Out-of-State Subpoenas: Which State Decides Privilege Objections?

Two privilege-related questions arise when an out-of-state subpoena requests production of putatively Mapprivileged information: (1) which state’s privilege law applies? and (2) which court—the home-state court or the foreign-state court—decides the issue? In a split decision, with a well reasoned dissent, on a matter of first impression, the Arizona Court of Appeals ruled that the foreign-state court decides the privilege issue under foreign-state law. Johnson v. O’Connor, 2014 WL 2557700 (Ariz. Ct. App. June 6, 2014). You may access the opinion here.


A Wisconsin criminal court issued a certification pursuant to the Uniform Act to Secure Attendance of Witnesses From Without a State in Criminal Proceedings (Uniform Act) asking an Arizona state court to subpoena psychological records from Arizona-based Psychological Counseling Services, Ltd for use in the Wisconsin criminal trial. PSC claimed that the Arizona psychologist–patient privilege protected the records from disclosure, but the Arizona trial court refused to decide the objection, ruling that the requesting state should resolve “matters of professional privileges.”

Majority Decision

The issue on appeal was whether the trial court should have considered PCS’s privilege objections under Arizona law before requiring PCS to produce the records. In a 2 to 1 decision, the majority interpreted the Uniform Act as requiring the Wisconsin state court—where the criminal proceeding was pending—to decide the privilege issue under Wisconsin law.

The appellate court held that the Arizona Supreme Court case of Tracy v. Superior Court, 810 P.2d 1030 (Ariz. 1991), controlled, but offered other reasons for its decision: (1) the decision furthers the Uniform Act’s purposes because allowing the foreign state to rule on privilege issues reduces procedural hurdles and increases cooperation among the states; and (2) the decision is consistent with the Restatement (Second) of Conflict of Laws § 139(2), which provides that the foreign state’s privilege law decides the issue rather than the state with the most significant relationship.


The dissent took issue with the majority’s reasoning, stating that “communications that take place in Arizona are subject to Arizona law, and Arizona courts should apply that law before ordering the release of privileged or confidential documents for use in a prosecution in another jurisdiction.” The dissent distinguished the Tracy decision, which did not address the production of privileged records.

The dissent viewed the question as: “does the law of the state in which the communications took place govern whether the communications are privileged or confidential, and if so, which state should determine how to apply that law?” The dissent answered that the “site of the communication is dispositive” and requires that the law of the jurisdiction in which the communication occurred controls the privilege issue. It therefore flows that, “because the law of the jurisdiction where the communications took place governs, courts from that jurisdiction are best situated to address whether the communications are privileged.”

The dissent argued that leaving the privilege analysis to another jurisdiction would lead to inconsistent interpretations and applications of the home-state’s privilege law. And allowing a foreign jurisdiction to decide Arizona privilege law places Arizona patients and treating professionals in an untenable position in which there is uncertainty as to what types of communications the psychologist–patient privilege protects from disclosure.

PoP Analysis

This case highlights the split of authority on conflict-of-privilege-law issues for out-of-state subpoenas. Some states reserve the issue to the home state while others defer to the foreign state. The Johnson dissent, though, has the better reasoned argument, particularly with the majority’s questionable reliance on the Restatement provision. Many commentators are critical of this provision, as you can see in this article and my post highlighting an in-depth review of the provision. In short, this case adds to the uncertainty, and the issue needs further development.

Federal Privilege Law Governs Mediation Evidence for Federal & State Claims against “America’s Toughest Sheriff” 1

Do federal courts apply federal or state privilege law in cases involving federal and supplemental state-law claims? The 9th Circuit ruled that federal privilege law governs even where the privileged matter relates to both federal and state claims. Wilcox v. Arpaio, 2014 WL 2442531 (CTA9 June 2, 2014). You may read the opinion here.

But thearpaio Court sidestepped two important issues. Does the 9th Circuit recognize a federal common law mediation privilege? And does federal privilege law apply in federal-question cases where the privileged evidence relates solely to the state-law claim?

America’s Toughest Sheriff Settles

The plaintiffs, Maricopa County (Arizona) supervisors, brought federal (42 U.S.C. § 1983) and state-law claims against “America’s Toughest Sheriff,” Joe Arpaio, and the County. As the plaintiffs were two of several plaintiffs with similar claims, the County established an alternative dispute resolution program and appointed retired judge Christopher Skelly to help resolve the claims.

Following mediation, Judge Skelly sent an email to plaintiffs’ counsel confirming a $975,000 settlement “subject to any further approvals deemed necessary by the parties.” You may read the confirming email here. When the County argued there was no settlement, the plaintiffs moved to enforce and the district court, following an evidentiary hearing, granted the motion.

9th Circuit Rules

On appeal, the County argued that the district court erred by admitting Judge Skelly’s email, claiming that Arizona’s mediation privilege precluded the email’s admissibility. The 9th Circuit noted that state contract law governs the issue whether the parties reached a settlement, but that, where the privilege question relates both to federal and state claims, federal rather than state privilege law applies.

This decision comports with the almost universal treatment of this conflict-of-privilege-law issue. Federal privilege law applies where a court entertains a case under federal-question jurisdiction, even with the presence of supplemental state-law claims.

Unanswered Questions

The Court expressly refused to answer “whether, in federal question cases, state or federal privilege law governs the admissibility of evidence that relates exclusively to state law claims.” The answer is likely that federal common law applies, and you can read more about this conflict-of-privilege-law issue in my article The Application of Conflict of Laws to Evidentiary Privileges.

The Court also ruled that the County waived the mediation privilege by not asserting it at the lower-court level, and therefore declined to “determine whether a mediation privilege should be recognized under federal common law and, if so, the scope of such a privilege.”  See my posts Court Takes Broad View of Mediation Privilege and Is Mediation Privilege Absolute or Qualified? for a discussion of some of these issues.  The Court’s ruling is unfortunate, as the federal common law mediation privilege, prevalent in some but not nearly all federal district courts, needs circuit-court attention and refinement.

Alas, we must await another day for these answers.

My thanks to Phoenix lawyer Patrick Gorman of the Jones, Skelton & Hochuli firm for alerting me to this opinion.

Five Cases, Five Lessons: Emails and Privilege for In-House Counsel

Courts employ a heightened standard when companies attempt to shield their employee–in-house lawyer communications under the attorney–client privilege. The dominant reason for this scrutiny is the recognition that employees often involve in-house counsel in business and legal-related conversations, forcing courts to scrutinize whether the putatively privileged communication pertained to legal or business advice.Legal Advice Computer Key In Blue Showing Attorney Guidance

Emails, which serve as the primary (and too often exclusive) means of communications, exacerbate the business–legal dichotomy because they offer employees an easy avenue to “run a (business) issue by” the in-house lawyer. But emails also increase the chances of privilege waiver due to the lawyer’s lack of, or loss of, control. Employees may easily copy or blind copy non-lawyers with an email or forward an email to internal and external colleagues without restraint.

Unsurprisingly, courts face an increasing number of discovery-privilege disputes that involve email communications. Email privilege disputes do not necessarily arise because an email is involved—indeed, an email is, at bottom, simply a form of communication. But privilege issues that otherwise may not ripen for dispute resolution arise because the communication occurred via email.  In my latest article, Emails and Privilege for In-House Counsel, published in ALM’s
The Corporate Counselor law journal newsletter, I briefly review five 2013(ish) cases involving privilege issues that arose in the email context, and offer take-aways for in-house counsel’s use in 2014 and beyond.

You may access the article here.  I hope you enjoy the read.  And for other posts pertaining to emails and the attorney-client privilege, see my posts about corporate executives’personal emails on company networks, dual-purpose emails, and why emails, privilege, and in-house lawyers present a tricky mix.