Sometimes the best intentions of a trial court judge lead astray; so it was for Jefferson Circuit Judge Barry Willett in Norton Hospitals, Inc. v. Willett.
The underlying case was a medical malpractice case arising from the birth of a child with brain damage and quadriplegia. The plaintiff sought to compel production of certain post-occurrence and peer review documents, which the hospital claimed were not discoverable pursuant to federal law. Judge Willett reviewed the documents in camera and ordered them produced. The day after the order was entered the hospital sought a writ of prohibition from the Court of Appeals. In response, the plaintiff sought and obtained an emergency hearing from the trial court, the purpose of which, the Supreme Court emphasized, "was to determine if a nurse's deposition scheduled for the following day could proceed as scheduled." There was some urgency to complete the deposition, because the nurse was 7.5 months pregnant and a delay likely would prove protracted. The trial court ruled both that the deposition should go forward and that the documents should be delivered, a matter that the trial judge then "literally took matters into its own hands and handed the copies of the disputed documents Norton had submitted for in-camera review directly to counsel for the Estate, in open court and on the record." The Court of Appeals later dismissed Norton's writ petition as moot.
The Kentucky Supreme Court in an unanimous opinion authored by Chief Justice John Minton was more than a little critical of the trial court judge, observing:
- "the trial court, in essence, waived Norton's claim of privilege by literally providing the Estate with the documents claimed to be privileged.
- "the trial courts are 'not in the document delivery business; instead, they are in the business of ruling on document delivery motions. The responsibility of produce documents lies with the parties and the parties alone."
- "Best practice dictates that when a trial court 'conducts in camera review of documents, determines that production is appropriate and so orders, it should, as a matter of course, provide the party who submitted the documents for in-camera review an opportunity to comply with the court's order or stand in contempt."
- "The trial court simply cannot participate itself in discovery and produce documents that a party alleges are privileged in the face of a writ challenging the trial court's determination that they are privileged."
The Court concluded that the Court of Appeals abused its discretion when punting on the case on mootness grounds and remanded for further consideration and, at least implicitly, inviting a creative remedy.
