286 P.3d 789
Ariz. Ct. App.2012Background
- Lunds filed a special action to stop an in camera review of inadvertently disclosed documents claimed as privileged, and argued the review, if any, must not be by the trial judge who will decide the merits.
- A subpoena duces tecum sought nonprivileged Bradford-related documents; JS & S produced 239 pages as a full file copy, creating potential privilege issues.
- Flood believed he reviewed the file improperly due to misidentification of parties; after learning of possible privilege, he disclosed the entire file to others.
- Shumway alerted Murphy that some materials might be attorney-client privileged and sought to recover privileged documents; Murphy disclosed the full file three weeks later.
- Lunds moved to disqualify Burch & Cracchiolo; Murphy sought to file privileged materials under seal for in camera review; court ordered detailed privilege explanations.
- Miller argued most documents were privileged; the court considered whether in camera review was proper and who should conduct it, given the trier-of-fact role of the assigned judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether disclosure was a waiver of privilege | Lunds contend no waiver occurred. | Miller argues waiver due to disclosure and lack of steps to prevent it. | No waiver under Rule 502(b); inadvertent disclosure and remedial steps were insufficient for waiver. |
| Whether in camera review is appropriate at all | Lunds say threshold showing is needed before in camera review. | Miller argues the judge cannot determine privilege without reviewing the documents. | In camera review requires a threshold showing; cannot be solely based on bare claim of privilege. |
| Who should conduct in camera review if warranted | Lunds prefer a judge other than the trier of fact. | Miller does not dispute appointing the same judge. | The review should be performed by a different judicial officer (e.g., the special master) to avoid tainting the trier of fact. |
| What standard governs the threshold for in camera review | Lunds seek a stricter, evidence-based threshold to trigger in camera review. | Miller seeks to permit in camera review based on the privilege claim itself. | Threshold must be guided by Zolin: require reasonable belief that review may yield evidence establishing non-privilege or waiver, with supporting information beyond counsel’s filings. |
Key Cases Cited
- In re Zolin (Crime-Fraud Exception to the Attorney-Client Privilege), 491 U.S. 554 (Supreme Court 1989) (threshold showing required for in camera review; crime-fraud exception context)
- In re Grand Jury Investigation, 974 F.2d 1068 (9th Cir. 1992) (two-stage approach to in camera review when contesting privilege)
- State v. Madera, 112 P.3d 688 (Colo. 2005) (reluctance to disclose attorney files; factors for in camera review; exhaustion of alternatives)
- Samaritan Found. v. Goodfarb, 176 Ariz. 497 (Ariz. 1993) (purpose and limits of privileged information; context for privilege protection)
- State ex rel. Babbitt v. Arnold, 26 Ariz. App. 333 (Ariz. App. 1976) (prematurity of reviewing disclosed documents without determining privilege)
- Devenir Assocs. v. City of Phoenix, 169 Ariz. 500 (Ariz. 1991) (interpretation of rules in light of related rules; avoid conflicts)
- Green v. Nygaard, 213 Ariz. 460 (Ariz. 2006) (abuse of discretion in discretionary decisions and legal error standard)