Civil Procedure-Scope of Discovery Sanctions

Civil Procedure—Scope of Discovery Sanctions

Lund v. Donahoe, 613 Ariz. Adv. Rep. 39 (App. Div. I, July 28, 2011) (J. Swann)


In this guardianship action an expert complained that the burden posed by a subpoena duces tecum was excessive. The trial court sua sponte scheduled a “for cause” hearing and preliminarily indicated it felt the subpoena was an abuse of discovery and was served to harass the witness. At the hearing a lawyer was handcuffed and issued an order of confinement when he refused to answer questions of the court which invaded the attorney-client privilege pursuant to a common interest agreement.

On appeal the Arizona Court of Appeals first found that the subpoena in question was not per se improper. The subpoena requested the court appointed expert produce any reports she had authored in the last five years concerning competency or capacity. Such a request the court of appeals found was a proper inquiry for use in cross examination. “Arizona has a long-favored practice of allowing full cross-examination of expert witnesses, including inquiry about the expert's sources, relations with the hiring party and counsel, possible bias, and prior opinions and allows expansive pretrial discovery aimed at expert witnesses.”

The subpoena was issued well within the discovery deadlines. Most importantly, the question of propriety was not raised by the opposing party or even the witness in a manner approved by the Arizona Rules of Civil Procedure, e.g. rule 45 which authorizes a party or witness to seek relief from the court in the face of an improper subpoena. Instead, the sanction here was prompted by an ex parte phone call by the witness directly to the judge followed by a letter.

The court of appeals found that if the subpoena was in fact unduly burdensome, the proper approach would have been for the expert to file a rule 45 motion seeking modification or quashing of the subpoena or for the court sua sponte to consider such relief under the guidance of the rule. For the court to rely exclusively upon the  ex parte phone call and a letter from the expert without considering the procedure of rule 45 and without taking any other evidence to support a finding of abuse and harassment was a clear abuse of discretion.

Further, Arizona has long recognized the applicability of the “common interest” doctrine to extend the attorney-client privilege to all attorneys and clients with a common interest in litigation. As such the attorneys here were within their rights to refuse to divulge to the court which of them had agreed to the service of the subpoena.

Finally, the failure of the trial court to allow counsel to produce evidence and argument in opposition to the sanctions imposed was a violation of due process and abuse of discretion. The contempt finding and all sanctions are vacated.

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