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Reynolds Consumer Products, LLC v. Commissioner of Department of Workplace Standards

Court of Appeals of Kentucky

January 3, 2020

REYNOLDS CONSUMER PRODUCTS, LLC APPELLANT
v.
COMMISSIONER OF THE DEPARTMENT OF WORKPLACE STANDARDS, KENTUCKY LABOR CABINET, COMMONWEALTH OF KENTUCKY APPELLEE

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 17-CI-004849

          BRIEFS FOR APPELLANT: Mitzi D. Wyrick Louisville, Kentucky Micah B. Schwartz Richmond, Virginia

          BRIEF FOR APPELLEE: John R. Rogers Frankfort, Kentucky

          BEFORE: ACREE, LAMBERT, AND L. THOMPSON, JUDGES.

          OPINION

          ACREE, JUDGE:

         Reynolds Consumer Products, LLC (Reynolds) appeals the Jefferson Circuit Court's May 2, 2018 order[1] compelling compliance with a subpoena issued by Kentucky's Division of Occupational Safety and Health Compliance (KOSH).[2] Reynolds argues KOSH lacked authority to issue such a subpoena or, in the alternative, the documents requested are protected by the "work-product" privilege. This Court concludes the privilege does apply and, therefore, reverses the circuit court's order and remands for further proceedings.

         BACKGROUND

         On November 4, 2015, a Reynolds employee suffered a serious injury while performing maintenance on an interfold machine located at its Louisville, Kentucky facility. Reynolds voluntarily reported the injury to KOSH, as required by both state and federal law. See 803 KAR[3] 2:180 and 29 CFR[4] 1904.39. During the investigation, KOSH discovered numerous health and safety violations and cited and fined Reynolds.

         Twenty-one days later, at Reynolds' Richmond, Virginia factory, another Reynolds employee was injured. This time, the injury was fatal. Again, Reynolds voluntarily reported the incident to the applicable state authority, the Virginia Occupational Safety and Health Compliance Program (VOSH), for investigation. Contemporaneously with the fatal accident, Reynolds' General Counsel, David Watson, hired Michael Brooks Consulting, LLC, [5] to investigate its cause. Watson's letter asked Brooks Consulting to serve as his "legal investigator" to "gather[] needed information for [Reynolds'] legal analysis and advice." (Record (R.) at 45.) He also asked Brooks Consulting to serve as the "consulting expert for the purposes of analyzing the information on the accident and preparing a root cause analysis [of the accident] for [Reynolds'] review." (Id.) Watson explained he needed the information to defend Reynolds against any "civil or criminal complaints filed by public agencies or by surviving family of the deceased." (Id.). He also instructed Brooks Consulting to mark its work as "Attorney Work-Product," to store it in a secure location, and to "share the information learned only with me and such persons as I may direct you . . . ." (Id.)

         Based on Brooks Consulting's investigation, Reynolds hired additional machine safety consulting companies to conduct safety audits at several Reynolds facilities, including the Louisville facility.

         Two years later, in 2017, another injury accident occurred at Reynolds' Louisville facility. Again, Reynolds self-reported to state and federal authorities. During this KOSH investigation, the plant manager referenced the prior safety audits, including the investigation of the Virginia accident. KOSH requested those reports, but Reynolds denied the request. This resulted in KOSH issuing a subpoena in accordance with KRS[6] 336.060.

         Reynolds filed an action in the Franklin Circuit Court to quash the subpoena. Although the circuit court denied the motion, it did not order Reynolds to produce the subpoenaed documents. The Kentucky Labor Cabinet initiated a separate action in the Jefferson Circuit Court to compel compliance with the subpoena. In response, Reynolds informed that circuit court it intended to petition the Court of Appeals for a writ vacating the Franklin Circuit Court order. To allow time for this Court to rule on the writ petition, the Jefferson Circuit Court scheduled a show cause hearing to be conducted two months later. Ultimately, the circuit court simply stayed the hearing.

         This Court denied Reynolds' writ petition from the Franklin Circuit Court action as premature.[7] The Jefferson Circuit Court lifted its stay and ordered Reynolds to honor the subpoena. This appeal followed.

         STANDARD OF REVIEW

         A trial court has the "ultimate discretion in discoverability," even when there is a question of privilege. O'Connell v. Cowan, 332 S.W.3d 34, 44 (Ky. 2010) (quoting Morrow v. Brown, Todd & Heyburn, 957 S.W.2d 722, 727 (Ky. 1997)). Therefore, we defer to the circuit court's considerable discretion. However, this Court will reverse the circuit court's order if it constitutes an arbitrary, unreasonable, unfair, ...


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