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)

This will interest those involved in foreclosures but for our purposes is significant as a useful discussion of the nuts and bolts of handling a vexatious litigant.

Factually it is yet another story of a debtor who borrowed money to buy a home, couldn’t repay it, and then filed everything she could think of pro se to prevent foreclosure. When she eventually lost, the trial court declared her a “vexatious litigant” and ordered her not to file further lawsuits about the property without court permission.

The court tells us in a footnote that such things are normally done by unappealable administrative order but that since this order was in a judgment (dismissing Madison’s Complaint) it is “essentially” an award of injunctive relief, which is appealable. Sometimes court are very strict about jurisdiction; other times, it seems, “essentially” having it is good enough.

A court has inherent authority over vexatious litigants but this opinion adopts a Ninth Circuit case (DeLong 1990) establishing procedural requirements. The trial court has to give notice and an opportunity to be heard, make a record for review, make “substantive findings as to the frivolous or harassing nature of the litigant’s actions,” and tailor the order narrowly.

The third step was at issue here and the Court of Appeals decides that the trial court got it wrong. Although it apparently made findings about all the lawsuits she had filed, it didn’t specifically find that any or all were frivolous or harassing. “[A] vexatious litigant order must rest on more than a recitation of the number of previously filed lawsuits.” In fact, it impliedly found to the contrary, at least about this particular lawsuit, by denying the defendants’ Rule 11/12-341.01C motion for fees. The court affirms the dismissal of Madison’s lawsuit but reverses the “vexatious litigant” order judgment.

Sometimes we like to think we have some effect on opinion writing, more often we realize we probably don’t, and once in a while we get paranoid and think that courts throw in things we won’t like just to spite us. One or two of the nine footnotes here might possibly be missed if they weren’t there. If jurisdiction is important enough to mention then its one of the more important things in the opinion and shouldn’t be stuck in a footnote. But what, for example, can possibly be the need, after mentioning in passing that this pro se plaintiff sued, among other things, for “conversion” of her home, for a footnote saying (and citing a case) that conversion applies only to chattels? The court sees the problem and so throws in a justification: “to avoid future confusion.” But who will be or has been confused? As for the people in this case, its over – and if it weren’t, if the case were going back on remand, then the court wouldn’t dare mention it. Does the court really think that somebody is going to read this case in the future and decide that it changed the law of conversion? Or is the court going out of its way to augment Ms. Madison’s legal education (for the next time she files one of those non-vexatious lawsuits)? And if it thinks that mentioning this allegation that had nothing to do with anything before the court will confuse, why mention it?

(link to opinion)

The facts of this case are unimportant; it is published to announce a change in a point of appellate law.

The trial court dismissed Kool’s Complaint without prejudice and awarded Evans fees and costs. Kool appealed the dismissal and the fee award.

The Court of Appeals first points out that a dismissal without prejudice isn’t appealable. That isn’t the change, though its something that the courts have to publish on every once in awhile since an amazing number of people filing appeals apparently don’t know the basics. A dismissal without prejudice isn’t a final judgment (unless for some reason, such as the statute of limitations, you can’t re-file).

The change is that the court next has to deal with Callanan (1982), in which it held that fee awards from dismissals without prejudice were appealable. The opinion announces that Callanan was wrong because nothing in 12-2101 authorizes such an appeal.

(So the court treats the appeal as a special action, accepts it, and grants relief. It concludes that the dismissal was wrong and so the fee award was also wrong.)

(link to opinion)