Rogers v. Ezell et al

Filing 12

OPINION & ORDER signed by Magistrate Judge Lanny King on 3/18/2019. Denying 11 Motion to Produce. cc: Counsel(KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:18-CV-00091-TBR-LLK
DANIEL W. ROGERS

PLAINTIFF

v.
BOYCE EZELL and
JOHN S. YOUNG

DEFENDANTS
OPINION AND ORDER

Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for
ruling on all discovery motions. (Docket # 8).
Defendants Boyce Ezell and John S. Young filed a Motion to Produce a complete copy of
the call for services, 911 call recording, and radio traffic, regarding the incident of June 19, 2017
concerning Christian County Sheriff Office INC No. 201700012744; Case No. 00017000492;
Incident No. 000001704865 from the Hopkinsville-Christian County Emergency
Communications Center pursuant to KRS 65.752 (3). (Docket # 11). Fully briefed, this Motion
is ripe for adjudication. For reasons detailed below, Ezell and Young’s Motion to Produce is
DENIED WITHOUT PREJUDICE.
Background
This action arises out of a collision between Plaintiff Rogers and Defendant Ezell on June
19, 2017 in Christian County, Kentucky. During the collision, Plaintiff Rogers operated a 2016
R1 Yamaha motorcycle, while Defendant Ezell operated a 2014 Polaris Sportsman all-terrain
vehicle (ATV). (Docket #1). Plaintiff Rogers brought a cause of action based on negligence,
asserting that Defendant Ezell’s operation of the ATV on a Kentucky public highway constituted
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negligence per se, and that Defendant Young’s ownership of the ATV makes him vicariously
liable for Defendant Ezell’s actions. (Id.).
At the time of the collision, Plaintiff Rogers was operating a motorcycle in a group with
four others, two of whom have been identified as Daniel DeGracia and Jonathan Monroy.
(Docket #11). The identity of the other two operators is not known. (Id.). Counsel for Plaintiff
Rogers retained Stidham Reconstruction and Investigation, LLC (“Stidham”) to conduct an
accident reconstruction. (Id.). Stidham sent an Open Records Act request to the HopkinsvilleChristian County Emergency Communication Center, (“Hopkinsville-Christian County ECC”)
the 911 service provider, seeking the contents of the emergency services call. (Id.). The
Hopkinsville-Christian County ECC advised that they could not provide all information
requested, pursuant to KRS 65.752. (Docket #11-1). Specifically, they could not provide the
recordings, identifications, or phone numbers of any callers reporting the accident. (Id.).
Analysis
Defendants ask this Court to compel production of information and documentation,
including the statements during the emergency services call. (Docket #11). They allege that this
information is subject to production pursuant to KRS 65.752(3). (Id.). Further, they allege that
this information is vital to the identification of witnesses and discovery processes in this case.
(Id.).
However, KRS 65.752(3) only requires retention of certain information, and it does not
have a production provision:
In areas where fully enhanced 911 service has been implemented, the service supplier
shall maintain the confidentiality and privacy of all information contained in the
ALI/DBS including any information that identifies telephone calls made from extension
on DPTS, except when the release of the information is ordered by a court of competent
jurisdiction.
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KRS 65.752.
Therefore, the only statutory authority presented by the Defendants for their motion is the
Kentucky Open Records Act. The Open Records Act was adopted in 1976 with a preamble
stating that “access to information concerning the conduct of the peoples’ business is a
fundamental and necessary right of every citizen in the Commonwealth of Kentucky.” Util.
Mgmt. Grp., LLC v. Pike Cty. Fiscal Court, 531 S.W.3d 3, 7-8 (Ky. 2017) (quoting 1976 Ky.
Acts Chapter 273). The Act applies to any entity qualifying as a “public agency” under KRS
61.870(1) including state or local government officials, departments, commissions, boards and
special district boards. Id. at 8. The parties do not dispute that the ECC is a “public agency”
subject to the Act.
KRS 61.872(1) provides that “all public records shall be open for inspection by any
person” and KRS 61.872(2) elaborates that “any person shall have the right to inspect public
records.” Id. at 11-12. A “public record” includes “all books, papers, maps, photographs, cards,
tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form
or characteristics, which are prepared, owned, used, in the possession of or retained by a public
agency.” KRS 61.870(2). Enumerated under those exceptions in KRS 61.878(1) are “public
records or information on the disclosure of which is prohibited or restricted or otherwise made
confidential by enactment of the General Assembly.” Id.
Defendants fail to provide any case law or other authority in support of its argument that
this Court may order the Hopkinsville-Christian County ECC to produce records pursuant to a
previous open records request. First, the statute authorizes Kentucky circuit courts, not federal
district courts, to enforce actions regarding open records requests. KRS 61.882(1) provides that
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“[t]he Circuit Court of the county where the public agency has its principal place of business or
the Circuit Court of the county where the public record is maintained shall have jurisdiction to
enforce the provisions of KRS 61.870 to 61.884, by injunction or other appropriate order on
application of any person.” Defendants have provided no authority that shows that a federal
district court may require a public agency to produce public records pursuant to an open records
request. Second, the statute contemplates not only that the public agency bears the burden of
proof but, importantly in this case, that they be a party to the action. KRS 61.882(3) provides
that “In an original action or an appeal of an Attorney General's decision, where the appeal is
properly filed pursuant to KRS 61.880(5)(a), the burden of proof shall be on the public
agency…” In this case, the Hopkinsville-Christian County ECC is not a party to this action.
Furthermore, this Court has not issued a subpoena to the Hopkinsville-Christian County ECC for
the witness statements.
This Court is unaware of any authority authorizing it to require a third party to produce
documents outside of a motion to compel production pursuant to Fed.R.Civ.P. 45 after the third
party has failed to comply with a subpoena issued by this Court. To find otherwise could result
in the Court ordering a non-party to take action without the non-party having the opportunity to
object.
Conclusion
IT IS HEREBY ORDERED that Ezell and Young’s Motion to Produce (Docket # 11) is
DENIED WITHOUT PREJUDICE.

March 18, 2019
c:

Counsel
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