The attorney-client privilege in Kentucky with regard to statements by a corporation's employees turns on whether the employees' statements regard matters within the scope of their employment. This point the Kentucky Supreme Court again emphasized recently in Collins v. Braden, No. 2011-SC-770 (October 25, 2012).
The case was a medical malpractice case. The principal defendant, Baptist Healthcare Systems, had outside counsel investigate the incident in question and claimed the attorney-client privilege applied to two documents: an "Investigative Case Report" and a "Risk Occurrence Report." The trial court ordered the documents produced; the hospital corporation obtained a writ of prohibition from the Court of Appeals.
The Supreme Court, in an unanimous decision written by Deputy Chief Justice Mary C. Noble, reversed the Court of Appeals and vacated the writ. First, while an assertion of privilege is presumed valid, it is burden of the party claiming its privilege to establish its application. Second, while statements of employees to the corporation's lawyers can be privileged, the statements must be within the scope of the employee's employment and must regard matters within the scope of employment.
This second point is critical and provides a critical limitation under KRE 503(a)(2)(B)(ii) on the attorney-client privilege as applied to corporations under Kentucky law:
The limitation under KRE 503(a)(2)(B)(ii) is even more important. It distinguishes between employees who are "mere eyewitnesses" to an alleged tort by happenstance, and those who are witnesses because of their employment (and, more often than not, are alleged to have been involved in the tortious conduct). As Professor Lawson notes, this requirement is perhaps the most important because it "distinguishes between those employees who qualify as clients and those who must be viewed as mere witnesses." The distinction is perhaps best illustrated by an example used in the commentary that was included when the rules were first proposed in the 1990s:
Suppose, in a suit for personal injuries sustained when the client's truck entering the client's loading yard struck a pedestrian, the lawyer for the client interviews the driver of the truck and a secretary who happened to be looking out the window when the accident occurred. The interview with the driver would be privileged but not so the interview with the secretary because the accident was not a matter within the course and scope of her employment.
Evidence Rules Study Committee, Commentary to Proposed KRE 503(a)(2), Final Draft (November 1989), quoted in Lexington Public Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002).
Ultimately, the Court resolved that it could not determine how or whether the attorney-client privilege did or did not apply to the documents in question, because the hospital had not created a record sufficient for review of the question. Accordingly, the case was remanded to the circuit court for further proceedings.
The leading case cited by the Court was Lexington Public Library v. Clark, 90 S.W.3d 53 (Ky. 2002), where Robert L. Abell represented the plaintiff and real party in interest.
Robert L. Abell
www.RobertAbellLaw.com
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