Lund v. Myers
| Decision Date | 06 September 2012 |
| Docket Number | No. 1 CA–SA 12–0027.,1 CA–SA 12–0027. |
| Court | Arizona Court of Appeals |
| Parties | Bradford D. LUND, an individual; William S. Lund, and Sherry L. Lund, husband and wife, Petitioners, v. The Honorable Robert D. MYERS, Judge of the Superior Court of the State of Arizona, in and for the COUNTY OF MARICOPA, Respondent Judge, Michelle A. Lund, Diane Disney Miller, Kristen Lund Olson, and Karen Lund Page, Real Parties in Interest, Jennings Strouss & Salmon, P.L.C., Intervenor. |
OPINION TEXT STARTS HERE
Shumway Law Offices, LLC By Jeff A. Shumway and Jones, Skelton & Hochuli, P.L.C. By A. Melvin McDonald, Co–Counsel for Petitioner Bradford D. Lund.
Meyer Hendricks, PLLC By Ed Hendricks, Jr., Brendan A. Murphy, and W. Douglas Lowden, Phoenix, Attorneys for Petitioner William and Sherry Lund.
Burch & Cracchiolo, P.A. By Bryan F. Murphy, Daryl Manhart and Jessica Conaway, Phoenix, Attorneys for Real Parties in Interest Michelle Lund Diane Disney Miller, Kristen Lund Olson, and Karen Lund Page.
Jennings Strouss & Salmon, P.L.C. By John J. Egbert and J. Scott Rhodes, Phoenix, Attorneys for Intervenor.
¶ 1 Bradford D. Lund, and William and Sherry Lund (individually “Bradford,” “William,” and “Sherry”; collectively “the Lunds”), filed this special action seeking to prevent the superior court from conducting an in camera inspection of inadvertently disclosed documents, which they claim are subjectto protection by the attorney-client privilege or work product doctrine.1 The Lunds also argue that if an in camera inspection is warranted, it must not be conducted by the assigned trial judge. For the following reasons, we hold that the judge abused his discretion by ordering that the documents be submitted for in camera review without a threshold showing that the documents were subject to production. We also conclude that if in camera review of the documents is warranted, the review should not be conducted by the judge who will ultimately serve as the trier of fact.
¶ 2 This litigation started in October 2009, when some of Bradford's relatives (the Real Parties in Interest in this special action; collectively referred to as “Miller”) asked the superior court to appoint a guardian and conservator for Bradford based on his alleged incapacitation and inability to manage his financial affairs. See Lund v. Donahoe, 227 Ariz. 572, 576, ¶ 2, 261 P.3d 456, 460 (App.2011). Bradford, along with William and Sherry, opposed the request. Id.
¶ 3 On September 19, 2011, Bryan F. Murphy, an attorney with Burch & Cracchiolo (“B & C”), as counsel for Miller, served the law firm of Jennings, Strouss & Salmon (“JS & S”) 2 with a subpoena duces tecum. The subpoena requested all “nonprivileged” documents relating to Bradford, including documents and communications relating to (1) durable general powers of attorney signed in April 2003 and February 2006; (2) a petition for appointment of co-guardians for Bradford filed in Maricopa County Cause No. PB2006–000478; 3 and (3) “any will, trust, or other testamentary document prepared for execution by Bradford[.]” The next day, T. Patrick Flood, an attorney with JS & S, responded to the subpoena by completing a declaration indicating that as the custodian of records for the firm, he was attaching 239 pages of records, which constituted “a full and complete copy” of the JS & S file. The documents were then delivered to B & C.
¶ 4 As Flood would explain in a subsequent declaration filed with the superior court, when he reviewed the JS & S file after receipt of the subpoena, he observed that the file related to work performed by fellow attorney Stewart Manley regarding withdrawal of a petition for appointment of co-guardians previously filed on behalf of Bradford by a different law firm. Manley no longer worked at JS & S, and Flood's review of the file also indicated the original JS & S file had been given to Bradford on March 31, 2010, apparently at the telephonic request of attorney Jeff A. Shumway. Because Manley had represented the “petitioner,” and the subpoena from B & C stated that it was on behalf of “petitioners,” Flood “erroneously assumed that [B & C] represented the same party or parties” that Manley had represented. Flood therefore thought there was no need to review the file for privileged documents. Flood then contacted Murphy and informed him that JS & S only had a copy of the file, to which Murphy voiced no concerns. According to Flood, nothing during that phone conversation alerted him that Murphy did not represent Bradford.
¶ 5 Flood explained further that on October 3, 2011, Shumway, representing Bradford, contacted JS & S to advise that a subpoena from B & C had been or would soon be served and that Shumway intended to object. The following day, Flood called Shumway and explained what had been done in responding to the subpoena, to which Shumway expressed “some concern.” As noted by Flood, this was the first indication that he “might have been mistaken in [his] assumption that [B & C] represented some or all of the same parties that Mr. Manley had represented.” Flood also stated he informedShumway that the original file had been provided to Bradford. Shumway responded that he did not recall requesting that the original be given to Bradford, but if Shumway could not find the file, he would come to JS & S to review the copy to determine whether any privileged documents had been disclosed. Flood noted further in his declaration that Shumway did not contact him again regarding the matter. Flood concluded that his disclosure of the entire file was made in good faith, and any disclosure of privileged communications or work product was “completely inadvertent.”
¶ 6 Also on October 4, 2011, Shumway sent the following email to Murphy:
I just learned that [JS & S] forwarded you documents shortly after receipt of your subpoena. They did this without notice to Bradford and apparently without reviewing the files for attorney client privileged materials.
I do not have a copy of the file, but I do have an index of the documents contained in the file. Some of the documents produced are attorney client privileged. Specifically, the files contain a memo to the file dated March 20, 2006 and billing statements dated April 20, 2006 and May 24, 2006. All of these matters are attorney client privileged and should not have been produced by [JS & S]. Please return the originals of the above listed files to me. You should not keep copies of the attorney client materials.
I plan on reviewing the files at [JS & S]'s offices later this week. If I come upon other attorney client materials I will promptly inform you. In the meantime, thank you for your professionalism.
A few minutes later, Murphy responded, “I haven't studied the materials produced with an eye toward privilege issues and will await word from you about documents that were produced which you consider subject to privilege.” Shumway then replied: Nothing in the record before us reflects that any further communications occurred between any of the attorneys regarding the JS & S file until October 27, when Murphy distributed the entire file to all other counsel 4 in the case, as well as a court-appointed investigator, as part of Miller's second supplemental disclosure statement.
¶ 7 On November 14, the Lunds filed a motion to disqualify B & C, asserting that because B & C had “read, kept, and distributed” privileged materials, the only remedy to rectify the “breach of ethics and rules” would be disqualification. At the same time, attorneys representing various parties other than Miller exchanged emails with Murphy, urging him not to disclose any privileged materials to the superior court. Murphy, however, maintained that determining whether the documents “are in fact privileged and whether their production is prejudicial” would necessarily require review by the court and that he intended to file the documents under seal for in camera review.
¶ 8 The following day, JS & S moved to intervene in the litigation, asserting that B & C had failed to return the inadvertently disclosed documents “in the manner prescribed by applicable procedural and ethical rules.” JS & S therefore sought intervention “for the limited purpose of filing a motion to compel [Miller and B & C] to comply with the rules applicable to inadvertent disclosures.”
¶ 9 On November 16, the Lunds filed an emergency motion seeking to prevent Murphy from disclosing the JS & S documents to the court and requesting they be returned to JS & S. At a hearing the next day, the court effectively denied the motion, permitting Murphy to retain the file but directing him not to “replicate or convey the documents to anybody.” The court also ordered JS & S to prepare a log identifying each document it considered privileged. JS & S complied with the request on December 9, 2011, submitting a log indicating that forty-eight documents were subject to the attorney-client privilege or constituted work product. The court granted JS & S's motion to intervene on January 9, 2012.
¶ 10 By minute entry dated January 13, 2012, the court explained that Miller would be permitted an extension of time to file a response to the motion to disqualify B & C until ten days after the court's ruling on the Lunds' emergency motion to prevent Murphy from filing privileged materials. The court then noted that the subpoena served upon JS & S unequivocally requested all “non-privileged portions of any file” but that JS & S's sending of the entire file occurred because of “excusable oversight.” Reasoning that it was obligated to “determine which of the documents in the file are subject to the attorney-client privilege and/or work product privilege(s),” the court directed JS & S to file ...
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