KAILAN FLYNN AND MICHAEL COX PETITIONERS v. ARTHUR PATRICK ST GEORGE ARCHIE REAL PARTY IN INTEREST (2026)

OPINION AND ORDER GRANTING PETITION FOR WRIT OF PROHIBITION

Kailan Flynn (“Flynn”) and her attorney, Michael J. Cox (“Attorney Cox”), are the Petitioners in this original action. Arthur Patrick St. George (“St. George”) is the Real Party in Interest. The Respondent is the Honorable Lucy Anne VanMeter, a judge in the Fayette Circuit Court (“Respondent Judge”). St. George filed a response to the petition. The Respondent Judge elected not to do so.¹

Petitioners filed this original action following the Respondent Judge's November 13, 2025 order granting St. George's motion to compel the deposition of Attorney Cox in the underlying tort action. Petitioners request this Court to enter an order requiring the Respondent Judge to vacate the order compelling Attorney Cox's deposition.

For the reasons set forth below, we grant the petition. The circuit court erred when it found the information would be crucial to St. George's case. While the information sought might have some marginal relevance, the record does not indicate that the information is “crucial” to the underlying litigation as that term has been applied by Kentucky appellate courts. Because compelling the deposition of Attorney Cox would result in irreparable harm and constitutes a substantial miscarriage of justice, issuance of a writ of prohibition is appropriate.

I. Factual and Procedural Background

Flynn alleges that while she was working as a server and bartender at the Lexington Country Club (“LCC”) in June 2023, St. George, a club member and local bloodstock agent, approached her from behind while she was standing at a point-of-sale terminal and, without her knowledge or consent, physically restrained her and engaged in unwanted sexual contact. According to the complaint, St. George placed his arm around Flynn, pulled her into his body, pressed his face against her neck, and then reached inside the back of her pants with his hand.

Flynn filed her complaint on May 30, 2024, asserting claims for negligence, assault and battery, false imprisonment, outrage, and punitive damages. On June 4, 2024, four days after the complaint was filed, the Lexington Herald-Leader (“LHL”) published an article by reporter Valerie Honeycutt Spears entitled “Lexington Country Club server files lawsuit against member alleging inappropriate conduct.” The factual allegations described in the article tracked the allegations contained in the publicly-filed complaint. The article also included statements from Attorney Cox and St. George's counsel, Honorable Thomas Bullock.²

As discovery proceeded, Flynn indicated in her deposition testimony and, to a lesser extent, in her therapy records, that the LHL article caused her additional stress and anxiety beyond that associated with the alleged incident involving St. George. She explained that publication of the article caused her to relive the incident and led to feelings of embarrassment and humiliation, particularly because she continued working at LCC and interacted daily with coworkers and members who were aware of the allegations and were discussing them amongst themselves.

During her deposition, Flynn testified that she did not know who contacted LHL regarding the lawsuit. When asked whether she authorized her attorney to speak with LHL, Attorney Cox objected and instructed Flynn not to answer, asserting attorney–client privilege. After her deposition concluded, St. George filed a motion to compel Flynn to submit to a second deposition so that he could further question her about the LHL article, specifically whether she had authorized any communications with LHL. St. George argued, in part, that if Flynn or Attorney Cox initiated contact with LHL, Flynn could not recover damages arising from publication of the article, and that any related communications were not privileged under Kentucky Rule of Evidence (“KRE”) 503. The trial court agreed and ordered Flynn to submit to a second deposition.

Flynn appeared for her second deposition with an outline that she acknowledged was prepared by Attorney Cox, and that she had no role in drafting. The outline identified questions Attorney Cox anticipated would be asked and set forth how Flynn was to respond. As relevant here, the outline directed Flynn to testify that she had no communications with LHL, did not know why the article was published, did not authorize any communications with LHL prior to publication, and that any communications with her attorney concerning the article after publication were privileged.³

Flynn testified consistently with the outline. Based on that testimony, St. George asserted that Attorney Cox, rather than Flynn, had communicated with LHL without Flynn's authorization and argued that some portion of Flynn's claimed damages may have resulted from Attorney Cox's actions rather than from the alleged conduct underlying the lawsuit, i.e., St. George's alleged assault on her.⁴

St. George then filed a motion to compel the deposition of Attorney Cox. Following a hearing at which Attorney Cox declined to answer the circuit court's questions concerning whether he notified, or caused LHL to be notified, of the lawsuit, the trial court entered an order on October 16, 2025, addressing the motion. The court ruled, in relevant part:

With respect to the Motion to Compel of [Attorney] Cox, the Court finds that whether or not [Attorney] Cox notified the [LHL], or caused the [LHL] to be notified, about the pending lawsuit is relevant, not privileged, and crucial to the defense of this matter given [Flynn's] claim of damages resulting from the publication of the article. [Attorney] Cox refuses to answer the Court's question regarding whether or not he notified or caused the [LHL] to be notified about the filing of the lawsuit. Still, the Court concludes that [St. George] must establish that no other means exist to obtain the information and that [St. George's] counsel must attempt to speak with or depose the [LHL] reporter regarding this issue. After such time, [St. George] may re-notice his motion with respect to the deposition of [Attorney] Cox.

Fayette Cir. Ct. Order entered Oct. 16, 2025, at 1.

St. George's counsel thereafter attempted to obtain the information from LHL. Counsel contacted Valerie Honeycutt Spears, the reporter who authored the article, but she did not respond. Counsel for LHL later communicated with St. George's counsel by email, stating that the newspaper would not disclose any information regarding its sources and asserting that such information was protected under KRS ⁵ 421.100, commonly known as the “reporter's privilege.”⁶ Following those efforts, St. George renewed his motion to compel the deposition of Attorney Cox.

After a second hearing, the circuit court entered an order on November 13, 2025, granting St. George's renewed motion to compel Attorney Cox's deposition. The court ruled, in relevant part:

The Court finds that whether or not [Attorney] Cox notified the [LHL], or caused the [LHL] to be notified, about the pending lawsuit is relevant, not privileged, and crucial to the defense of this matter given [Flynn's] claim of damages resulting from the publication of the article. [Attorney] Cox has refused to answer the Court's question regarding whether or not he notified or caused the [LHL] to be notified about the filing of the lawsuit, and the [LHL] has invoked the reporter's privilege. Accordingly, [St. George] has established that no other means exist to obtain the information. See McMurry v. Eckert, 833 S.W.2d 828 (Ky. 1992).

Fayette Cir. Ct. Order entered Nov. 13, 2025, at 1.

Following entry of the November 13, 2025 order, Flynn and Attorney Cox filed this original action on December 3, 2025. They argue that the circuit court erred by compelling Attorney Cox's deposition and that requiring counsel to testify will cause irreparable harm. St. George responds that the circuit court correctly determined the information is not privileged, is directly relevant to his defense, and that no alternative means exist to obtain it.

II. Standards for Issuance of a Writ

A writ of prohibition is an extraordinary remedy, and Kentucky courts have long exercised caution and restraint both in entertaining petitions for such relief and in granting them. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky. 2004) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961)). Such writs bypass the normal appellate process and require significant interference with the lower court's administration of justice. Cox v. Braden, 266 S.W.3d 792, 795 (Ky. 2008). Accordingly, appellate courts apply a strict standard when reviewing petitions for writs of prohibition. Id. at 796.

A writ of prohibition may issue in two narrow circumstances: (1) when a lower court is proceeding, or is about to proceed, outside its jurisdiction; or (2) when a lower court is acting, or is about to act, erroneously within its jurisdiction, and there exists no adequate remedy by appeal or otherwise, and great injustice and irreparable injury will result if the writ is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

This case falls within the second class of writs. Our jurisprudence recognizes a limited subcategory within that class—“certain special cases”—in which a writ may issue even in the absence of a showing of specific great and irreparable injury, provided that a substantial miscarriage of justice will result if the lower court proceeds erroneously and that correction of the error is necessary in the interest of orderly judicial administration. Bender, 343 S.W.2d at 801. These cases are rare and typically involve circumstances where the action for which the writ is sought would violate the law, such as by breaching a tightly guarded privilege or contravening the requirements of a civil rule. Grange, 151 S.W.3d at 808. Even in such special cases, however, a writ will not issue if an adequate remedy by appeal exists. Id.

Because this case involves a writ of the second class, one in which the circuit court is alleged to have acted erroneously while acting within its jurisdiction, we will first consider whether the circuit court committed legal error. Hoskins, 150 S.W.3d at 10. If in fact a legal error occurred, its nature will help us determine whether the other grounds for a writ of the second class are met in this case.

III. Analysis

Discovery in civil cases is governed by CR ⁷ 26.02(1), which permits parties to obtain discovery regarding any non-privileged matter that is relevant to the subject matter of the pending action, regardless of whether the information sought would be admissible at trial, so long as it appears reasonably calculated to lead to the discovery of admissible evidence. Accordingly, the threshold inquiries are whether the information sought from Attorney Cox is privileged and, if not, whether it is relevant and properly discoverable.

Petitioners argue that the information sought from Attorney Cox is protected by the reporter's privilege set forth in KRS 421.100. We disagree. KRS 421.100 protects persons “engaged in, connected with, or employed by” a newspaper, radio station, or television station from being compelled to disclose the source of information obtained for publication. The statute is designed to safeguard the news-gathering process by protecting the relationship between journalists and their sources. It does not, however, cloak third-party sources themselves with immunity from discovery. Kentucky courts have long recognized this limitation. As our Supreme Court explained, the statute “grants a privilege against revealing the source of a reporter's information but does not protect the information itself.” Branzburg v. Meigs, 503 S.W.2d 748, 749 (Ky. 1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972).

Attorney Cox is not a journalist, nor was he acting in a journalistic capacity. His asserted “associations” with members of the media do not bring him within the statute's protection, at least not in this case. The phrase “connected with” has not been interpreted by any Kentucky appellate court; however, other states with similar statutes have interpreted the phrase to encompass individuals who participate in news-gathering and reporting functions such as freelancers, stringers, photographers, or others who provide journalistic content, even if they are not formally employed by a news organization. See, e.g., 23A Kenneth W. Graham & Ann Murphy, Fed. Prac. & Proc. Evid. § 5426 (1st ed. 2025). This is a logical interpretation and consistent with the purpose of the statute, which is to provide protection to those responsible for gathering and reporting the news.

In this case, Attorney Cox is alleged to be the source of the information, not the person who gathered or compiled the information for the purpose of assisting in developing a story. This is a significant distinction. Accordingly, KRS 421.100 does not shield Attorney Cox from discovery. To hold otherwise would impermissibly expand the statute beyond its purpose and text.

Nor is the information sought protected by attorney–client privilege or the work-product doctrine. The attorney–client privilege protects confidential communications between attorney and client made for the purpose of obtaining or providing legal advice. Lexington Public Library v. Clark, 90 S.W.3d 53, 60 (Ky. 2002). As the Kentucky Supreme Court has explained:

“Despite the historic and modern sanctity of the attorney–client privilege, not all communications between an attorney and a client are privileged, and the burden is on the party claiming the privilege to prove that it exists as to the communications so claimed.” [The] St. Luke Hospitals [v. Kopowski,] 160 S.W.3d [771] at 775 [(Ky. 2005)] (citing Haney v. Yates, 40 S.W.3d 352, 355 (Ky. 2001), and Sisters of Charity Health Sys. v. Raikes, 984 S.W.2d 464, 469 (Ky. 1998)). The attorney–client privilege attaches to a confidential communication “made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in [KRE 503]: the client, the client's representatives, the lawyer, or the lawyer's representatives.” St. Luke Hospitals, 160 S.W.3d at 776 (citing Haney, 40 S.W.3d at 355, and Lexington Public Library v. Clark, 90 S.W.3d 53, 59 (Ky. 2002)). Furthermore, KRE 503(a)(5) states that “[a] communication is ‘confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.”

Univ. of Louisville v. Eckerle, 580 S.W.3d 546, 552 (Ky. 2019).

The record reflects that Flynn and Attorney Cox did not discuss the newspaper article or any media contact until after publication. Any communication between Attorney Cox and LHL, if it occurred, would have occurred before the publication of the article and would have been a communication with a third party. In this context, such communication would not constitute a privileged attorney–client communication. Collins v. Braden, 384 S.W.3d 154, 159 (Ky. 2012).

Likewise, the act of providing publicly-filed pleadings or information about a lawsuit to the media does not constitute attorney-work product. Not everything connected with litigation is privileged. State Farm Mut. Auto. Ins. Co. v. Edwards, 670 S.W.3d 873, 883 (Ky. 2023).

Although the information sought from Attorney Cox is not protected by privilege, that conclusion does not end the inquiry. Kentucky courts have long recognized that compelling the deposition of opposing counsel is an extraordinary measure that poses a substantial risk to the orderly administration of justice. McMurry, 833 S.W.2d at 830–31. Even in the absence of privilege, such discovery threatens the attorney–client relationship, risks counsel's disqualification, and may improperly convert an advocate into a witness. Id. For these reasons, Kentucky law imposes a stringent standard before permitting the deposition of opposing counsel. Id.

In McMurry, the Kentucky Supreme Court adopted the test articulated by the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), and held that opposing counsel may be deposed only upon a showing that: (1) no other means exist to obtain the information; (2) the information sought is relevant and not privileged; and (3) the information is crucial to the preparation of the case. McMurry, 833 S.W.2d at 830 (emphasis added).

In adopting this test, the Court emphasized that “[i]n some rare or extraordinary circumstance, the deposition of counsel for a party might be necessary, but the potential for harm to the administration of justice is too great to permit such a practice routinely.” Id. at 830–31. This standard “presents a high bar.” Hamilton v. P.B. Stratton Fam. P'ship, LLC, 709 S.W.3d 287, 313 (Ky. App. 2024).

The burden imposed by McMurry is intentionally demanding. Even where opposing counsel may possess relevant information, discovery is not permitted unless the information is not only relevant but crucial to the case, and unless no practical alternative means exist to obtain it. Speculation, conjecture, or the mere possibility that counsel may have useful information is insufficient to justify the extraordinary step of compelling counsel's testimony. Id.

Before the circuit court, St. George relied heavily on 3M Co. v. Engle, 328 S.W.3d 184 (Ky. 2010), but that case underscores, rather than undermines, the high bar imposed by McMurry. In 3M, the plaintiffs affirmatively asserted that their causes of action did not accrue until their attorney informed them of a causal connection between their respirators and coal workers’ pneumoconiosis. As a result of that assertion, “the nature and timing of the Plaintiffs’ communications with their attorney ․ [became] not only relevant, but in fact critical to the case,”⁸ because those communications were determinative of whether the claims were time-barred. Id. at 189 (emphasis added). There was no dispute that counsel possessed the information sought, and the information resolved a threshold issue essential to the litigation.

To be clear, under McMurry and 3M, the inquiry is not simply whether the information is relevant in the sense of CR 26.02, but whether it is critical to the preparation of the case. Relevant and helpful are not the same as critical. If relevance equated to cruciality, attorneys would be routinely deposed, something our Supreme Court has cautioned against.

Unlike 3M, the information sought here is not determinative of a threshold issue and will not resolve a dispositive legal question. At most, the information might be helpful to St. George, but it cannot fairly be said to be critical to the case in the manner required by McMurry or in the way the information at issue was critical in 3M.

Even assuming that Attorney Cox is among the few individuals who could answer whether he contacted the newspaper, the information sought lacks meaningful cruciality. Flynn's claimed emotional distress is attributed to the publication of the article, not to the act of communication between Attorney Cox and the newspaper. The article itself reported allegations contained in a publicly-filed complaint involving a well-known individual, an elite social institution, and allegations of inappropriate sexual conduct. Such matters are reasonably foreseeable subjects of media coverage, and one filing a lawsuit regarding such issues should likely expect some news coverage to follow. Once the lawsuit was filed, the risk of public attention and media reporting existed regardless of who first alerted the newspaper or whether the paper discovered the lawsuit on its own.

St. George's argument that Attorney Cox might be subject to apportionment of fault is similarly unavailing. Apportionment applies only among joint tortfeasors. Jenkins v. Best, 250 S.W.3d 680, 686 (Ky. App. 2007). St. George has not articulated any tortious conduct committed by Attorney Cox, nor explained how communicating publicly-available information could constitute such conduct.⁹ The decision to publish the article was an independent editorial judgment of the newspaper, and neither communicating about a public lawsuit nor publishing an article reporting on public filings renders a person a tortfeasor.

The public filing of Flynn's complaint placed the allegations in the public domain and provided constructive knowledge of those allegations to anyone monitoring court filings, including the media. Information contained in publicly-filed pleadings is fair game for reporting, and news organizations routinely discover such information independently. This is not a case in which an attorney is alleged to have disclosed confidential information or conveyed facts unavailable through lawful means. Where the information reported is entirely derived from public records, the manner by which a newspaper became aware of the lawsuit and the identity of any individual who may have alerted it to the filing is of little consequence. The public availability of the information renders the source of its discovery largely irrelevant.

This simply underscores the fact that the existence of the article is, in and of itself, evidence of potential damages suffered by Flynn. St. George is free to argue to the jury that he did not cause the article to be published and should not be liable for any ensuing emotional distress. And Flynn, in turn, can argue that the two are connected such that St. George is liable for the foreseeable consequences of his actions. Such arguments are commonplace in tort actions, and both can be made without Attorney Cox's deposition. Additionally, at trial, St. George remains free to question Flynn regarding her role in the article's publication, including whether she contacted the newspaper, authorized anyone to do so on her behalf, knew in advance that the article would be published, or knows who contacted the newspaper.

The error in the circuit court's analysis lies not in its conclusion that the information sought might bear some relevance, but in its conclusion that the information was critical within the meaning of McMurry and 3M. Relevance is a low threshold in discovery matters, and information may be relevant without being indispensable. McMurry, however, demands more. It requires a showing that the information sought from opposing counsel is not merely relevant or potentially helpful, but critical to the preparation of the case. Upon review of the record and the governing law, we cannot conclude that any information Attorney Cox may possess regarding contact with LHL rises to that demanding standard or is critical to St. George's defense.

Given the risk of counsel disqualification and the resulting disruption of the attorney–client relationship and the orderly administration of justice, this case falls within the narrow category of “special cases” warranting writ relief. Bender, 343 S.W.2d at 801; Grange Mut. Ins. Co., 151 S.W.3d at 808. Accordingly, the petition for a writ of prohibition is granted.

IV. Conclusion

For the foregoing reasons, the petition for writ of prohibition is GRANTED. The Respondent Judge is directed to vacate its November 13, 2025 order compelling Attorney Cox to submit to a deposition.

FOOTNOTES

1.   Pursuant to Kentucky Rule of Appellate Procedure (“RAP”) 60(D), “[t]he party against whom relief is sought ․ may ․ file a response that conforms to RAP 5 and RAP 7” (emphasis added). The use of the permissive term “may” makes clear that a response is not required, and a party's decision not to file one is not held against that party.

2.   Attorney Cox is quoted as saying: “As anyone would expect, Ms. Flynn did not choose to be put in this position and this has been painful for her. She is a hard worker who was doing her job, making a living and seeking a happy life like everyone wants. She has demonstrated a considerable amount of courage in standing up for herself—something that is hard for many victims.” Attorney Bullock is quoted as saying: “We received a copy of the complaint and intend to respond through the legal process.”

3.   For example, with regard to her testimony about LHL, the outline provided:[Flynn] has testified that she had no communications with [LHL] and doesn't know why they ran a story. She will also testify that she did not have any communications with her attorney before the story was published in the newspaper, did not review or authorize any communications beforehand, and any conversations with her attorney about the article afterward are privileged from disclosure.

4.   St. George's assertion was not grounded in any evidence in the record. Rather, it was premised on his belief that if Flynn did not contact LHL, then Attorney Cox must have done so.

5.   Kentucky Revised Statutes.

6.   This statute provides:No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.Id.

7.   Kentucky Rules of Civil Procedure.

8.   McMurry requires a showing that the information sought is “crucial” to the preparation of the case, a standard the Supreme Court later described in 3M as requiring that the information be “critical.” Although phrased differently, both cases impose the same heightened requirement.

9.   The trial court stated repeatedly from the bench that, if Attorney Cox had tipped off LHL, he did “nothing wrong.”

HON. ALLISON E. JONES JUDGE, COURT OF APPEALS