Nonparty not Bound by Protective Order

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Civil Procedure—Nonparty Not Bound By Protective Order

State v. Grant, 222 Ariz. 197, 213 P.3d 346 (App., Div. I, July 21, 2009) (J. Johnsen)

NONPARTY THAT DID NOT AGREE TO BE BOUND BY PROTECTIVE ORDER NOT SUBJECT TO SANCTIONS FOR DISSEMINATING PROTECTED DEPOSITION TRANSCRIPT

Parties to suit obtained protective order on documents and some depositions in case. A witness whose deposition was subject to the order was also a witness of interest to a criminal investigation. When the county attorney learned he had been deposed she asked if she could have a copy. The parties objected unless the state agreed to be bound by the order. In the meantime, the sheriff executed a search warrant on the witness' office and seized a copy of the deposition along with other items. The county attorney advised the court of this and stated on the record that she had “directed the Sheriff's Office to hold on to that deposition and not review it until I brought this to the Court's attention.”

Thereafter the sheriff released the deposition to the East Valley Tribune filed a public records request on the sheriff seeking a copy of the deposition and the sheriff gave it to them. They then published excerpts in the newspaper. The trial court then attempted to sanction the county attorney for violating the protective order.

A nonparty to litigation can only be bound by a judgment or order in the litigation if 1) the nonparty represented the party (e.g. trustee, fiduciary or class representative) 2) where there is an appropriate pre-existing legal relationship (e.g., predecessor/successor-in-interest, bailee/bailor, indemnitor/indemnitee) 3) where circumstances justly require he be denied the right to relitigate the issue (e.g. using one's name to mislead opposing litigant, assuming control of litigation and agreeing to be bound by adjudication).

Here the only potentially applicable exception would be that the county attorney agreed to be bound. This was the finding of the trial court but the Court of Appeals concluded the record did not bear this out; the county attorney only agreed to do nothing with the deposition until she appeared in a hearing before the court which she did.

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