NOT TO BE PUBLISHED

MEMORANDUM OPINION OF THE COURT

On December 26, 2008, William Gerald Watson, a real party in interest, was injured in a single car accident while riding as a passenger in a car driven by Joseph Taylor. The two had been drinking that evening prior to the time of the accident. Watson filed suit in McCracken Circuit Court under Kentucky's Dram Shop Statute (KRS 413.241). The suit was filed against Appellant, Ohio Valley Bistros, Inc., d/b/a T.G.I. Friday's, and other establishments that had allegedly served Taylor alcohol that evening.

On July 20, 2011, Watson filed supplemental interrogatories and requests for additional documents. Ohio Valley Bistros objected and did not produce the requested documents. As a result, on September 23, 2011, Watson filed a motion to compel the production of all employee files and managers' logs for 2008 and 2009; video recordings from a time period in 2011; certain customer information for individuals present at T.G.I. Friday's in Paducah on the night of the accident; information regarding past corporate policies and procedures utilized by Ohio Valley Bistros; and certain financial information. The trial court granted Watson's motion to compel in its entirety. Appellant then filed this petition for a writ of prohibition to prevent the trial court from enforcing the discovery order. The Court of Appeals denied the petition, finding that Ohio Valley Bistros would have an adequate remedy on appeal, and that no irreparable injury was demonstrated. For the reasons stated below, we affirm.

Writs of prohibition are "extraordinary remedies] and we have always been cautious and conservative both in entertaining petitions for and in granting such relief." Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). The standard for issuance of a writ of prohibition is well established:

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).

Further, under the certain special cases exception, the requirement that the petitioner show irreparable harm may be waived where "a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration." Bender at 801 (emphasis in original).

Ohio Valley Bistros argues that it should not be compelled to produce its financial information because that information is irrelevant and disclosing it will shift the focus of the litigation, distract from the central issue, and violate its due process rights. Appellant urges us to issue a writ under the second class, or in the alternative, under the certain special cases exception per Bender. We decline to issue a writ under either justification, however, because we find that the trial court is not acting erroneously or, if acting erroneously, there is an adequate remedy on appeal and there is no irreparable harm.

Ohio Valley Bistros asserts that the only arguable relevance of its financial condition to this case is with respect to the issue of punitive damages; and it is uncertain, under recent case law, whether punitive damages are recoverable under KRS 413.241. More specifically, Ohio Valley Bistros points to an alleged "decisional conflict" between Jackson v. Tullar, 285 S.W.3d 290 (Ky. App. 2007) and Taylor v. King, 345 S.W.3d 237 (Ky. App. 2010).

The Court of Appeals, in Jackson, found that KRS 413.241(1) expressly denied the recovery of punitive damages. The court, in Taylor, did not dispute the holding in Jackson, but found the statute's prohibition on the recovery of punitive damages to be unconstitutional. The Jackson court did not comment on the constitutionality of the statute, as that issue was not before it. We have never addressed the holdings in either Jackson or Taylor and how they might conflict.

In this case, the trial court granted Watson's motion to compel, pursuant to CR 26.02(1), which states:

It is possible that the issue of punitive damages will arise at trial. One factor for the jury to consider in awarding punitive damages is the profitability of the defendant's misconduct. KRS 411.186(2)(c). Ohio Valley Bistros' financial information might be relevant to this fact. Whether to grant or deny a writ is within the discretion of the lower court. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). Since the law is currently unsettled as to the availability of punitive damages in this case, we cannot say that the trial court either acted erroneously or abused its discretion.

Even if erroneous, we do not find that Ohio Valley Bistros would lack an adequate remedy at law or that irreparable injury would occur. Those issues discussed herein could be fully briefed and argued on appeal in the event of an award.

For all of the foregoing reasons, the opinion of the Court of Appeals is hereby affirmed.

Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., concur. Schroder, J., not sitting.