SUPREME COURT OF ARIZONA
En Banc
BRADFORD D. LUND, an individual; ) Arizona Supreme Court
WILLIAM S. LUND, and SHERRY L. ) No. CV-12-0349-PR
LUND, husband and wife, )
) Court of Appeals
Petitioners, ) Division One
) No. 1 CA-SA 12-0027
v. )
) Maricopa County
THE HONORABLE ROBERT D. MYERS, ) Superior Court
JUDGE OF THE SUPERIOR COURT OF ) No. PB2009-002244
THE STATE OF ARIZONA, in and for )
the County of Maricopa, )
)
Respondent Judge, ) O P I N I O N
)
)
MICHELLE A. LUND, DIANE DISNEY )
MILLER, KRISTEN LUND OLSON, and )
KAREN LUND PAGE, )
)
Real Parties in Interest, )
)
__________________________________)
)
JENNINGS, STROUSS & SALMON, )
P.L.C., )
)
Intervenor. )
)
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Robert D. Myers, Judge
VACATED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
230 Ariz. 445, 286 P.3d 789 (App. 2012)
VACATED
________________________________________________________________
JONES, SKELTON & HOCHULI, P.L.C. Phoenix
By A. Melvin McDonald
And
SHUMWAY LAW OFFICES, P.L.C. Scottsdale
By Jeff A. Shumway
Attorneys for Bradford D. Lund
MEYER HENDRICKS, PLLC Phoenix
By Ed F. Hendricks, Jr.
Brendan A. Murphy
W. Douglas Lowden
Attorneys for William S. Lund and Sherry L. Lund
BURCH & CRACCHIOLO, P.A. Phoenix
By Daryl Manhart
Bryan F. Murphy
Jessica Conaway
Attorneys for Michelle A. Lund, Diane Disney Miller, Kristen
Lund Olson, and Karen Lund Page
JENNINGS, STROUSS & SALMON, P.L.C. Phoenix
By John J. Egbert
J. Scott Rhodes
Attorneys for Jennings, Strouss & Salmon, P.L.C.
________________________________________________________________
B R U T I N E L, Justice
¶1 We address when a trial court, in deciding issues of
privilege and waiver, may review in camera allegedly privileged
documents that were inadvertently disclosed.1 We hold that
before reviewing a particular document, a trial court must first
determine that in camera review is necessary to resolve the
privilege claim.
1
For ease of reference, we refer to all documents at issue
in this case as “privileged” even though some documents are
claimed only to be protected trial-preparation material.
2
I.
¶2 This litigation began in 2009, when relatives of
Bradford Lund (the real parties in interest in this case,
collectively, “Miller”) sought the appointment of a guardian and
conservator to manage Bradford’s assets. Bradford, his father,
and his stepmother (collectively, “the Lunds”) opposed the
appointment.
¶3 In September 2011, Miller’s counsel, Bryan Murphy of
Burch & Cracchiolo (“B&C”), served the law firm Jennings, Strouss
& Salmon (“JS&S”), which had previously represented Bradford in
petitioning for the appointment of a guardian, with a subpoena
duces tecum requesting all non-privileged information relating to
Bradford. Mistakenly believing that Murphy represented Bradford,
a JS&S attorney responded to the subpoena by delivering the
entire client file to Murphy without reviewing it for privileged
information.
¶4 Early in October, Bradford’s attorney, Jeff Shumway,
learned that JS&S had given Bradford’s file to Murphy. Shumway
told Murphy by email that he believed the file contained at least
two privileged documents that should be returned. Murphy replied
that he would wait to hear from Shumway, who responded he would
inform Murphy if further review revealed other privileged
documents. After not hearing further from Shumway for three
weeks, Murphy distributed the entire file to all other counsel in
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the case, as well as a court-appointed investigator, as part of
Miller’s second supplemental disclosure statement.
¶5 On November 14, the Lunds filed a motion to disqualify
Murphy and B&C on the ground that they had “read, kept, and
distributed” privileged materials. The next day, JS&S moved to
intervene to file a motion to compel Murphy and B&C to comply
with the rules applicable to inadvertent disclosure, Ethical Rule
4.4(b) and Arizona Rule of Civil Procedure 26.1(f)(2).
¶6 On November 16, the Lunds filed an emergency motion to
prevent Murphy from disclosing the file to the court and for an
order that it be returned to JS&S. At a November 29 hearing, the
trial court permitted Murphy to retain the file, but directed him
to not copy any documents from the file or convey them to anyone.
The court also ordered JS&S to create a privilege log, which JS&S
filed with the court on December 9. On January 9, 2012, the
court granted JS&S’s motion to intervene.
¶7 In a January 13 minute entry, the trial court
recognized its obligation to determine whether the documents were
in fact privileged and directed JS&S to file under seal a
detailed explanation of the legal basis for the privilege claim,
attached to each allegedly privileged document. Each counsel was
to receive a copy of this explanation, including the documents.
After allowing the other parties to respond, the court intended
to review the documents and counsels’ arguments before ruling on
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whether each document was privileged.
¶8 On January 19, the Lunds objected to the trial court
reviewing the documents in camera, arguing that Miller must first
provide evidence that the documents are not privileged and
requesting in the alternative that another judge conduct the
review. JS&S moved to extend the deadline for filing the
privilege explanations and documents, but the court denied the
motion and ordered JS&S to file them on January 31. The court
stated it would rule on the Lunds’ objection to any in camera
review before reviewing the documents. The Lunds then filed a
petition for special action with the court of appeals and
requested a stay of the superior court’s orders.
¶9 The court of appeals accepted jurisdiction and granted
a stay. Lund v. Myers ex rel. Cnty. of Maricopa, 230 Ariz. 445,
449 ¶ 12, 286 P.3d 789, 793 (App. 2012). The court ultimately
held that although the plain language of Rule 26.1(f)(2)
seemingly placed no limitations on the receiving party’s right to
present the inadvertently disclosed documents to the court under
seal or on the court’s ordering the disclosing party to do the
same, such a broad reading would conflict with the receiving
party’s duty under that rule to “return, sequester, or destroy”
the privileged documents and with Arizona Rule of Civil Procedure
26(g). Id. at 453 ¶¶ 25–26, 286 P.3d at 797. The court reasoned
that the receiving party did not have “an unqualified right to
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file privileged information with the court,” but could obtain in
camera review only after complying with procedural rules and
showing that (a) “specific documents are likely not privileged”
or (b) “the privilege has been waived.” Id. ¶ 27. Finally, the
court concluded that if Miller met this threshold, a judicial
officer not permanently assigned to the case should conduct the
in camera review given the “unique circumstances” of the case.
Id. at 456 ¶ 38, 286 P.3d at 800.
¶10 We granted review to clarify our rules regarding the
inadvertent disclosure of privileged information, a legal issue
of statewide importance. We have jurisdiction pursuant to
Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §
12-120.24.
II.
¶11 When a party has inadvertently disclosed privileged
information, Rule 26.1(f)(2) outlines the proper procedure for
claiming privilege and resolving any dispute.2 The party who
claims that inadvertently disclosed information is privileged
should “notify any party that received the information of the
2
Arizona Rule of Civil Procedure 45(c)(5)(C)(ii) provides
the same procedure for a person who has inadvertently produced
privileged documents in response to a subpoena. While A.R.S. §
12-2234 states that “an attorney shall not, without the consent
of his client, be examined as to any communication made by the
client to him,” the statute does not address inadvertent
document disclosure.
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claim and the basis for it.” Ariz. R. Civ. P. 26.1(f)(2). Once
the receiving party has been notified of the privilege claim,
that party “must promptly return, sequester, or destroy the
specified information . . . and may not use or disclose the
information until the claim is resolved.” Id.; accord Fed. R.
Civ. P. 26(b)(5)(B). Our rule, like its federal counterpart, “is
intended merely to place a ‘hold’ on further use or dissemination
of an inadvertently produced document that is subject to a
privilege claim until a court resolves its status or the parties
agree to an appropriate disposition.” Ariz. R. Civ. P.
26.1(f)(2) State Bar committee’s note to 2008 amend.
¶12 Ethical Rule 4.4(b) also addresses inadvertent
disclosures, providing that a “lawyer who receives a document and
knows or reasonably should know that the document was
inadvertently sent shall promptly notify the sender and preserve
the status quo for a reasonable period of time in order to permit
the sender to take protective measures.” Together, these
provisions emphasize that a receiving party has a duty to suspend
use and disclosure of the allegedly privileged documents until
the privilege claim has been resolved either through agreement or
court ruling.
¶13 The receiving party may contest the privilege claim by
asserting that the documents are not privileged or that the
disclosure has waived the privilege. To have the trial court
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resolve the privilege dispute, the receiving party should
“promptly present the information to the court under seal for a
determination of the claim.” Ariz. R. Civ. P. 26.1(f)(2). This
procedure allows the court to act as a repository for the
documents while the parties litigate the privilege claim.
¶14 Unlike the court of appeals, we do not find that a
receiving party who presents the information under seal to the
court thereby violates Rule 26.1(f)(2) by using the information
and failing to return, sequester, or destroy it. See Lund, 230
Ariz. at 453 ¶ 26, 286 P.3d at 797. The prohibition in Rule
26.1(f)(2) on the “use” of the documents does not preclude filing
the documents with the court under seal or other conduct allowed
by the rules. See Fed. R. Civ. P. 26(b)(5)(B) advisory
committee’s note to 2006 amend. (stating that the receiving
party may not use the information “pending resolution of the
privilege claim,” but that it “may present to the court” the
questions of privilege and waiver). Counsel may sequester the
documents, including filing them under seal; make good faith
efforts to resolve the issue with opposing counsel, see Ariz. R.
Civ. P. 26(g); and, if necessary, move for the court’s
resolution of the issue. Although each of these actions involve
a literal “use” of the documents, Rule 26.1(f)(2) contemplates
that the privilege claim may be “resolved” through such use.
¶15 If the allegedly privileged documents are filed under
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seal with the trial court, the court may not view the documents
until it has determined, as to each document, that in camera
review is necessary to resolve the privilege claim. Such review
may be required if the receiving party makes a factual showing to
support a reasonable, good faith belief that the document is not
privileged. Cf. United States v. Zolin, 491 U.S. 554, 572 (1989)
(requiring a threshold showing to be made before the court could
perform in camera review to determine whether the crime-fraud
exception to the privilege applies); Kline v. Kline, 221 Ariz.
564, 573 ¶ 35, 212 P.3d 902, 911 (App. 2009) (holding that a
party must present prima facie evidence to invoke the crime-fraud
exception). Any documents found to be non-privileged may be used
in the litigation and any documents determined to be privileged
must be returned to the disclosing party or destroyed.
¶16 If the receiving party does not contest the disclosing
party’s claim of privilege, the court need not determine the
privilege issue or review the undisputedly privileged documents
filed under seal. See Fed. R. Civ. P. 26(b)(5)(B) advisory
committee’s note to 2006 amend. The receiving party in this
situation must either return or destroy the documents and any
copies. Ariz. R. Civ. P. 26.1(f)(2).
¶17 With these principles in mind, we consider whether the
trial court in this case abused its discretion in its rulings
regarding the disputed documents. See State Farm Mut. Auto.
9
Ins. Co. v. Lee, 199 Ariz. 52, 57 ¶ 12, 13 P.3d 1169, 1174
(2000) (noting that discovery rulings relating to privilege are
reviewed for abuse of discretion). Here, because the Lunds’
motion to disqualify is based on Murphy’s disclosure of
allegedly privileged materials in violation of Rule 26.1(f)(2),
the trial court must determine whether the documents are indeed
privileged. To that end, the court properly ordered JS&S to
produce a privilege log and Miller and Bradford to file a
response.
¶18 The trial court, however, erred by ruling that it would
review all the documents to determine whether they are
privileged. The court should have awaited the responses to the
privilege log and considered the parties’ arguments regarding
privilege and waiver to determine whether in camera review was
warranted for particular documents before reviewing them.
¶19 If in camera review is needed, the trial judge should
consider whether another judicial officer should conduct the
review in light of the possibility that a review of privileged
materials may be so prejudicial as to require the judge’s
recusal. If the trial judge conducts an in camera review and
upholds the privilege claim, the judge should consider whether
recusal is then necessary, see Ariz. Code of Judicial Conduct
Rule 2.11, and a party who can show actual bias may, of course,
move for the judge’s removal for cause, see Ariz. R. Civ. P.
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42(f)(2); see also A.R.S. § 12-409(B).
¶20 After the trial court rules on the privilege and waiver
issues, the court shall consider the pending motion to disqualify
Murphy and B&C. Miller has not yet responded to that motion, and
we decline to comment on its merits or on the related issue
whether, by seeking disqualification, Bradford waived the
attorney-client privilege. These issues are appropriately
determined by the trial court in the first instance.
III.
¶21 For the foregoing reasons, we vacate the court of
appeals’ opinion and the trial court’s January 13, 2012 order and
remand to the trial court for proceedings consistent with this
opinion.
__________________________________
Robert M. Brutinel, Justice
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
Scott Bales, Vice Chief Justice
__________________________________
John Pelander, Justice
__________________________________
Ann A. Scott Timmer, Justice
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