UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

PIKEVILLE DIVISION

 

IN RE:

MARK D. BARTLEY CASE NO. 94-70509

DEBTOR

 

 

KEMPER NATIONAL INSURANCE COMPANIES

AND GENERAL STAR NATIONAL PLAINTIFFS

VS: ADV. NO. 95-7005

MARK D. BARTLEY, BRUCE LESLIE

AND MCBRAYER, MCGINNIS, LESLIE

& KIRKLAND DEFENDANTS

* * * * *

MARK D. BARTLEY PLAINTIFF

VS:

EUGENE HOWARD AND JOHNSTON

COCA-COLA BOTTLING GROUP, INC. DEFENDANTS

AND ADV. 95-7004

JESSIE HOWARD AND AMERICAN

MOTORISTS INSURANCE COMPANY INTERVENING PLAINTIFFS

VS:

MARK D. BARTLEY INTERVENING DEFENDANT

 

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon a dispute concerning production of documents, pursuant to a request in this proceeding by Defendants Philip Bruce Leslie and McBrayer, McGinnis, Leslie & Kirkland. By agreement, the parties have submitted the documents in question to the Court for in camera review by the Court.

The documents in question consist of copies of letters written by Philip Bruce Leslie in his capacity as attorney for Mark Bartley in the period after the trial and agreement, in principle, to settle the suit pending in the Magoffin Circuit Court. During this period, while Judgment had been rendered, the time to appeal remained open and, subsequently, a timely appeal was apparently filed in the personal injury action. The correspondence in question consists of two categories: 1) correspondence with client or his insurance company; and 2) correspondence with medical experts with respect to debtor's competency to enter into a binding settlement agreement.

Counsel for Philip Bruce Leslie and McBrayer, McGinnis, Leslie & Kirkland has asserted that the materials are privileged and fall within the scope of the attorney-client privilege, attorney work product rule, or are otherwise irrelevant to the present proceedings.

Clearly, the correspondence with the debtor and debtor's insurance company is a privileged communication pursuant to the attorney-client privilege. With respect to the communications with medical experts regarding competency, and assuming, arguendo, the relevancy of the documents, it appears that these documents likewise are privileged communications since they were prepared by Bartley's attorney for his medical expert. Toledo Edison Company, et al v. G A Technologies, Inc., et al, 847 F.2d 335 (6th Cir. 1988). Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich., 1995).

Based upon the foregoing, it is hereby

ORDERED AND ADJUDGED that the aforegoing correspondence is not discoverable in the within proceeding and Philip Bruce Leslie and McBrayer, McGinnis, Leslie & Kirkland may withhold the aforesaid correspondence from disclosure.

Dated this _____ day of ______________, 1995.

 

BY THE COURT

 

________________________________

JUDGE

 

COPIES TO:

W. Thomas Bunch, Esq.

Gillard B. Johnson III, Esq.

Daniel A. Simons, Esq.

Ronald G. Polly, Esq.

Thomas K. Herron, Esq.

E. David Marshall, Esq.

Catherine R. Meng, Esq.

Eugene C. Rice, Esq.

Michael J. Schmitt, Esq.

U.S. Trustee

jbart.dop