We blogged the Court of Appeals’ opinion here; go there for the facts.The Supreme Court vacates that decision, largely undoes the damage it caused, and gives some fairly clear directions on how to deal with the problem.

Rule 26(1)(f)(2) does not require the return of allegedly-privileged documents produced inadvertently. The party receiving the documents may return them, destroy them, or, if the party wants a ruling on them, file them under seal.

If the documents are filed under seal the trial court may not look at them until “the receiving party makes a factual showing to support a reasonable, good-faith belief that the document is not privileged.” (That involves briefing by both sides and since the trial judge in this case did not wait that long the case is remanded.)

How can the receiving party know enough about the documents to make such a showing? The rule’s prohibition on the “use” of the documents “does not preclude filing the documents with the court under seal and other conduct allowed by the rules” (our emphasis). The rule allows the party to “present to the court” . . . “the questions of privilege and waiver.” The opinion does not specifically say “you can examine the documents enough to figure out if they’re really privileged” but that seems to be the lesson we’re to draw. “Although . . . 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.”

If a proper showing is made, an in camera review determines if the documents are privileged. As to who should do that, “the trial judge should consider whether another judicial officer [note that it doesn’t say “judge”] should conduct the review in light of the possibility that a review of privileged documents may be so prejudicial as to require the judge’s recusal. If the trial judge conducts the review and upholds the privilege claim, the judge should consider whether recusal is then necessary.”

(link to opinion)

We blogged the Court of Appeals opinion here; go there for the facts. The Supreme Court disagrees with the Court of Appeals, deciding that Montelucia does after all have to prove its ability to perform before it can retain the earnest money.

The rule is salutary but the court sullies it by playing games with words, suggesting that the issue is whether “a defendant who seeks to retain damages” must show ability to perform. To call the benefits received by one party under a contract “damages” when the other decides to repudiate it is spin, not analysis.

On remand Montelucia must prove that it was ready to perform in order to keep the earnest money. For some reason the court seems uneasy about this since it spends several paragraphs explaining that this earnest money wasn’t, contrary to the contract language and Montelucia’s claim, really earnest money, it was progress payments. Maybe that’s right but since when is it for the Supreme Court to resolve disputed facts? This was a contract – the money’s function was what the parties intended it to be. And what does all this mean to the analysis – if it really was “earnest money” would it not be “damages?” Apparently not, because the court tells us that earnest money “typically” remains in escrow and “usually” does not finance construction. But what if it doesn’t and does, respectively?

(link to opinion)

We blogged the Court of Appeal’s opinion here. Go there for the facts. The Supreme Court’s disposition is the same but it analyzes the statute differently.

Principally, it holds that “specialty” includes subspecialty. The trial court was correct that Plaintiff’s expert had to be a pediatrician with a subspecialty in hematology/oncology.

While the court says that a “specialist” is one who is board-certified it doesn’t’ say anything about using web sites to make that determination, much less to decide appeals. It also decides that 12-2604 requires an expert in the same specialty only when the care or treatment was within that specialty. And it concludes that in order for the defendant doctor to qualify as a specialist he or she must have spent the majority of time practicing that specialty. That’s because the statute requires the plaintiff’s expert to have done so; the logic eludes us.

The court also holds the statute constitutional against various challenges.

The court vacates CA1’s opinion except insofar as that opinion vacated the judgment and remanded to give Plaintiff another bite of the apple. Why do that if the trial court’s ruling was correct? The Supreme Court mentions that it “declined to review” that issue. Its interesting to know that the disposition of a case is a separate issue. That confirms something we’ve said before in another context – though back then we thought we were being satirical: the disposition of an appeal isn’t the logical procedural consequence of the holding, its whatever the court wants to do.

(link to opinion)