BRADFORD D. LUND, an individual; WILLIAM S. LUND, and SHERRY L. LUND, husband and wife, Petitioners,
THE HONORABLE ROBERT D. MYERS, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of Maricopa, Respondent Judge, MICHELLE A. LUND, DIANE DISNEY MILLER, KRISTEN LUND OLSON, and KAREN LUND PAGE, Real Parties in Interest, JENNINGS, STROUSS & SALMON, P.L.C., Intervenor.
Appeal from the Superior Court in Maricopa County No. PB2009-002244 The Honorable Robert D. Myers, Judge
Opinion of the Court of Appeals, Division One 230 Ariz. 445, 286 P.3d 789 (App. 2012) No. 1 CA-SA 12-0027
JONES, SKELTON & HOCHULI, P.L.C. By A. Melvin McDonald And SHUMWAY LAW OFFICES, P.L.C. Scottsdale By Jeff A. Shumway Attorneys for Bradford D. Lund
MEYER HENDRICKS, PLLC By Ed F. Hendricks, Jr. Brendan A. Murphy W. Douglas Lowden Attorneys for William S. Lund and Sherry L. Lund
BURCH & CRACCHIOLO, P.A. By Daryl Manhart Bryan F. Murphy, Jessica Conaway Attorneys for Michelle A. Lund, Diane Disney Miller, Kristen Lund Olson, and Karen Lund Page
JENNINGS, STROUSS & SALMON, P.L.C. By John J. Egbert J. Scott Rhodes Attorneys for Jennings, Strouss & Salmon, P.L.C.
¶1 We address when a trial court, in deciding issues of privilege and waiver, may review in camera allegedly privileged documents that were inadvertently disclosed. We hold that before reviewing a particular document, a trial court must first determine that in camera review is necessary to resolve the privilege claim.
¶2 This litigation began in 2009, when relatives of Bradford Lund (the real parties in interest in this case, collectively, "Miller") sought the appointment of a guardian and conservator to manage Bradford's assets. Bradford, his father, and his stepmother (collectively, "the Lunds") opposed the appointment.
¶3 In September 2011, Miller's counsel, Bryan Murphy of Burch & Cracchiolo ("B&C"), served the law firm Jennings, Strouss & Salmon ("JS&S"), which had previously represented Bradford in petitioning for the appointment of a guardian, with a subpoena duces tecum requesting all non-privileged information relating to Bradford. Mistakenly believing that Murphy represented Bradford, a JS&S attorney responded to the subpoena by delivering the entire client file to Murphy without reviewing it for privileged information.
¶4 Early in October, Bradford's attorney, Jeff Shumway, learned that JS&S had given Bradford's file to Murphy. Shumway told Murphy by email that he believed the file contained at least two privileged documents that should be returned. Murphy replied that he would wait to hear from Shumway, who responded he would inform Murphy if further review revealed other privileged documents. After not hearing further from Shumway for three weeks, Murphy distributed the entire file to all other counsel in the case, as well as a court-appointed investigator, as part of Miller's second supplemental disclosure statement.
¶5 On November 14, the Lunds filed a motion to disqualify Murphy and B&C on the ground that they had "read, kept, and distributed" privileged materials. The next day, JS&S moved to intervene to file a motion to compel Murphy and B&C to comply with the rules applicable to inadvertent disclosure, Ethical Rule 4.4(b) and Arizona Rule of Civil Procedure 26.1(f) (2).
¶6 On November 16, the Lunds filed an emergency motion to prevent Murphy from disclosing the file to the court and for an order that it be returned to JS&S. At a November 2 9 hearing, the trial court permitted Murphy to retain the file, but directed him to not copy any documents from the file or convey them to anyone. The court also ordered JS&S to create a privilege log, which JS&S filed with the court ...