Kenton County judge cites sewer district, slams lawyers in open records case

Northern Kentucky's Sanitation District #1 "repeatedly and willfully" violated the state's open records act in a dispute with an Independence construction company over sewage overflows, a Kenton County Circuit Court judge has ruled.

But Judge Martin Sheehan also slammed the Coppage Construction Company's lawyers for piling up an "obscene" amount of billable hours in the case, awarding $25,000 in lawyers' fees and $13,133.78 in costs, instead of the $185,000 they had claimed.

In a colorful ruling against the sanitation district, Sheehan railed against the district's conduct, which he said "falls woefully short of the standards demanded by the Open Records Act," then slammed the construction company's lawyers as "a gaggle of gluttons at an all-you-can-eat buffet."

"More than an estimated $300,000 has been expended in what amounts to little more than a discovery dispute," he wrote. "That's obscene! One could wonder if the best interests of the clients have been lost in the fog of a battle of wills, ego and legal one-upmanship."

The dispute involves a long-running civil lawsuit between the two entities, in which Coppage filed requests for thousands of emails from the sanitation district, which provides sewage service for most of Northern Kentucky. The district delayed complying with the request for some two years, using what the judge called a "shotgun approach, asserting any and all explanations for its conduct which it could conjure up."

"Upon analysis of the totality of the circumstances, including but not limited to inadequate searches, inordinate delays, implausible explanations, insufficient and incomplete production of records, and possible illegal record destruction, there is but one conclusion that can be reached," Sheehan wrote in his opinion. "(The district) repeatedly and willfully violated the Open Records Act."

On considering the question of legal costs, which the act says may be awarded in cases of willful violation, though, Sheehan said the request by Coppage for $185,000 "fails the reasonableness test."

"Quite simply the request shocks the conscience and is excessive and overreaching in many respects," the judge wrote.

In his ruling, Sheehan laments that "as a result of the conduct of many attorneys practicing before this court during its 17 years on the bench, this Court finds itself, with increasing frequency, bemusing and bemoaning the declining civility of our chosen profession. Scorched-earth litigation tactics now reign supreme ... the corrosive effect of such poison is painfully evident in the current dispute. Over $300,000 expended bickering over discovery - incredible! Ludicrous! Obscene!"

For a full text of the opinion, go to www.uky.edu/comminfostudies/irjci/KentonCountyRecords.pdf.