Lund v. Myers (CA1 9/6/12)

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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)

Engler v. Gulf Interstate (7/9/12)

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The Supreme Court took this case because CA1’s opinion in it (which we reported here) conflicts with CA2’s opinion in McCloud v. Kimbro.

The court affirms Engler and rejects the McCloud analysis. Respondeat superior depends on the employers right to control, which is measured at the time of the tort.

The opinion does not expressly disapprove McCloud, pretending that it depended on an administrative regulation that was not involved in Engler. “But to the extent that McCloud II suggests that employees generally are acting within the course and scope of their employment when ‘driving to a restaurant’ while off duty during an extended out-of-town assignment ‘because eating is incidental to a multiple-day assignment,’ we disagree.”

(link to opinion)

Sierra Tucson v. Lee (6/28/12)

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This case underscores the importance for both sides of moving quickly on the issue of venue.

Sierra Tucson was sued after a patient disappeared from its psychiatric hospital and was later found dead. Plaintiff filed in Pima County. Sierra Tucson moved for change of venue – under the 12-404 procedure, filing an affidavit before the time for an Answer – since its a foreign corporation and its hospital is in Pinal County. Plaintiff first said she had no objection but then changed her mind and moved to amend the Complaint to add as a defendant a Sierra Tucson employee who lives in Pima County. The trial court granted that, denying the motion for change of venue. Sierra Tucson took this special action; the Court of Appeals accepted it and grants relief.

Change of venue is mandatory unless a party disputes the movant’s affidavit with one of its own within five days. Because the plaintiff did not, the Court of Appeals holds that the trial court had no authority to consider the Motion to Amend or to do anything other than order the transfer.

Plaintiff argued that because no responsive pleading had been filed she had the right under Rule 15 to amend “once as a matter of course.” The court agrees that a motion for change of venue is not a responsive pleading. But it holds that the right to amend did not survive the five-day deadline; she needed to move to amend before that. The court raises but declines to answer the question of whether she also had to file a controverting affidavit.

Plaintiff argued that if she lost she would simply dismiss the case in Pinal and re-file it, including the new defendant, in Pima. The court points out that that doesn’t make the trial judge’s ruling correct.

(link to opinion)