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University of Louisville v. Eckerle

Supreme Court of Kentucky

August 29, 2019

UNIVERSITY OF LOUISVILLE AND RUBY D. FENTON APPELLANTS
v.
HONORABLE AUDRA J. ECKERLE JUDGE, JEFFERSON CIRCUIT COURT, DIVISION SEVEN (7) APPELLEE AND C. WILLIAM HELM REAL PARTY IN INTEREST

          ON APPEAL FROM COURT OF APPEALS CASE NO. 2018-CA-000280-0A JEFFERSON CIRCUIT COURT NO. 15-CI-001410

          COUNSEL FOR APPELLANTS: Craig Christman Dilger Steven Clark Stoll Keenon Ogden, PLLC Ruby D. Fenton Tilford Dobbins & Schmidt, PLLC.

          COUNSEL FOR APPELLEES: Audra Jean Eckerle Jefferson Circuit Court Jefferson County Judicial Center Michael W. Oyler Reed Weitkamp Schell & Vice, PLLC.

          OPINION

          BUCKINGHAM JUSTICE.

         The University of Louisville and Ruby Fenton appeal from an order of the Court of Appeals denying their petition for a writ of prohibition/mandamus. We affirm in part and remand in part.

         I. BACKGROUND

         Appellee/Real Party in Interest C. William Helm (Dr. Helm) was an Associate Professor at the University of Louisville School of Medicine's Division of Gynecologic Oncology. In July 2009 the Promotion, Appointment, and Tenure Committee (PAT Committee) voted to promote Dr. Helm to Professor, and on July 18, 2009, Dr. Christine Cook (Department Chair at that time) recommended to Dr. Edward Halperin (Dean of the School of Medicine at that time) that Dr. Helm be promoted to that position.

         On October 1, 2009, Dr. Helm was suspended and placed on administrative leave based on allegations of plagiarism, for which he was later cleared, and allegations of failure to follow proper procedures for research approval. On October 14, 2009, the PAT Committee was reconvened, and it rescinded Dr. Helm's promotion.

         On October 23, 2009, Dr. Helm initiated a faculty grievance procedure against two of his supervisors, Dr. Christine Cook and Dr. Lynn Parker. Appellant Ruby Fenton (Fenton) had served as an attorney for the University prior to the grievance proceedings, and she was retained to represent Dr. Cook and Dr. Parker in the grievance proceedings. Her attorney fees were paid by the University; fees for Dr. Helm's attorney were not. Under the applicable personnel rules, the University was designated as a neutral arbiter in the faculty grievance process. Thus, Dr. Cook and Dr. Parker were represented by an attorney who had an ongoing attorney-client relationship with the University, the neutral arbiter in the process.

         On May 17, 2010, the University's grievance hearing panel unanimously found that Dr. Helm had been placed on leave in a manner totally contrary to the University's written policies. The panel recommended that the University comply with Dr. Helm's contract through its conclusion on July 31, 2010, and that Dr. Helm be allowed to re-submit his application for full professorship

         On June 18, 2010, Dean Halperin refused to accept the panel's recommendation that Dr. Helm be allowed to re-submit his application, stating it was moot because Dr. Helm's contract would expire on July 31, 2010. Dean Halperin had notified Dr. Helm in February of that year that his faculty appointment would not be renewed. As Dr. Helm had been advised, the University did not renew his faculty appointment, and his last day at the University was July 31, 2010.

         Dr. Helm filed the underlying action against the University in 2014. His claim, filed pursuant to an amended complaint, is a whistleblower claim pursuant to KRS[1] 61.102-103.

         During discovery, Dr. Helm served a subpoena upon Fenton seeking all written communications and notes reflecting communications between Fenton and any person associated with the University relating to the faculty grievance proceedings. The University and Fenton refused to produce the communications and asserted that the requested information was protected by the attorney-client privilege and the work-product privilege. See KRE[2] 503 (attorney-client privilege) and CR[3] 26.02(1) (work-product privilege).

         In September 2016 the trial court entered an order finding the communications to be privileged. On February 15, 2018, however, the trial court reversed its original ruling and entered an order permitting the discovery of all communications between Fenton and any University employee, excepting Dr. Cook and Dr. Parker who had been represented by Fenton in the grievance proceedings.

         Fenton and the University filed a petition for a writ of prohibition/mandamus in the Court of Appeals, seeking to prohibit the trial judge from enforcing her order compelling the University and Fenton to provide the communications with various University employees to the real party in interest, Dr. Helm, and seeking to direct the trial judge to enter an order denying Dr. Helm's motion to compel. The Court of Appeals subsequently remanded the proceeding to the trial court for additional findings concerning the applicability of the attorney-client privilege. The trial court then made the following additional findings of fact:

Upon remand from the Court of Appeals, the Court elucidates that the attorney-client privilege was both (a) waived pursuant to testimony and notes of Dr. Tracey Eells; and (b) non-existent between Ruby Fenton and any University employee other than Drs. Cook and Parker. The Court further notes the limited ...

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