For the second time in recent weeks, Franklin Circuit Court Judge Phillip Shepherd has admonished the parties in MAYBERRY, et al., v.KKR & CO., L.P., et al., this time in overruling the Tier 3 Intervenors' Motion to Preserve Documents.
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Shepherd reserved his strongest criticism for the Tier 3 Intervenors whose Motion prompted the brief May 10 hearing in which no one spoke but the judge.
Shepherd began by pointing out that because he has not ruled on the Tier 3 Intervenors' Motion to Intervene, their motion to preserve documents was premature.
But it was the content of the Intervenors' Motion that drew Shepherd's harshest criticism.
Shepherd rejected the litigation strategy employed in the Intervenors' motion — which consisted almost entirely of a summary of negative news accounts about the investigator, Regina Calcaterra, hired by the Kentucky Retirement Systems in 2020 and intimated that the bid process under which she was selected was skewed in her favor. Shepherd emphasized that the important issues before the court would be resolved on the merits and not on "totally irrelevant" allegations about law firms and attorneys.
He characterized the Intervenors' compilation of news accounts as the wrong approach — noting that he had no interest in unverified allegations meant to impugn the integrity of opposing counsel — but indicating that he would consider testimony taken under oath.
Nevertheless, Shepherd seized the opportunity to remind all parties of their duty to honor their obligations to preserve evidence, reminding them of his authority to enforce these duties should they fail to do so.
The open records question that remains unanswered is whether the Kentucky Public Pension Authority will resist disclosure of the $1.2 million Calcaterra report which must be finalized and released to the Kentucky Attorney General on May 17 under a previously issued order of the court.
The open records issue is not before the Franklin Circuit Court.
Based on its response to the Tier 3 intervenors' recent motion, the KPPA intends to assert multiple exceptions and privileges in denying the public access to the report for which it paid.
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This, in our view, is the "wrong approach." It will come at further expense to the public's purse strings as well as its trust.
