Kentucky Law Review

CIVIL: "SCOKY Holds Prohibition Not Available Against Nonjudicial Public Officials; Prior Cases Permit Mandamus Against Nonjudicial Officers in Limited Circumstances"

From David Kramer's Civil Litigation Blog:

SCOKY Holds Prohibition Not Available Against Nonjudicial Public Officials; Prior Cases Permit Mandamus Against Nonjudicial Officers in Limited Circumstances

by David Kramer

The Kentucky Supreme Court held earlier this year that a writ of prohibition was not an appropriate remedy to challenge a County Attorney’s use of documents incorrectly purporting to originate from a court to require persons named in a criminal complaint but not yet charged to attend a mediation prior to issuance of a warrant or summons. 

In Minix v. Roberts, 350 S.W.3d 449 (Ky. 2011), the Court, while expressly disapproving of the practice, said relief by way of prohibition was not available to require the County Attorney to cease using emblems of the Court of Justice to require potential misdemeanants to attend mediation sessions, since a County Attorney is not a judicial officer.  The Court suggested that the proper procedure to challenge such a practice would be to seek an injunction or file a declaratory judgment action.  The Court concluded the opinion with a warning that the County Attorney should cease using judicial images on documents relating to the pre-warrant mediation program.

Click on linked heading above for the rest of the post.

Civil Rules: Comment - Let's delete the last half of Civil Rule 3 and do away with the requirement that a summons or warning order be issued in good faith

The time is now for us to modernize our civil rules to match up with the federal rules on what commences a lawsuit for compliance with the statute of limitations for filing.

We now have a SCOKY published decision in Nanny v. Smith regarding the filing of the complaint before the expiration but the issuance of the summons was after the deadline, but the SCOKY held the plaintiff had done all that the plaintiff could do for filing the complaint.

Now the COA has followed that lead (albeit in an unpublished decision) in which the plaintiff mailed his complaint to the clerk's office which arrived in time but again the summons was issued after the expiration. The COA applied Nanny v. Smith and held the lawsuit was timely filed and remanded it back to the circuit court.

When it comes to meeting the statute of limitations, the plaintiff needs to know (just as much as the defendant need to know) at what point has it been met. Well, it looks like we have a bright line by judicial precedent that if the complaint is in the clerk's office in time, then it is timely filed.  The plaintiff has done all he could or should do and now it is up to the clerk.  Thus, it is filed.

Now, let's change the rule and avoid the trap of timely filing. If it makes it to the clerk on time, the lawsuit is commenced.  Now, the rule, if changed, would need to make it clear that mailing using one of the services (UPS, Fed Ex, Registered Mail, etc.) that is timely mailed but untimely received either cuts or does not cut it. The time of mailing using one of those services that can be "monitored" independently of the filer (eg., the mailer puts the date on certified mail) works for appellate documents, but probably should not work for commencing the action.  Otherwise, we might just have the same quibling we now have but on a different field of battle.   A defendant just ought to be able to check the clerk's office or CourtNet and note when the suit was filed - bright line test.

Clocked and dropped is clear. 

In the court clerk's box is clear, too.

In the mail is not clear.

The Federal Rule is:

Rule 3. Commencement of Action

A civil action is commenced by filing a complaint with the court.

The Kentucky Rule is:

CR 3.01 COMMENCEMENT OF ACTION 

     A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.

The change is easy - just delete "and the issuance of a summons or warning order thereon in good faith".  And now you would have a clear understanding, and better use of time.

And now for the "NON"published decision that prompted this post:

1090. STATUTE OF LIMITATIONS.
HELTON (LISA)
VS.
JERRY'S DISCOUNT, INC
OPINION VACATING AND REMANDING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000658-MR
NOT TO BE PUBLISHED
MENIFEE

ACREE, JUDGE: The issue before us is whether the Menifee Circuit Court erred when it determined that Appellant Lisa Helton’s personal injury complaint was filed outside the applicable one-year statute of limitations because, though Helton delivered the complaint to the Menifee Circuit Court Clerk within the requisite time period, the Clerk did not file the complaint nor issue the required summons until after the limitations period had expired. After careful consideration, we vacate the circuit court’s order dismissing Helton’s personal injury suit, and remand for further proceedings consistent with this opinion.

FACTS:

On January 19, 2009, Helton slipped and fell on ice outside the front door of appellee’s, Jerry’s Discount, Inc., convenience store in Menifee County, Kentucky. Helton purportedly suffered injuries as a result of her fall. Helton endeavored to commence a personal injury action against Jerry’s Discount in Menifee Circuit Court within the required one-year statute of limitations. KRS 413.140(1)(a).

On Friday, January 15, 2010, Helton mailed the complaint, filing fee, and summons to the Clerk via the United States Postal Service (USPS) express mail with delivery confirmation. The USPS confirmed delivery of Helton’s complaint to the Clerk’s office at 9:31 a.m. on Tuesday, January 19, 2010, the last day of the limitations period.2    However, the Clerk did not file the complaint or issue the required summons until Thursday, January 21, 2010, two days after the statute of limitations expired.

ANALYSIS:

“A statute of limitations limits the time in which one may bring suit after the cause of action accrues.” Coslow v. General Elec. Co., 877 S.W.2d 611, 612 (Ky. 1994). In order to survive a motion to dismiss, the plaintiff must commence his or her suit within the relevant statute of limitations period. Kentucky Rules of Civil Procedure (CR) 3.01 governs the commencement of civil actions, providing that “[a] civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.” CR 3.01; see also KRS 413.250 (“[A]n action shall be deemed to commence on the date of the first summons or process issued in good faith from the court having jurisdiction of the cause of action.”). “Upon the filing of a complaint (or other initiating document) the clerk shall forthwith issue the required summons[.]” CR 4.01(1).

Historically, Kentucky courts have demanded strict compliance with the requirements set forth in CR 3.01. See DeLong v. DeLong, 335 S.W.2d 895 (Ky. 1960); Osborne v. Kenacre Land Corp., 65 S.W.3d 534 (Ky. App. 2001); Gibson v. E.P.I. Corp., 940 S.W.2d 912 (Ky. App. 1997). It is the plaintiff’s duty to ensure all appropriate steps have been taken to commence an action and, in line with this duty, the plaintiff is presumed to know the applicable statute of limitations. See Pospisil v. Miller, 343 S.W.2d 392, 394 (Ky. 1961). However, in Nanny v. Smith, 260 S.W.3d 814 (Ky. 2008), the Kentucky Supreme Court re- examined this issue.

In Nanny, the plaintiff desired to bring a personal injury action against the defendant arising out of a car accident. The applicable statute of limitations dictated the plaintiff had until Saturday, October 18, 2003, to file her personal injury suit. However, because the statute of limitations was set to terminate on a Saturday, the plaintiff actually had until Monday, October 20, 2003, to commence her action. On Friday, October 17, 2003, the plaintiff hand-delivered her complaint to the appropriate circuit court clerk. A time date stamp indicated the clerk received the plaintiff’s complaint on October 17, 2003, at 2:35 p.m. However, the clerk did not file the complaint or issue the required summons until Tuesday, October 21, 2003, one day after the statute of limitations expired. Consequently, the circuit court dismissed the plaintiff’s case.

On discretionary review, the Kentucky Supreme Court equitably tolled the statute of limitations because the clerk’s failure to file the plaintiff’s complaint and issue the required summons violated the mandates of CR 4.01(1) and exceeded the plaintiff’s control. Nanny, 260 S.W.3d at 818. Specifically, the court reasoned:
Once [plaintiff] delivered the complaint, she could reasonably expect that the summons would be issued within the statutory period. At that point, [plaintiff] had no further duty to ensure that the clerk [filed the complaint and] issued the summons within the limitations period. CR 4.01 (“[U]pon the filing of the complaint . . . the clerk shall forthwith issue the required summons and, at the direction of the initiating party, either” serve the summons and complaint by mail or transfer the summons and complaint to an authorized person for delivery and service); KRS 30A.030(1); Louisville & N.R. Co. v. Smith's Adm'r, 10 Ky. L. Rptr. 514, 87 Ky. 501, 9 S.W. 493, 495 (1888) (“[I]t is the official duty of the clerk to issue the summons in accordance with law, and it is not incumbent upon the plaintiff to see that he issues it in accordance with law.”). Nor did [plaintiff] have the power to compel the clerk to issue summons since, by statute, the clerk is under the supervision of the Chief Justice, not [plaintiff] or her attorney. KRS 30A.010(2).

Because [plaintiff] had neither the power nor the duty to ensure that the clerk perform official duties, she was prevented by circumstances beyond her control from having the summons issued in time. We believe that under these facts, [plaintiff] should not be held responsible for such circumstances. See Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954, 958-59 (1933) (upholding the petitioner's right to maintain an election contest on the basis that he was prevented by circumstances beyond his control from having the summons issued in time and that the delay in issuing the summons was due solely to the fault of the circuit clerk over whom the petitioner had no control).

Nanny, 260 S.W.3d at 817; see also Hagy v. Allen, 153 F. Supp. 302 (E.D. Ky. 1957) (applying Kentucky law, the federal court determined that, because the plaintiff had done everything possible to ensure her complaint was filed and summons issued before the statute of limitations expired, the plaintiff should not be punished for the clerk’s failure to perform her duties). The Kentucky Supreme Court acknowledged that “promptness in filing is essential to the proper function of the court system.” Id. at 818. However, under the facts of the particular case, the court reasoned that equity required the tolling of the statute of limitations. Id.

In the case sub judice, Helton contends that Nanny is directly on point and dispositive of her case. In response, Jerry’s Discount asserts Nanny provides a narrow exception to the hard-line rule requiring strict compliance with the statute of limitations and is factually distinguishable. Specifically, Jerry’s Discount attempts to distinguish Nanny, arguing that the plaintiff in that case had done everything in her power to ensure her complaint was timely filed, but Helton simply placed her complaint in the mail at the end of the statutory period and hoped it would reach the clerk’s office in time. We are not persuaded by that argument; we find Nanny to be factually similar to the case at hand and quite instructive.

Similar to the plaintiff in Nanny, Helton took reasonable steps to ensure her complaint was delivered to the clerk’s office prior to the expiration of the statute of limitations. Though Helton did not hand-deliver her complaint to the Clerk, she mailed her complaint via express mail with delivery confirmation four days before the statute of limitations expired. Additionally, via the USPS, Helton confirmed delivery of her complaint to the Clerk’s office at 9:31 a.m. on January 19, 2010, the last day of the limitations period. Therefore, just like the Nanny plaintiff, Helton knew the Clerk had received her complaint before the statute of limitations expired with ample time for the Clerk to file the complaint and issue the required summons. Nonetheless, for reasons unclear to this Court, the Clerk waited for two days after the limitations period expired to perform her duties.

As expressed by Justice Palmore, “common sense must not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Insurance Commission, 450 S.W.2d 235, 237 (Ky. 1970). Once an attorney has timely delivered the complaint to the proper court clerk, the attorney’s job is complete. The power then shifts to the court clerk to promptly perform his or her required duties. See KRS 30A.010 et al. It would be manifestly unjust to punish an attorney, and in turn his or her client, for the clerk’s failure to adequately execute his or her responsibilities. To conclude otherwise would result in disparity in our legal system which can neither be condoned nor tolerated.

Because Helton “had neither the power nor the duty to ensure that the clerk perform official duties, she was prevented by circumstances beyond her control from having” her complaint filed and summons issued before the statute of limitations expired. Nanny, 260 S.W.3d at 817. Therefore, under these unique circumstances, the one-year statute of limitations is equitably tolled. Id.; see also Robertson v. Commonwealth, 177 S.W.3d 789, 791-92 (Ky. 2005) (recognizing the doctrine of equitable tolling is applicable when a party is plainly prejudiced by unavoidable circumstances beyond the party’s control despite the party’s due diligence).

Conclusion
The Menifee Circuit Court’s order dismissing Helton’s personal injury action is vacated and this matter is remanded for further proceedings in accordance with this opinion.
ALL CONCUR.

Appeals: Ky COA Dismisses Appeal with Prejudice for Failure to Prepare Brief as required by CR 76.12(4)(c)!

This week's Minutes from the Kentucky Court of Appeals dismissed an appeal for appellants' counsel's failure to comply with CR 76.12(4)(c).  " After our review of the parties’ arguments, we decline to review the merits of said arguments, as the Appellants’ brief does not comply with CR 76.12(4)(c). Accordingly, we affirm the Magoffin Circuit Court."

Serious decision, serious result, serious consequences.  Take note.  Read the rules!

Here is a short squib from that opinion:

752. Appeal dismissed for failure of brief to comply with CR 76.12(4)(c).  Not a pro se brief!
Civil Procedure.  Dismissal for lack of prosecution.
DANIEL (LAQUATA GASPARAC), ET AL.
VS.
GREEN (THOMAS), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
VANMETER (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2009-CA-000663-MR
NOT TO BE PUBLISHED
MAGOFFIN

CAPERTON, JUDGE: Laquata Gasparac Daniel and Roy Daniel (hereinafter “the Daniels”) appeal from the March 30, 2009, order of the Magoffin Circuit Court which dismissed the Daniels’ cause of action with prejudice for a lack of prosecution and adopted the recommended findings of fact and conclusions of law submitted by the special commissioner. After our review of the parties’ arguments, we decline to review the merits of said arguments, as the Appellants’ brief does not comply with CR 76.12(4)(c). Accordingly, we affirm the Magoffin Circuit Court. * * *

After our review of the parties’ arguments, we decline to review the merits of said arguments, as the Appellants’ brief does not comply with CR 76.12(4)(c).

First, the Daniels do not inform this Court as to whether the claimed evidence or theory which supports their case was ever presented to the trial court. The Daniels do not cite to the record where such evidence or theory was presented, nor do they address whether the claimed error was preserved for appeal.

It is the responsibility of the Appellants to provide this Court with citation to the record supporting their arguments and to present to this Court how the claimed error was preserved for appeal. CR 76.12(4)(c)(v). It is not the function of this Court to scour the vast record on appeal in order to plead the Appellants’ case for them.1    See Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). See also CR 76.12(4)(c)(iv) and (v). It is also the responsibility of an appellant to ensure the record on appeal is complete and contains all of the evidence needed to facilitate appellate review, and in the absence of a complete record, we must assume the omitted portions of the record support the rulings of the trial court. Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).

Accordingly, we decline to address these arguments as we are unclear if these arguments or the evidence were presented to the trial court or preserved for appellate review. See Jewell v. City of Bardstown, 260 S.W.3d 348, 350-351 (Ky.App.2008)(“The circuit court did not address any of these issues in reaching its decision. We only review decisions of the lower courts for prejudicial error, consequently, without a ruling of the lower court on the record regarding a matter, appellate review of that matter is virtually impossible.”) and Shelton v. Commonwealth, 992 S.W.2d 849, 852 (Ky.App.1998)(“[A]n appellate court will not consider a theory unless it has been raised before the trial court and that court has been given an opportunity to consider the merits of the theory.”).

In light of the foregoing, we affirm the Magoffin Circuit Court.

=======================================

Here is extract of CR 76.12(4)(c) ----

APPELLATE DECISIONS (Pretrial deadlines): COA decision addresses effect of new trial date and old pretrial deadlines

A new trial date may or may not affect the existing pretrial deadlines, eg., disclosures of witnesses, experts, damages, exhibits, instructions etc.  Some guidance when the new trial order may not be clear is found in the COA decision of Rawlings v. Interlock Industries, Inc.  The decision has some extensive analysis on the statute of limitations (2 years vs. 1 year) that hinges on the use of a motor vehicle and the unloading of a truck.

Here is the extract from Judge Caperton's decision regarding the pretrial order:

APPELLATE DECISIONS: COA Reverses Trial Judge's dismissal for lack of prosecution for failure to make required findings

Senior Status Judge Lambert authored a decision which reversed and remanded the trial judge's dismissal for lack of prosecution for failure to make the required findings.  I can't say whether this published decision will mark a change in appellate attitude regarding these dismissals for lack of movement by one side or the other, but one might think depriving any party of their Constitutional rights to a jury trial for not moving the case forward is a harsh remedy which ignores the facts of the case.  Although it might be a little more work for the trial court in moving its own docket forward, I would like to think the courts would fall on the side of an opportunity to be heard.  Incredibly cumbersome to say the least, but requiring a trial date, following an opportunity to respond or take discovery,  would place the case in a posture for a dismissal, directed verdict, summary judgment etc which addresses the facts of the case rather than failure to prosecute. 

Here's the squib with link to full text:

Wildcat Property Management, LLC v. Reuss
2008-CA-002290 12/11/2009 2009 WL 4723203
Opinion by Senior Judge Lambert; Chief Judge Combs and Judge Moore concurred. The Court reversed and remanded an order of the circuit court dismissing an action with prejudice. The Court first held that because both CR 77.02(2) and the local housekeeping rule only provided for dismissal without prejudice, the dismissal with prejudice was, of necessity, pursuant to CR 41.02. However, the circuit court failed to properly exercise its discretion by failing to make the required findings as to why the case was dismissed.

DEPOSTIONS: Cross-examination by the use of compelled witness drawings should be a "no no"

How many times at a deposition have you seen a lawyer ask a witness other than his client to draw the accident scene with location of the cars, area of impact, lanes of travel, etc.?

We have all been trained to draw conclusions from questions and answers, but drawing diagrams is a whole new area for us to "Gogh".

Most of us have heard the old adage that a picture is worth a thousand words.  Of course, the adage does not play out at a deposition as there may be thousands of words that follow in spite of that drawing.

Well, this post addresses this issue from two angles.  First, from the digital angle on how technology can elevate you past the notepad moment.  Second, from the legal issues surrounding an attorney's efforts to cross-examine by drawing.

First, the digital realm and approach is addressed from a "borrowed" post from Finis Price at www.TechnoEsq.com's blog. 

PaperShow – An Affordable Interactive Whiteboard for Attorneys

By Finis Price on lawyer

Often in litigation, I find it necessary to have a deponent or a witness draw a particular scene or object in order to adequately show the listener or jury in understanding what is being described. Most often, this occurs in either motor vehicle collisions or premises liability cases where the location of witnesses, my client, . . . .[click on above heading for remainder of his post]

Second, have you ever thought what you were actually asking the witness to do and what are you going to do with that final product?

The usual objection by some counsel is if the witness is a party (or the witness is not favorable to the attorney's case) is to object that the drawing is not to scale, the witness has no training or qualifications in making the drawing or sketch, and/or that the sketch is for illustrative purposes only. 

I don't know if these usual and customary objections help, hurt or even address the real issue which is the potential use of the sketch at trial as evidence, demonstrative or otherwise.

Let us not forget that a deposition is an "examination" (be it direct or cross) in which the usual formula is questions followed by answers (usually audible).  The case law supports an attorney to introduce drawings or exhibits or witnesses with the appropriate foundations etc. being laid, and I am not addressing the wisdom or mechanics of that approach.  But, I do question cross-examination by drawings.

If the attorney wants a drawing or sketch, then hire their own expert, drawer, artist, etc and ask questions about that piece of artwork (just as if it were a picture or other properly authenticated piece of evidence).  But, it is too much to expect my client to be their artist to produce a rendition that is obviously not to scale and often poorly done is an invitation to admissions, declarations against interest, and then using my client's own inartfully drawn drawing against them by blowing it up on the projector in court!  This should not happen.  The civil rule for a deposition talks about an examination; let's keep it at that (unless there is no objection).

Now, this of course raises some collateral concerns. 

Does "for illustrative purposes only" imply an agreement that it is just to help all to understand at the deposition or to help the jury too as demonstrative evidence?

Does "not to scale" destroy the authentication, completely or partially?  For example, can the drawing nonetheless be used to show the direction of the vehicles, the approximate location of an impact in one lane or the other, the pedestrian was on the sidewalk when hit????

Does a notepad drawing by the attorney permit subsequent cross examination of the attorney on his artistic background?  (Just kidding on this one.)

Rules: peremptory challenge to strike a member of a racial minority from the jury panel

In light of a couple of recent Kentucky decisions on the issue, David Kramer has prepared prepared a supplemental comment as follows under CR 47.03 for the 2009 pocket part (due out in May) of the West Civil Practice Series Vol. 7 about use of a peremptory challenge to strike a member of a racial minority from the jury panel.

CR 47

CR 47.03, p. 195 (main volume), Author’s Comment 4, “Peremptory Challenges Made on Racial Basis,” add commentary:

The determination whether the use of a peremptory challenge against a member of a racial minority in a civil or criminal case violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution involves a three-step process.(1)   First, the party opposing the strike must make a prima facie showing that the opposing attorney has exercised a peremptory challenge based on race.  Second, if such a prima facie showing has been made, the burden shifts to the party making the strike to articulate a racially neutral explanation for striking the juror in question.  The trial court must determine whether the party who struck the juror in question had a good-faith belief in the information it relied on as the basis for the peremptory challenge, and whether the party has articulated the reason in a race-neutral manner.(2)   Self-serving explanations based on intuition or mere disclaimers of discriminatory motive are insufficient for this purpose.(3)   Third, the trial court must determine whether the party opposing the strike has carried the burden of proving purposeful discrimination by evaluating the evidence of racial motivation in light of the proffered race-neutral explanation.(4)   An evaluation of counsel’s state of mind and credibility in articulating the reason(s) for the peremptory challenge lies “peculiarly within a trial judge's province.”(5)   The trial court’s ruling on a Batson objection on racial grounds to a peremptory challenge will not be disturbed unless clearly erroneous.(6)

-------------------

  1. Batson v. Kentucky, 476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991); Fugett v. Comm., 250 S.W.3d 604 (Ky. 2008).
  2. Chatman v. Comm., 241 S.W.3d 799 (Ky. 2007); Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992).
  3. ugett v. Comm., 250 S.W.3d 604 (Ky. 2008).
  4. Batson v. Kentucky, 476 U.S. at  98.  See also McPherson v. Commonwealth, 171 S.W.3d 1 (Ky. 2005).
  5. Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992), quoting Hernandez v. New York, 500 U.S. 352 (1991).
  6. Washington v. Commonwealth, 34 S.W.3d 376, 380 (Ky. 2000).

"Reprinted from the forthcoming supplement to Rules of Civil Procedure Annotated, 6th ed (Vols. 6 & 7, Kentucky Practice Series), by the late Kurt A. Philips, David V. Kramer and Todd V. McMurtry, with permission.  Copyright (c) 2009 Thomson Reuters.  For more information about this publication please visit http://west.thomson.com/productdetail/130503/11774808/productdetail.aspx."

CIVIL RULES: Kentucky Rules of Civil Procedure Amended Effective Apr. 1, 2009

Recent changes to the Kentucky Rules of Civil Procedure are to take effect on April 1, 2009.  Thanks to David Kramer, here is a short summary of the changes and a link to SCOKY Orders.

Attached  is an  Order of the Kentucky Supreme Court amending the Kentucky Rules of Civil Procedure effective 4/1/09.  The amendments include the following:

2009-1 ORDER AMENDING
RULES OF CIVIL AND CRIMINAL PROCEDURE (ORDER CORRECTING)

1. New CR 7.03 prohibiting the filing of documents with the court clerk containing unredacted personal data and financial information (including SSN or TIN, DOB (except in criminal cases), and financial account numbers).

2. Various amendments to CR 45 governing subpoenas, including:

    - requiring the issuing attorney to include his/her name, address, phone number, and email on the subpoena (CR 45.01(1));

    - permitting issuance of a subpoena solely for production or inspection of documents without testimony (CR 45.01(1)); in this event, notice, with certification of service on the subpoena itself, must still be given to all other parties and to any person whose information is being requested (CR 45.01(1));

    - permitting a person served with a subpoena for production or inspection of documents only (i.e., without a notice of deposition) to elect not to appear in person but rather produce the subpoenaed documents or things to the issuing attorney (CR 45.04(3)), who must then "forthwith" furnish copies to all other parties (CR 45.03(2));
    - requiring proof of service to be filed with the court, consisting of the server's statement showing the date and manner of service and name of the person served (CR 45.03(1)).

    A new subpoena form is attached to the Order.

3. Amendments to CR 73.02 clarifying time computation for filing of a notice of appeal when certain post-judgment motions are filed.

David V. Kramer
Dressman Benzinger LaVelle PSC
207 Thomas More Parkway
Crestview Hills, KY 41017

CIVIL RULE AMENDMENTS: New Rule to Protect Privacy in Pleadings and other Court Filings of Documents

Civil Rule 7.03 is new, new, new.

In a nutshell:

• Attorney shall redact SSN, DOB, TIN, financial account number in civil matters (DOB ok in criminal pleadings) from those documents FILED WITH THE COURT.
• Attorney is the custodian of the original.
• Court may order unredacted filed under seal.
• Not the clerk's responsibility to review the filings for compliance.  Responsibility vests with counsel and party filing documents.
• Failure to comply will subject attorney to sanctions and relevant portions stricken.

Implications:

• Redacting these items from the pleadings and other prepared discovery should be straightforward.  However, I have been simply not providing SSN and DOB in the discovery responses and sending that under separate cover.  Now it looks like two documents one redacted and one not.  TIN and other financial information arises frequently in divorce and business litigation.
• The rule includes "certain personal data identifiers" and then lists specifics.  What about residences, former residences, children's names, health care providers, employers' names, etc.???  Is the "including" all inclusive or by way of example?
• What about the interrogatory asking about other civil or criminal matters which may contain personal indentifiers filed before the civil rule change?
• What about the requests for documents such as medical records, personnel records, employment records, insurance policies, etc.? Sounds like the easiest solution is not to produce for filing with the court but simply make them available for inspection or copying and sent by separate cover (copies or digital format).
• These questions only scratch the surface of the ramifications of this rule which must also be read together with the subpoena changes since many records from physicians and employers and financial institutions require personal identifiers.  I will have to reread the rules regarding the filing of subpoenas and see what the risks are on these documents to avoid inadvertant filing by the sheriff of any unredeacted documents.

Make  your comments on these changes and how to avoid problems.

COA CASES: "Mistrial is Improper Vehicle for Correcting Jury Verdict"

From Ed Brutscher's Kentucky Tort and Insurance Law Journal - "Mistrial is Improper Vehicle for Correcting Jury Verdict" digesting and analyzing recent COA decision.