under the protective umbrella of the attorney-

client privilege. However, if Melton began the investigation to fulfill a

regulatory requirement but then continued the investigation at the request of

counsel, at least part of the investigation might fall under that protective

umbrella. The fact that the investigation was begun for one purpose does not

mean that purpose "colors" the entirety of the investigation. Once Melton

received the May 9, 2011 letter, the focus, scope, and purpose of the

investigation could have changed. However, as the majority notes, there simply

is not enough information in the record to make this determination.

I also agree that it is certainly possible that the investigation had a dual

purpose. Melton admitted that she conducted this investigation, in part, to

prepare the Root Cause Analysis. She also stated that she did not begin her

investigation until after she received the May 9, 2011 letter. Therefore, the

record supports the circuit court's finding of a dual purpose.

The circuit court found that the investigation undertaken by Melton

would have been the same whether she undertook the investigation to fulfill a

regulatory requirement or at the request of counsel. The majority agrees;

however, I disagree. Before the circuit court can compare one investigation to

another, there must be some evidence regarding how each investigation is 33 undertaken. Here the only evidence is how Melton undertook this

investigation. There is nothing in this record for the court to use as a

comparison; therefore, there is no evidence to support the circuit court's

conclusion that Melton's investigation would have proceeded along the same

path regardless of her purpose.

Furthermore, I agree with the majority that, when determining if the

attorney-client privilege has attached to a statement, the trial court must

examine why the statement was made, i.e. was it made for the purpose of

facilitating the rendition of professional legal services to the client." KRE

503(b). However, I disagree with the majority's conclusion that the purpose of

the interviewer should not be considered. The trial court must examine both

the purpose of the interviewer and the purpose of the interviewee. This is

particularly true in cases such as this, where the interview is not being

conducted by the attorney or a non-client representative of the attorney, but by

an individual who is also the client. As the circuit court and the majority

recognize, the interview process may have been different depending on whether

Melton was conducting it in order to complete the Root Cause Analysis or at

the request of counsel. Therefore, Melton's purpose for conducting the

interviews, while perhaps not controlling, is not wholly irrelevant.

Finally, I agree with the majority that "the hospital still has the

opportunity in the future to establish that the privilege covers the documents

or at least parts of them." Collins, 384 S.W.3d at 164. The circuit court should

refrain from enforcing its disclosure order until the parties have had the

opportunity to develop proof regarding the preceding. In re-assessing the 34 applicability of the attorney-client privilege, the circuit court must keep in mind

the following: simply because an investigation begins as an unprivileged

activity does not mean that it continues to be unprivileged throughout its

existence; and when determining whether the privilege attaches, the purpose of

both the investigator and the client/interviewee must be established and

considered. Furthermore, the circuit court must have some evidence regarding

the differences and/or similarities between a root cause analysis investigation

and an attorney requested investigation, before it can determine what type of

investigation Melton undertook. In other words, there must be some objective

evidence setting forth what distinguishes a privileged investigation from an

unprivileged one.

Hughes and Wright, JJ., join.

WRIGHT,- J., CONCURRING IN RESULT ONLY: While I fully concur on

all other grounds, I concur in result only as to the majority's attorney-client

privilege analysis. Here, the hospital is the entity seeking legal advice. The

hospital hired the attorney in order to obtain legal advice, and the interviewee

and interviewer were both employees of the hospital acting within the scope of

their employment. The motives of these parties was to do their jobs. Therefore,

that motive is immaterial. The motive of the hospital (as shown through the

actions of its Board of Directors, executives, employees, and applicable policies

and procedures) should control the attorney-client privilege analysis.

Hughes, J., joins.

35 COUNSEL FOR APPELLANT:

Bryan Todd Thompson Millicent Ann Tanner Eleanor M. B. Davis Chad Owens Propst Thompson Miller & Simpson, PLC 734 West Main Street, Suite 400 Louisville, Kentucky 40202

APPELLANT:

Honorable Phillip James Shepherd Circuit Judge, Franklin Circuit Court Franklin County Judicial Center 222 St. Clair Street Frankfort, Kentucky 40601

COUNSEL FOR REAL PARTIES IN INTEREST:

Clayton Lee Robinson Jonathan David Weber Kimberly Goetz Desimone Robinson 86 Havens, PSC 101 Prosperous Place, Suite 190 Lexington, Kentucky 40509