                                                       RENDERED: MARCH 17, 2016
                                                             1111 P 1-1ISFFIED

                   0,Sujarentr Court of                      Ithir4            8I
                                   2015-SC-000606-MR
                                                           DAYS-I-1_4(g,
NORTON HOSPITALS, INC., D/B/A                                               APPELLANT
NORTON HOSPITAL


                        ON REVIEW FROM COURT OF APPEALS
V.                           CASE NO. 2015-CA-001324
                    JEFFERSON CIRCUIT COURT NO. 14-CI-005410




HONORABLE BARRY L. WILLETT, JUDGE,                                            APPELLEE
JEFFERSON CIRCUIT COURT, DIVISION I

AND

THOMAS K. ELLIOTT, AS CONSERVATOR                        REAL PARTIES IN INTEREST
OF THE ESTATE OF PRATIKSHYA
GURUNG, A MINOR, PARMILA GURUNG,
AND KHADGA GURUNG



               OPINION OF THE COURT BY CHIEF JUSTICE MINTON

                             REVERSING AND REMANDING


                Pratikshya Gurun.g 1 was born with brain damage and quadriplegia,

among other conditions, resulting in the filing the circuit court of a medical

negligence action FILED IN CIRCUIT COURT against Norton Hospital. This

case is before us on appeal from the Court of Appeals' dismissal as moot of a




       1   Because of Gurung's status as a minor, we will refer to Gurung as "the
Estate."
                                             1
writ action filed by Norton ever a discovery dispute with the Estate. We reverse

the dismissal and remand to the Court of Appeals for further review.

       During the course of routine discovery, the Estate requested production

from Norton of various hospital documents relating to patient safety—

documents Norton is required by law to create and maintain. These

documents involve the post-occurrence review and peer-review process. Norton

argued the documents were protected under federal law. 2 The Estate sought

and received from the trial court an order compelling Norton to produce the

documents. Consistent with our recent decision in Tibbs v. bunnell, 3 the trial

court conducted an in-camera review of the documents and determined they

were not privileged.

      While the parties were litigating over whether the patient-safety

documents were discoverable, other discovery proceeded. The trial court's

order compelling the production of the disputed documents and denying

Norton's privilege claim was entered August 31, 2015. A nurse who treated

Gurung during her time at Norton was scheduled to be deposed on September

2. On September 1, Norton filed in the Court of Appeals a petition for a writ of

prohibition as well as a request for emergency relief, i.e., an order staying

execution of the trial court's discovery order. Norton notified the Estate and

the trial court of this filing with the Court of Appeals.

      In response to Norton's maneuvers, the Estate sought and received an

emergency hearing with the trial court on September 1. The primary—if not



      2   See 42 U.S.C. § 299b-22(a).
      3   448 S.W.3d 796 (Ky. 2014).
                                          2
sole—purpose of the hearing was to determine if the nurse's deposition

scheduled for the following day could proceed as scheduled. The Estate made

clear that the deposition had been scheduled for months and any further delay

would be lengthy because the nurse was pregnant and nearing her delivery

date. The Estate argued that even though it wanted to use the disputed

documents at the nurse's deposition it mostly wanted the deposition to proceed

with or without the disputed documents.

       Norton was unable to get a hearing on its emergency motion in the Court

of Appeals before the Estate's emergency hearing with the trial court. After

hearing arguments, the trial court ruled that the nurse's deposition should

proceed as scheduled and the disputed documents should be provided to the

Estate. The trial court 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

"because the issue Norton raised [was] resolved below, and because [the] Court

[could not] grant meaningful relief to either party." Norton appeals that

decision to this Court as a matter of right. 4

       At the outset, we should be clear about the issue Norton now places

before us. Norton, of course, sought a writ in the Court of Appeals. A writ is


       4 Kentucky Rules of Civil Procedure (CR) 76.36(7)(a) ("An appeal may be taken
to the Supreme Court as a matter of right from a judgment or final order in any
proceeding originating in the Court of Appeals."); see also Ky. Const. § 115 ("In all
cases, civil and criminal, there shall be allowed as a matter of right at least one appeal
to another court. . . .").
                                            3
an extraordinary use of our discretionary authority—one that we are "cautious

and conservative both in entertaining petitions for and in granting such relief." 5

                                                                                          ObviouslytheCrfApa'dcisonelbthCour,ins

particular case, while a party is appealing from an adverse ruling on its writ

petition, we have a wholly insufficient record to review. And Norton does not

request a writ of prohibition from this Court. So our review of the Court of

Appeals' decision is not through the lens of our writ jurisprudence.

       A case becomes moot when a rendered judgment "cannot have any

practical legal effect upon a then existing controversy." 6 And "[t]he general rule

is, and has long been, that where, pending an appeal, an event occurs which

makes a determination of the question unnecessary or which would render the

judgment that might be pronounced ineffectual, the appeal should be

dismissed."7 This is essentially what the Court of Appeals did below. Were we

to rule that the Court of Appeals was erroneous, it is arguable whether or not

we can afford meaningful relief. We have repeatedly recognized that allegedly

privileged information, once disclosed, cannot be rendered undisclosed. On its

face, the trial court's decision to hand-deliver the disputed documents to the

Estate's counsel perhaps did render this action moot.

      The problem with this somewhat simplistic view of the instant

circumstances lies with the bedrock principle that a privilege is personal and

can only be waived by the party claiming the privilege. To the contrary, the

      5   Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961).
       6 Benton v. Clay, 233 S.W. 1041, 1042 (Ky. 1921) (citation and internal
quotation marks omitted).
       7 Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014) (quoting Louisville Transit Co.
v. Dep't of Motor Transp., 286 S.W.2d 536, 538 (Ky. 1956)).
                                           4
trial court, in essence, waived Norton's claim of privilege by literally providing

the Estate with the documents claimed to be privileged. 8 The trial court's act

does not resolve any legal issue—in fact, it creates more questions than

answers. A live legal controversy existed when Norton sought relief in the

Court of Appeals. For us to hold otherwise would be to dilute the role of

privilege in the discovery process and wrest control of the privilege from the

party asserting its application.

       To our knowledge, we have never dealt with similar conduct by a trial

court. We appreciate the special circumstances confronting the trial court 9

                                                                                   andtherialcourt'saemptoactpromptlyandequitably.Buti smportan

to emphasize that the trial courts are "not in the document delivery business;

instead, they are in the business of ruling on document delivery motions."'°

The responsibility to produce documents lies with the parties and the parties

alone. It is problematic for trial courts to surrender control of the documents

in this manner for a couple of reasons.

       First of all, it raises unnecessary questions about the record. By

handing over the documents that were produced for in-camera review, the trial


       8   See Commonwealth v. Barroso, 122 S.W.3d 554, 557 (Ky. 2003) ("We conclude
that her compelled testimony did not constitute a voluntary waiver of the privilege.");
see also Kentucky Rules of Evidence (KRE) 509; KRE 510(1) ("A claim of privilege is
not defeated by a disclosure which was compelled erroneously . . . .").
        9 At the time the Estate's emergency motion was heard by the trial court, the
nurse who was to be deposed was 7.5 months pregnant. Her deposition had been
scheduled by the Estate for months, and the Estate was concerned it would be many
more months before the deposition could occur if the trial court did not order it to
proceed. Also during this time, Norton's counsel was focused on her child's serious
illness, the progress of discovery. The case had pended for under a year, but the
nurse's deposition and the documents at issue had been a source of contention among
the parties for some time.
        10 In re Grand Jury Subpoeana, 190 F.3d 375, 387 (5th Cir. 1999).

                                           5
court created a gap in the record. Here, the trial court recognized this and

asked the Estate's counsel to make copies of the documents and return the

original versions to the trial court. This is simply not good practice—a trial

court should demand that the parties produce documents to one another

because this keeps the record intact while preserving a party's right to refuse

production or face appropriate consequential sanctions.

      Second, and most importantly, the trial court's production of the

documents in conjunction with the Court of Appeals' decision effectively

precludes a party from challenging a trial court's privilege ruling. A trial

court's ruling on an asserted privilege should not be insulated from review. A

question of privilege is of critical importance—so much so that we have

recognized routinely that it is worthy of our writ authority. In fact, privilege

rulings are virtually the only circumstances we have recognized worthy of our

"certain special cases exception" because 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.""

      The merit, or lack thereof, of Norton's privilege argument is secondary in

the context of the potential damage the lower courts' ruling could work on our

system of justice. 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



      11 Caldwell v. Chauvin, 464 S.W.3d 139, 145 (Ky. 2015) (quoting Bender, 343
S.W.2d at 801)).
                                         6
documents for in-camera review an opportunity to comply with the court's

order or stand in contempt.” 12

       Our holding today should not be read to say that a trial court cedes

jurisdiction when a party files a writ petition challenging a privilege ruling—far

from it. A trial court retains jurisdiction over the case and its discovery

methodology despite a pending writ. But a trial court must respect the writ

process and the party's right to proceed in that manner. Discovery in this case

did not have to stop because of Norton's writ petition. In fact, the Estate

requested the trial court compel the nurse's deposition to proceed even without

the challenged documents. This was permissible. 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 not privileged.

       No doubt a live legal controversy has existed throughout the instant

proceedings; yet, this all begs the question: even in the face of a live legal

controversy, what remedy could the Court of Appeals have provided Norton?

Most case law in this area stems from allegedly privileged material seized

unlawfully through, for example, an unconstitutional search. 13 In those

situations, courts have recognized that either returning the challenged

documents or suppressing evidence obtained from those documents, or both, is


       12 In re Grand Jury Subpoena, 190 F.3d at 388. The Fifth Circuit, in In re Grand
Jury Subpoena, noted that "Physically returning the documents to the owner or
custodian is not paramount here. What matters is that the district court allow the
individual some opportunity, on the record, to accept compliance with the court's
order or stand in contempt." Id. at 388 n.14. We agree.
       13 Carrier v. Commonwealth, 142 S.W.3d 670, 681 n.28 (Ky. 2004) (Keller, J.,
dissenting).
appropriate. 14 We acknowledge that the case law does not dovetail precisely

with the instant situation—the differences in criminal and civil proceedings

being what they are—but we see little reason not to recognize these available

options in the rare circumstances presented here. In the end, "[o]nce the

information is furnished it cannot be recalledn 15 ; but, these remedies provide

some measure of recourse where the trial court erroneously waived a party's

privilege by disclosing the documents in issue. This does not alter our case law

holding that a party seeking a writ from an order compelling discovery does not

have an adequate remedy by appeal. That remains true. Our decision today

should be limited to the unique circumstances presented.

       The Court of Appeals abused its discretion because its decision was not

based on sound legal principles. 16 Norton's writ action is not moot because

relief can still be afforded. It is true that the documents Norton alleges are

privileged have now been provided to the Estate, but options remain. We

remand the matter to the Court of Appeals for consideration of Norton's

asserted privilege in light of our decision in Tibbs v. Bunnell.


       All sitting. All concur.




        14 See National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d.Cir.
1980) ("To the extent that the files obtained here were privileged, the remedy is
suppression and return of the documents in question, not invalidation of the search.")
(citations omitted).
       15   Bender, 343 S.W.2d at 802.
       16 See Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)
("The test for abuse of discretion is whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.") (quoting
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
                                           8
COUNSEL FOR APPELLANT:

Beth Hendrickson McMasters
Noelle Bryant Haegele
McMasters Keith Butler, Inc.

Wesley Reed Butler
Chelsea Hayes
Benjamin M. Fiechter
Barnett Benvenuti & Butter, PLLC.


Barry Lee Willett, Judge, Jefferson Circuit Court, Division 1

COUNSEL FOR REAL PARTY IN INTEREST, THOMAS K. ELLIOTT, AS
CONSERVATOR OF THE ESTATE OF PRATIKSHYA GURUNG, A MINOR,
PARMILA GURUNG, INDIVIDUALLY, AND KHADGA GURUNG

Larry B. Franklin
Kelly Jo Brownfield
Patrick John Smith
Franklin Law Group




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