Kentucky Tort Journal

The Court of Appeals published Commonwealth of Kentucky v. Chauvin, 2008-CA-000027, which dealt with a Motion for a Writ of Prohibition vacating Judge McKay Chauvin’s Order to release a Plaintiff’s KASPER report. (Report kept by the Commonwealth showing narcotic prescription use). The Commonwealth argued that KRS 218A.202(6), as newly amended, prohibited disclosure of KASPER reports for the purpose of discovery or evidence in a civil action. The Circuit Court determined that the evidence was discoverable and that an apparent conflict existed between the statute governing the Cabinet’s disclosure and the rule pertaining to discovery, CR 26.01.

The Commonwealth argued that the Judge was acting outside his jurisdiction and that the argument was not one of discovery but of the ability of the legislature to create a KASPER statute while determining the scope of the disclosure of the information gathered. The Defendant in the action below argued that the statute, as amended, encroached on the separation of powers and the Judicial Branches prerogative on determining the scope of discovery in a civil action. The Attorney General’s Office intervened in the matter, arguing that the KASPER statute is governed by state and federal law privacy protections, which creates privileged material not subject to discovery. The AO’s Office made no distinction between confidential material and privileged material.

The Court of Appeals held that this was one of those very few cases that would substantiate the appropriate relief of a writ. It noted; “The trial court determined that Baumler’s KASPER records are relevant to the subject matter involved in the action and are reasonably calculated to lead to the discovery of admissible evidence. In so ruling, the trial court exercised its discretion and authority as the gatekeeper of the timing and scope of discovery in actions over which it presides.” As to the claims of privilege, these are not supported by the legislature’s use of the word “confidential” or its goals in maintaining confidentiality. The Court did not believe that the Commonwealth had shown the existence of a privilege, excluding this material from discovery under CR 26.01. Therefore, the statute as amended encroached on a responsibility and judicial function to control the scope and extent of discovery in civil actions.

The Court declined to vacate Judge Chauvin’s order. It did however, take exception with the order’s requirements that the KASPER report be turned over to defense counsel without an in camera review by the Judge to determine what if any of the material was discoverable. It ordered such a review upon remand.

Comment: Any attorney that has had this issue come up, knows it is a vital part of any defense. In the underlying case, the defense attorney argued that the material was relevant to show that it was more likely than not that the plaintiff’s prescription drug use was related more to his history of drug use, than any injury sustained in the accident. The best evidence of this history is the KASPER report which tracks narcotic prescription drug use. It was this relevancy that formed the basis of Judge Chauvin’s decision.

However, does this opinion provide a blueprint for the addition of language by the legislature, making merely confidential information, privileged? While the Court discusses the claims of privilege, which it dismisses, it never really talks about the viability of one if claimed. It would appear to this author that the legislature’s labeling of this material as privileged, is no less an encroachment on the Judical Branch’s function than claiming one in the first place. While privileges do exist, their existence and application is not one for the legislature to determine, but the Judicial Branch. That is, the Judicial Branch determines what is discoverable, then determines what is privileged and therefore exempt from discovery, not the legislature.