Lund v. Myers, 2013 Ariz. LEXIS 159, 2013 WL 3583944 (Ariz. July 16, 2013)

The court held that a lawyer who received inadvertently produced documents is ethically permitted to submit them to the trial court under seal.


From the Opinion:

“Unlike the court of appeals, we do not find that a receiving party who presents the information under seal to the court thereby violates Rule 26.1(f)(2) by using the information and failing to return, sequester, or destroy it. See Lund, 230 Ariz. at 453 ¶ 26, 286 P.3d at 797. The prohibition in Rule 26.1(f)(2) on the ‘use’ of the documents does not preclude filing the documents with the court under seal or other conduct allowed by the rules. See Fed. R. Civ. P. 26(b)(5)(B) advisory committee’s note to 2006 amend. (stating that the receiving party may not use the information ‘pending resolution of the privilege claim,’ but that it ‘may present to the court’ the questions of privilege and waiver). Counsel may sequester the documents, including filing them under seal; make good faith efforts to resolve the issue with opposing counsel, see Ariz. R. Civ. P. 26(g); and, if necessary, move for the court’s resolution of the issue. Although each of these actions involve a literal ‘use’ of the documents, Rule 26.1(f)(2)contemplates that the privilege claim may be ‘resolved’ through such use.”


The full text is available at…