        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   NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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
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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
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                                               RENDERED: FEBRUARY 18, 2016
                                                      NOT TG.

                ,S51tprttut (Court of
                               2015-SC-000410-MR


 KRAIG HANKINS and                                                    APPELLANTS
 KENNETH R. REED, ESQ.


                 ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2015-CA-000569
        GREENUP CIRCUIT COURT NOS. 14-CI-00223 AND 14-CI-00270


HON. THOMAS M. SMITH, SPECIAL JUDGE                                       APPELLEE
GREENUP CIRCUIT COURT


AND

CITY OF FLATWOODS, KENTUCKY;                         REAL PARTIES IN INTEREST
BOBBY F. CRAGER; BRENT DEAN;
CODY DEAN; CHRIS CASTLE;
MARTY HOFFMAN; SCOTT GILLUM;
AND HEATHER MCKENZIE


                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellants Kraig Hankins and his attorney, Kenneth R. Reed (collectively

referred to as "Appellants"), request a writ prohibiting the trial court from

enforcing its order compelling discovery. Hankins also requests a writ

mandating additional discovery concerning his wrongful termination and tort

claims. The Real Party in Interest is the City of Flatwoods, Kentucky (the

"City"). Having reviewed the record and the law, we affirm the 'Court of

Appeals' order denying Appellants' request for writs of prohibition and

mandamus.
                      Factual and Procedural Background

      In his underlying suit, Appellant Hankins alleges that he was wrongfully

terminated from his position as Chief of Police in retaliation for Hankins'

refusal to disclose information concerning an ongoing criminal investigation to

the City Mayor. In contrast, the City asserts that Hankins was terminated due

to insubordination, improper management, and sexual harassment. To clarify,

the present case involves an appeal from an administrative determination

under the Kentucky statutes governing police officer discipline, and a common

law wrongful termination claim. The Greenup Circuit Court consolidated the

two actions.

      The. City moved for summary judgment arguing, inter alia, that Hankins

failed to exhaust his administrative remedies. KRS 15.520; and KRS 95.450.

Neither Hankins nor his attorney, Mr. Reed, attended the administrative

hearing that addressed the alleged grounds for Hankins' termination.

      Prior to moving for summary judgment, the City attempted to subpoena

Attorney Reed to produce various documents. Reed contended that several of

the materials sought by the City were privileged. As such, Reed refused to

produce those documents. In addition to its motion for summary judgment,

the City moved to compel the production of those materials. The trial court

held a hearing on both motions.

      The court denied the City's summary judgment motion so that Hankins

could conduct discovery. The court granted the City's motion to compel in

part. In its order dated April 6, 2015, the trial court ordered Appellants to


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produce the following materials: 1) Attorney Reed's communications with the

Greenup County Commonwealth's Attorney regarding the City employees

named as defendants in the underlying case; 2) documents and electronic

communications between Reed and the City Attorney as requested in

Defendants' Subpoena Duces Tecuml; 3) responses to several discovery

requests that are only identified by number (i.e. Interrogatory Number 7); and

4) copies of two newspaper stories. It is from this order that Appellants appeal.

Appellants only take issue with items one and two. 2

       Appellants argue that the contested materials are privileged and relate to

an ongoing criminal investigation of City employees that is being conducted in

part by the Kentucky State Police. In order to protect this information,

Appellant filed a petition for a writ of prohibition in the Court of Appeals.

Appellant also filed a petition for a writ of mandamus and a motion for

intermediate relief in the Court of Appeals seeking to stay the trial court's

discovery order. The Court of Appeals denied the writ petitions and the motion

for intermediate relief. Only the issue of writ relief is before this Court.

                                  Standard of Review

       An appellate court has discretion to grant a writ where a trial court is

proceeding within its jurisdiction upon a showing that the court is: 1) acting or



        1      Although it is unclear from the trial court's order, the Court of Appeals
states that these materials concern "Reed's communication with the attorney for the
City while they were trying to schedule the administrative hearing."
       2      Appellants also request that this Court issue a writ so that Appellant
Hankins "does not have to answer certain Interrogatories . . . ." However, Appellants
have failed to develop that argument. Therefore we will not address it.

                                             3
is about to act erroneously; 2) there exists no adequate remedy by appeal or

otherwise, and 3) great injustice and irreparable injury will result if the petition

is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). We review the

Court of Appeals' determination under an abuse of discretion standard.

Sowders v. Lewis, 241 S.W.3d 319, 322 (Ky. 2007).

                                       Analysis

       On the issue of enforcement of the trial court's discovery order, the Court

of Appeals concluded that writ relief was unavailable to Hankins because he

failed to demonstrate irreparable injury. However, we have previously held that

"violation of a privilege satisfies both the requirement of no adequate remedy by

appeal, 'because privileged information cannot be recalled once it has been

disclosed,' and the substitute requirement in 'special cases' that the

administration of justice would suffer."       Collins v. Braden, 384 S.W.3d 154, 158

(Ky. 2012) (citing St. Luke Hospitals, Inc. v. Kopowski,    160 S.W.3d 771, 775

(Ky. 2005). Therefore, this case is proper for writ review.

       Nevertheless, the Court of Appeals was correct in holding that Appellants

failed to satisfy their burden of proving to the trial court that the contested

communications are privileged. 3 See Collins, 384 S.W.3d 154 at 163 (denying

writ relief to claimants where record was insufficient to permit determination

whether various documents regarding hospital's investigation of patient's death

were protected by attorney-client privilege).


      3        Appellants repeatedly refer to the communications as "privileged" without
stating which specific privilege that they are invoking. We will assume Appellants are
referring to the attorney-client privilege.

                                           4
      Collins provided three ways in which a party asserting privilege could

protect its interest: 1) an in camera review by the trial court; 2) a detailed

privilege log with descriptions sufficient to establish the privilege; or 3) an offer

of proof describing the documents. Id. at 164. Appellants have not availed

themselves of any of these approaches. Thus, Appellants have failed to

"provide the [trial] court with sufficient information to show the existence of the

elements of the privilege and to allow review of that decision by higher courts."

Id. at 164-65.

      Appellants contend that Collins is inapplicable here. They argue that we

should apply the standard in McMurry v. Eckert, 833 S.W.2d 828 (Ky. 1992). In

that case, this Court granted a writ prohibiting the trial court from ordering the

production of an attorney's notes concerning statements made by a physician

during an interview between the physician and the attorney.        Id. at 830. The

court determined that the notes were protected under the work-product

doctrine. Id. (citing CR 26.02(3)(b)). McMurry is inapplicable here because

Appellants are claiming that the communications that were the subject of the

trial court's order compelling discovery were protected by privilege, not the

work-product doctrine. Furthermore, the primary issue in McMurry discussed

the appropriateness of the practice of deposing opposing counsel, not the

disclosure of third party communications. In contrast, Collins addressed the

issue of attorney-client privilege. Thus, Collins is controlling here.

      Moreover, the communications at issue here were between Attorney Reed

and either the Greenup County Commonwealth's Attorney or the City Attorney.
These are clearly third party communications that are not protected by

attorney-client privilege.   See Collins, 384 S.W.3d at 159. Therefore, the Court

of Appeals did not abuse its discretion in denying Appellants' petition for a writ

of prohibition.

      Appellants also request a writ mandating additional discovery concerning

Hankins' wrongful termination case. On this issue, Appellants have failed to

demonstrate that they are entitled to writ relief. The Court of Appeals correctly

determined that although the trial court cautioned Appellants not to engage in

a fishing expedition, the trial court's order does not preclude the additional

discovery of the nature Appellants assert in their petition. Thus, the Court of

Appeals did not abuse its discretion in denying Appellants' petition for a writ of

mandamus.

      Appellants also speculate that the trial court may order Attorney Reed's

deposition and sanctions. However, these concerns were not mentioned in the

trial court's order at issue here. Therefore, we will not address these issues.

                                     Conclusion

      For the foregoing reasons, we affirm the Court of Appeals' order denying

Appellants' request for writs of prohibition and mandamus.

      All sitting. All concur.




                                          6
COUNSEL FOR APPELLANTS:

Kevin L. Murphy


APPELLEE:

Hon. Thomas M. Smith
Special Judge, Greenup Circuit Court


COUNSEL FOR REAL PARTIES IN INTEREST:

Licha Hannah Farah, Jr.
Robert Stephen McGinnis
Theodore R. Martin




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