THIS OPINION HAS BEEN VACATED

The drought of bloggable civil cases is at last over (the Supreme Court will issue another one tomorrow). This special action addresses how to handle privileged documents inadvertently produced.

Miller, Lund’s relative, filed to have a guardian appointed for Lund, apparently involuntarily. Miller’s lawyers subpoenaed non-privileged documents from Lund’s former law firm. That firm mistakenly produced a copy of the whole file, including a lot of allegedly-privileged documents.

Lund insisted that Miller’s lawyer return them and moved to disqualify him for receiving them. Miller’s lawyer decided to let the trial court inspect the file in camera to see what was privileged. The court ordered in essence that it would review the documents and then rule on the motion to disqualify. Lund unsuccessfully objected to the trial court looking at them, and then took took this special action. (We simplify the facts a bit; this was one of those family squabbles involving a bunch of relatives.)

(There had been twelve earlier attempts at special action in this case; the lesson is: never quit filing them, and damn the expense, because the thirteenth time could be the charm.)

Preliminarily, the Court of Appeals ruled that the privilege hadn’t been waived. The trial court had, generously, done the same thing, based on particular facts of this case that we won’t mention in hopes that nobody ever does things quite that way again.  The Court of Appeals should have mentioned the facts briefly and ruled that they supported the trial court’s conclusion. Instead it states them in excruciating detail, which makes none of the lawyers look very good.

After a lengthy, unenlightening, and largely unnecessary treatise on the attorney-client privilege, the court holds that Rule 26.1(f)(2) means that you must return the documents when notified of an inadvertent-production claim before moving for in-camera inspection. Miller’s lawyer had interpreted it to mean that the two procedures were alternatives.

The court also rules that in order to obtain an in camera inspection of the documents you must make a showing that they are “likely not privileged or that the privilege has been waived.” That’s interesting since in theory you shouldn’t look at them once the claim is made, making a showing about them a bit difficult, and since the person claiming the privilege traditionally has the burden of proving it.

The opinion also says that if the court is the trier of fact it shouldn’t hold the in camera review. It then hedges that in various ways, presumably to minimize the disruption this will cause.

This opinion is 33 pages long but the heart of it is one paragraph (26), which contains almost all of what little actual analysis there is here.

(link to opinion)