lMPORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS DES|GNATED ”NOT TO BE PUBL|SHED."
PURSUANT TO THE RULES OF ClVlL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
TH|S OP|N|ON |S NOT TO BE PUBL|SHED AND SHALL NOT BE
ClTED OR USED AS BlNDlNG PRECEDENT IN ANY OTHER
CASE IN ANY,COURT OF THlS STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR
CONS|DERAT|ON BY THE COURT |F THERE lS NO PUBL|SHED
OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE |SSUE
BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
DEC|S|ON lN THE F|LED DOCUMENT AND A COPY OF THE
ENT|RE DEC|S|ON SHALL BE TENDERED ALONG W|TH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.

RENDERED: AUGUST 24, 2017

§§upreme Court of BenMNIIA\EL

2017- SC- 000167- MR
@ATEW»DC

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 GeoEnvironrnental, 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 show 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

complying partially with this order, EMSL sought a writ of prohibition as to one
particular part of the requested 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.1 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 Hosk:ins v. Maricle, 150 S.W.3d 1, 5 (Ky. 2004) [citations omitted).
2 Id. at 10.

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.”~"" 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. Coms, 736 S.W.2d 325, 327 (Ky. 1987].

4 Grange Mutual Insurance Company v. Trude, 151 S.W.3d 803 (Ky. 2004).
5 Id. (quoting Bender v. Eaton, Ky., 343 S.W.2d 799, 800 (Ky. 1961)).

6 Id. at 809 (citations omitted).

$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.”).

COUNSEL FOR APPELLANT:

Jane C. Higgins
Phillips, Parker, Orberson 85 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 85 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 85 Smith, LLP

COUNSEL FOR REAL PARTY IN INTEREST, QUANYI LI:

Michael P. Casey

Lisa Fauth

Robert Sean Quigley

Casey, Bailey 85 Maines, PLLC

COUNSEL FOR REAL PARTY IN INTEREST, HALLOIN MURDOCK, S.C. AND
SCOTT:

EdWard H. Stopher
Boehl, Stopher 85 Graves, LLP

COUNSEL FOR REAL PARTY IN INTEREST, BOBBY RUDELL MILLER JR.;
Jonathan Freed

Ben Elliott Stewart
Bradley, Freed 85 Grumley, PSC

