Lund v. the Honorable Gary E. Donahoe
| Decision Date | 28 July 2011 |
| Docket Number | Nos. 1 CA–SA 11–0026,1 CA–SA 11–0030,1 CA–SA 11–0036.,s. 1 CA–SA 11–0026 |
| Citation | 613 Ariz. Adv. Rep. 39,227 Ariz. 572,261 P.3d 456 |
| Parties | William LUND and Sherry L. Lund, husband and wife; Sandra Slaton, counsel for William and Sherry Lund, Petitioners,v.The Honorable Gary E. DONAHOE, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,Diane Disney Miller, an individual, Kristen Lund Olsen, Karen Lund Page, Michelle A. Lund, Real Parties in Interest.Joel E. Sannes, Esq.; Rachel and Robert Schemitsch; Sabrina Lovejoy, Petitioners,v.The Honorable Gary E. Donahoe and the Honorable Robert D. Myers, Judges of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judges,Diane Disney Miller, an individual, et al., Real Parties in Interest.Bradford D. Lund, Petitioner,v.The Honorable Gary E. Donahoe, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,Diane Disney Miller, an individual, Kristen Lund Olsen, Karen Lund Page, Michelle A. Lund, Real Parties in Interest. |
| Court | Arizona Court of Appeals |
OPINION TEXT STARTS HERE
Slaton Law Office, P.C. By Sandra Slaton, Scottsdale, Petitioner and Attorney for Petitioners William and Sherry Lund.Burch & Cracchiolo, P.A. By Daniel Cracchiolo, Daryl Manhart, Brian F. Murphy, Clarissa Reiman, Jessica Conaway, Phoenix, Attorneys for Respondents Diane Disney Miller, Kristen Lund Olsen, Karen Lund Page, and Michelle A. Lund.Lake & Cobb, PLC By Joel E. Sannes, Tempe, Petitioner and Attorney for Petitioners Rachel and Robert Schemitsch and Sabrina Lovejoy.Shumway Law Offices, PLC By Jeff A. Shumway, Scottsdale, Attorneys for Petitioner Bradford D. Lund.
¶ 1 In this guardianship proceeding, an expert witness complained to the court about the burden posed by a subpoena for records. Within days, the court sua sponte set a show-cause hearing concerning possible sanctions. Before the hearing, the court announced its view that the subpoena represented an abuse of the discovery process and had been served as a means of harassing the witness. At the show-cause hearing, the court issued an order of confinement that resulted in a lawyer being handcuffed in open court when he declined to answer questions under oath that would have invaded the attorney-client privilege pursuant to a common interest agreement. Several attorneys subject to the ensuing sanctions order now seek special action relief. We conclude that the trial court's actions constituted a clear abuse of discretion, and we therefore accept jurisdiction and grant relief.
¶ 2 In October 2009, relatives of Bradford Lund (collectively “Petitioners”) petitioned the probate court to appoint a guardian, conservator, guardian ad litem, and next friend for him. Lund and other family members opposed the petition. The probate court eventually appointed Dr. Pamela Willson to conduct a competency evaluation of Lund.
¶ 3 Joel Sannes, an attorney for Mr. Lund's sister, notified all counsel and Lund's court-appointed guardian ad litem that he would issue a records-only subpoena to Dr. Willson. Sannes provided counsel a copy of the subpoena before it was served. The subpoena was served eight days later and requested:
[c]opies of any and all reports you have written or signed after January 1, 2005 concerning or related to the competency or capacity of any person, but only if the reports were prepared, provided or disclosed in connection with your appointment in any case filed in any court in the State of Arizona, or in connection with any services where you were engaged as an expert witness or consultant to give opinions related to any case filed in any court in the State of Arizona.
The subpoena also explained Dr. Willson's duties and rights in responding to the subpoena, including her right to make a written objection pursuant to Ariz. R. Civ. P. 45.1 The letter attached to the subpoena asked Dr. Willson to create a “privilege log” to identify and describe “all documents and information not produced.”
¶ 4 Dr. Willson did not serve an objection pursuant to Rule 45. Instead, and almost immediately after receiving the subpoena, she telephoned the assigned trial judge and resigned from the case. She confirmed her resignation in a one-page letter to the court the same day and complained about the subpoena:
With your permission, I am resigning as Court-appointed examiner in the matter of Bradford Lund, effective immediately. My office has already wasted a lot of time trying to schedule appointments in this case, and just as we have again been asked to set up ‘tentative’ evaluation dates, I've received a subpoena from attorney Joel Sannes, representing Rachel Schemitsch.
....
To comply [with the subpoena] will require my going one-by-one through over 700 reports to determine the nature of the issues I addressed and my specific role in each matter. Some of the cases have involved confidential work product, and in other cases my report has been sealed by the Court, but I'm not always told of that decision when it's part of a settlement agreement, so I have no idea how to even identify many of those cases.
As a solo practitioner, I haven't got the time or office staff to respond to this subpoena, and am unwilling to waste time trying to accommodate [sic] the maneuvering on all sides of this case, which promises to continue unabated. The case has been a time-consuming nuisance, and there are other matters where my professional energy will be put to much better use.
The court revealed at a November 1, 2010 status conference that it had attempted unsuccessfully in an off-the-record telephone conference to convince Dr. Willson not to resign.
¶ 5 At the November 1 status conference, the court—without permitting counsel to be heard—characterized the subpoena as “completely uncalled-for” and “overbroad and oppressive ... intended more for harassment than anything else.” The court sua sponte quashed the subpoena and ordered Sannes and his clients to appear November 4 to show cause why the court should not order sanctions against Sannes or his clients. It also ordered “[a]ny other attorney that participated with Mr. Sannes in the decision to serve this subpoena” (collectively, the “Attorneys”) to appear along with their clients for the same purpose. The court further explained:
if this was part of a joint litigation strategy where Mr. Sannes ran the idea by other counsel before serving the subpoena, you'll need to tell me about your involvement on Thursday, and I'll decide whether any sanctions are appropriate.
¶ 6 In response, the Attorneys submitted memoranda asserting that the subpoena appropriately sought records to prepare for cross-examination of a court-appointed expert and that Ariz. R. Civ. P. 45 provided Dr. Willson a simple means to limit the scope of the subpoena and “absolve her of any need to respond.” The memoranda also confirmed that the Attorneys were parties to a Common Interest Agreement (“CIA”), and asserted that the attorney-client privilege required them “to maintain the confidentiality of any ‘discussions' ... regarding the Subpoena.”
¶ 7 At the November 4 hearing, the court announced it would “deal with Mr. Sannes first” and asked him to present “any reason ... not to be sanctioned” for issuing the subpoena. Through counsel, Sannes presented argument concerning the validity of the subpoena. He argued that he had been unaware of the large body of material responsive to the subpoena and noted that Dr. Willson could easily have limited the scope of the subpoena pursuant to Ariz. R. Civ. P. 45. The court rejected his argument and ordered Sannes to come forward and be placed under oath.
¶ 8 After acknowledging that Sannes and some of the Attorneys had executed a Common Interest Agreement, the court asked Sannes to identify all parties to that agreement. When Sannes asserted that the information was itself privileged, the court rejected his argument and ordered him to answer the question or be held in direct civil contempt. The court also refused Sannes's request, through counsel, to stay its order to allow Sannes time to seek special action relief. On advice of counsel, Sannes then disclosed the names of the attorneys who were parties to the joint defense agreement. The court then asked whether “the decision to issue this subpoena and serve it on Dr. Willson was a joint decision of all the parties to the agreement?” After explaining that he could not answer the question “without disclosing ... the nature of the conversations,” Sannes declined to answer. The court then held Sannes in direct contempt and issued an order of confinement that resulted in Sannes being handcuffed in the courtroom. Sannes's counsel orally moved for reconsideration, and the court denied the motion without discussion.
¶ 9 Having determined that issuance of the subpoena was sanctionable, the court then purported to hold a “culprit hearing” and questioned other Attorneys—while Sannes remained handcuffed—to determine whether there was a “joint agreement essentially to abuse the discovery process.”
¶ 10 The court rejected additional argument from the Attorneys that a five-year request for expert records was standard discovery practice. Though it conceded that an identical subpoena might be appropriate in some cases, the court concluded that the subpoena was inappropriate in this case because discovery into the underlying details of Dr. Willson's 700 opinions would have been too burdensome. The court stated that counsel had no right to examine documents to test the witness's answers to deposition questions concerning her past work, and opined that it would be irrelevant even if Dr. Willson had issued 700 opinions that all came to the same conclusion.
¶ 11 In the face of the Attorneys' refusal to disclose the substance of their communications concerning issuance of the subpoena, the court ...
To continue reading
Request your trial
-
Lund v. Burch & Cracchiolo P.A.
...conservator for Lund based on his alleged congenital cognitive incapacity and inability to manage his financial affairs. See Lund v. Donahoe, 227 Ariz. 572, 576, ¶ 2 (App. 2011). The petitioners alleged that other family members—including Lund's father and stepmother—had isolated Lund to co......
-
In re $70,070 In U.S. Currency
...contest the state's allegations through the presentation of testimony and cross-examination of the state's witnesses.4 Cf. Lund v. Donahoe, 227 Ariz. 572, ¶ 36, 261 P.3d 456, 465–66 (App.2011) (finding due process violation where court provided insufficient notice that “order to show cause”......
-
Lund v. Myers
...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,......
-
Henderson v. Henderson
...only by special action). We review a trial court's contempt finding and imposition of sanctions for an abuse of discretion. Lund v. Donah o e , 227 Ariz. 572, ¶ 19, 261 P.3d 456, 462 (App. 2011) (sanctions); Stoddard v. Donahoe , 224 Ariz. 152, ¶ 9, 228 P.3d 144, 146 (App. 2010) (contempt).......