Summary
The Supreme Court of Kentucky held that the Court of Appeals erred in issuing a writ of prohibition preventing the deposition of the plaintiffs' attorney. The court concluded that the plaintiffs impliedly waived attorney-client privilege by placing the timing and substance of attorney communications at issue in their statute-of-limitations defense. It reversed and vacated the writ, holding that the requested deposition satisfied the requirements for deposing opposing counsel.
Topics
Practice areas
Questions Presented
- Whether the Court of Appeals properly issued a writ of prohibition to prevent the trial court from compelling the deposition of plaintiffs' attorney.
- Whether plaintiffs impliedly waived attorney-client privilege by asserting that their claims accrued only when their attorney informed them of a possible causal connection between their disease and respirator equipment.
- Whether defendants satisfied the requirements for deposing opposing counsel by showing that the information sought was relevant and not privileged, unavailable through other means, and crucial to the preparation of the case.
Holdings
- Plaintiffs impliedly waived attorney-client privilege with respect to communications concerning when they and their attorneys learned of a possible connection between the respirators and coal workers' pneumoconiosis because plaintiffs placed those communications directly at issue in opposing the statute-of-limitations defense.
- Defendants satisfied the requirements for deposing opposing counsel because the information sought was relevant and not privileged, could not be obtained through other means, and was crucial to preparation of the statute-of-limitations defense.
- The writ of prohibition was improper because the trial court did not act erroneously in compelling attorney Holliday to appear for deposition.
Key quotations
“Under McMurry, opposing counsel may only be deposed upon a showing by the party seeking discovery that (1) the information sought is relevant and not privileged, (2) no other means exist to obtain the information, and (3) the information is crucial to the preparation of the case.” (188)
“The inquiry for the trial court "is whether allowing the privilege to protect against disclosure of the information would be manifestly unfair to the opposing party."” (189)
“The information the Defendants seek to obtain by deposing Holliday is relevant and not privileged, not capable of being obtained by other means, and crucial to the preparation of the case.” (190)
Factual background
Coal miners and estates alleging coal workers' pneumoconiosis sued manufacturers and distributors of respirator equipment, including 3M Company and American Optical Corporation, claiming the equipment was defective. Defendants asserted that the claims were barred by the one-year statute of limitations, while plaintiffs claimed they did not learn of a possible causal connection between their disease and the respirators until their attorney informed them. After plaintiffs placed the timing and substance of attorney-client communications at issue, defendants sought to depose attorney James Holliday regarding when he and the plaintiffs learned of the possible connection.
Procedural history
Coal miners and estates sued manufacturers and distributors of allegedly defective respirator equipment. After defendants moved for summary judgment based on the one-year statute of limitations, the trial court found a genuine issue of material fact concerning accrual and denied the motions. The trial court later denied plaintiffs' motion for a protective order and ordered their attorney, James Holliday, to appear for deposition. The Court of Appeals granted plaintiffs' writ of prohibition, and the Supreme Court of Kentucky reversed and vacated that writ.
Remand instructions
The Supreme Court reversed and vacated the Court of Appeals' issuance of the writ of prohibition. The opinion does not state additional specific remand instructions.