               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4){C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR.USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY.COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENC>ERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                  RENDERED: AUGUST 24, 2017
                                                       NOT TO BE PUBLISHED

                $Suprttttt ©:nurf nf ~tnfurku
                               2017-SC-000167-MR


EMSL ANALYTICAL, INC.                                                  APPELLANT


                    ON APPEAL FROM COURT OF APPEALS
V.                     CASE NO. 2017-CA-000029-MR
                 MCCRACKEN CIRCUIT COURT NO. 13-CI-00530



HONORABLE CRAIG Z. CLYMER, JUDGE,                                       APPELLEE
MCCRACKEN CIRCUIT COURT

AND

GZA GEOENVIRONMENTAL, INC.; KIM                     REAL PARTIES IN INTEREST
ANDERSON; MICHAEL MCCOY; QUANYI
LI; HALLOIN MURDOCK S.C.; SCOTT
HALLOIN; BOBBY RUDELL MILLER, JR.;
ANGIE G. HULETTE; WALLER HULETTE;
AUDREY HULETTE; EMILY HULETTE;
ANDREW REID HULETTE


                    MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

     A panel of the Court of Appeals denied the petition of EMSL Analytical, Inc.,

for a writ prohibiting the trial court from enforcing a discovery order it had

issued at the request of GZA GeoEnvironmental, Inc., in a civil action pending
                                           '
in the trial court. The Court of Appeals declined to issue the writ because

EMSL had not shown that it would suffer irreparable injury without the writ

and further failed to shciw the existence of facts to justify a writ under the

special-case exception. We affirm the result reached by the Court of Appeals.
                I. FACTUAL AND PROCEDURAL BACKGROUND.
   The Hulette family contracted a bacterial infection know as MRSA. In

response, the Hulette family hired GZA to perform tests to find the source of

the bacteria. In turn, GZA contracted with EMSL Analytical to perform the

laboratory testing. After running its tests, EMSL opined that the samples were

positive for MRSA. After learning the results, the Hulette family sued Paducah

Water Works in .circuit court. During discovery in the Hulettes' suit against

Paducah Water Works, Dr. Quanyi Li, the EMSL employee who performed the

MRSA test, testified in deposition that he did not perform a complete test and

that the results were unreliable. As a result, the Hulettes dismissed their suit

against Paducah Water.

   Following the dismissal of their case against Paducah Water, the Hulettes

sued their former attorneys, GZA, and EMSL. The Hulettes asserted multiple

claims, but most important for today's decision is their fraud claim. Dr. Li,

testifying at a second deposition, testified that there had been widespread

contamination issues from 2007 to 2010 at the EMSL location where he

performed the MRSA test.

   GZA then sought to depose Jason Dobranic, the EMSL employee who

approved Dr. Li's reports. GZA requested production of numerous documents

for the deposition. EMSL objected to GZA's request for production, basing its

objection on the assertion that the requested documents were irrelevant and

production of them created an undue burden. GZA then moved the trial court

for an order compelling production, which the trial court granted. While


                                        2
complying partially with this order, EMSL sought a writ of prohibition as to one

particular part of the reques_ted discovery, archived e-mails pertaining to its

communications with GZA from 2007 to 2010. More specifically, GZA sought

production of all EMSL e-mails from 2007 to 2010 in which the term "GZA" is

used.


                                          II. ANALYSIS.


   A writ is an extraordinary remedy and is one we apply with great caution.

When ruling on a writ petition, we must determine whether issuance of a writ

is an available remedy. Only if a writ is available will we then look to the merits

of the petition to review the trial court's decision. The decision to issue a writ is

entirely within this Court's discretion.I We have recognized two specific

situations where this type of relief is appropriate:

        [U]pon a showing that (1) the lower court is proceeding or is about
        to proceed outside of its jurisdiction and there is no remedy
        through an application to an intermediate court; or (2) that the
        lower court is acting or is about to act erroneously, although
        within its jurisdiction, and there exists no adequate remedy by
        appeal or otherwise and great injustice and irreparable injury will
        result if petition is not granted.2

As the Court of Appeals noted, EMSL asserted the trial court proceeded

erroneously within its jurisdiction. EMSL argues that the cost of production of

these archived e-mails would be excessive and overly burdensome because of

the amount of time required to retrieve them. But, the Court of Appeals



        1   Hoskins v. Maricle, 150 S.W.3d 1, 5 (Ky. 2004) (citations omitted).
        2   Id. at 10.

                                               3
correctly held that litigation expense is not sufficient to rise to the level of an

irreparable injury warranting the exercise of our supervisory power to interrupt

the trial court's orderly process.3 Accordingly, EMSL's argument based on cost

and effort of production fails.

   A more interesting argument posed by EMSL is that its petition for a writ

falls within the special-cases exception to the ordinary writ standard. The

premise of EMSL's argument lies within our holding in Grange Mutual

Insurance Company v. Trude. 4 Grange acknowledged that there are special

cases where a writ may be granted "[where] a substantial miscarriage of justice

will result if the lower court is proceeding erroneously, and correction of the

error is necessary and appropriate in the interest of orderly judicial

administration."5 But our use of a special-cases exception is rare and generally

"limited to situations where the action for which the writ is sought would

violate the law, e.g. by breaching a tightly guarded privilege or by contradicting

the requirements of a civil rule."6

   EMSL seeks relief under the special-case standard by pointing out that it

has forty-one locations ranging throughout the United States and Canada and

its laboratories regularly conduct testing for GZA and its twenty-eight

locations. Further, the estimated cost to produce the e-mails ranges from




      3   National Gypsum Company v. Corns, 736 S.W.2d 325, 327 (Ky. 1987).
      4   Grange Mutual Insurance Company v. Trude, 151 S.W.3d 803 (Ky. 2004).
      s   Id. (quoting Benderv. Eaton, Ky., 343 S.W.2d 799,800 (Ky. 1961)).
      6   Id. at 809 (citations omitted) ..

                                              4
$42,000 - $890,000. But the crux of EMSL's position is that all e-mails about

the business relationship between GZA and EMSL, in all their locations, over a

span of three years, is simply not relevant to the Hulettes' fraud claim.

    We recognize that the discovery request appears to cover locations

encompassing a wide geographic area and the estimated expense of it is

enormous, but we are confident that the request does not violate any civil rule

nor does satisfaction of the request create a miscarriage of justice. The e-mails

are narrowly tailored to involve only the two litigating parties and for a period

of three years. Further, it is not alleged that the e-mails requested contain any

privileged information that would be inappropriate for GZA to receive.

Conceding that many of the e-mails obtained may not themselves be

admissible as evidence or critically relevant to the claim, we recognize that our

civil rules encourage open discovery practices.7 We are sensitive to the

monetary quotes produced by EMSL for recovery of these e-mails, but the

inconvenience and cost of litigation do not constitute a basis for granting a

special writ.


                                 III.      CONCLUSION

   For the foregoing reasons, the Court of Appeals is affirmed.

   All sitting. All concur.




        7 Kentucky Civil Rule 26.02(1) ("Parties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the pending
action ... it is not ground for objection that the information sought will be inadmissible
at trial if the information sought appears reasonable calculated to lead to the discovery
of admissible evidence.").

                                            5
COUNSEL FOR APPELLANT:

Jane C. Higgins
Phillips, Parker, Orberson & Arnett, PLC


Honorable Craig Z. Clymer, Judge
McCracken Circuit Court

COUNSEL FOR REAL PARTIES IN INTEREST, ANGIE G. HULETTE, WALLER
HULETTE, AUDREY HULETTE, EMILY HULETTE AND ANDREW REID
HULETTE:

Theodore W. Walton
Laura Elizabeth Landenwich
Clay, Daniel, Walton & Adams, PLC

COUNSEL FOR REAL PARTY IN INTEREST, GZA GEOENVIRONMENTAL, INC.,
KIM ANDERSON AND MICHAEL MCCOY:

Judd Uhl
Russell Salisbury
Katherine Kennedy
Lewis, Brisbois, Bisgaard & Smith, LLP


COUNSEL FOR REAL PARTY IN INTEREST, QUANYI LI:

Michael P. Casey
Lisa Fauth
Robert Sean Quigley
Casey, Bailey & Maines, PLLC

COUNSEL FOR REAL PARTY IN INTEREST, HALLOIN MURDOCK, S.C. AND
SCOTT:
   '
Edward  H. Stopher
Boehl, Stopher & Graves, LLP

COUNSEL FOR REAL PARTY IN INTEREST, BOBBY RUDELL MILLER JR.:

Jonathan Freed
Ben Elliott Stewart
Bradley, Freed & Grumley, PSC


                                         6
