FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE,
JUDGE ACTION NO. 17-CI-004849
FOR APPELLANT: Mitzi D. Wyrick Louisville, Kentucky Micah B.
Schwartz Richmond, Virginia
FOR APPELLEE: John R. Rogers Frankfort, Kentucky
BEFORE: ACREE, LAMBERT, AND L. THOMPSON, JUDGES.
Consumer Products, LLC (Reynolds) appeals the Jefferson
Circuit Court's May 2, 2018 order compelling compliance with a
subpoena issued by Kentucky's Division of Occupational
Safety and Health Compliance (KOSH). 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.
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 2:180 and 29
1904.39. During the investigation, KOSH discovered numerous
health and safety violations and cited and fined Reynolds.
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,  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.)
on Brooks Consulting's investigation, Reynolds hired
additional machine safety consulting companies to conduct
safety audits at several Reynolds facilities, including the
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 336.060.
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
Court denied Reynolds' writ petition from the Franklin
Circuit Court action as premature. The Jefferson Circuit Court
lifted its stay and ordered Reynolds to honor the subpoena.
This appeal followed.
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,