Can courts order disclosure of privileged communications just because the subject matter is at issue? Jones Waldo v. 3293 Harrison Explained

The Utah Court of Appeals recently addressed important questions about attorney-client privilege and work-product privilege in discovery proceedings, ruling that courts cannot simply disregard these protections because the underlying subject matter is relevant to the litigation.

Background and Facts

Kenneth Okazaki and Jones Waldo Holbrook & McDonough PC represented Christopher Paulson in his divorce from Trishna Paulson. During the divorce proceedings, the attorneys recorded a Notice of Lis Pendens against property owned by 3293 Harrison Blvd. LLC, where Trishna was a member attempting to sell the property. The lis pendens caused a buyer to cancel a $2.05 million purchase contract. Harrison subsequently sued the attorneys for wrongful lien and intentional interference with economic relations.

Key Legal Issues

During discovery in the wrongful lien litigation, Harrison sought communications between Jones Waldo and their client regarding the lis pendens preparation and recording. The attorneys asserted attorney-client privilege and work-product privilege. Harrison filed two statements of discovery issues (SODIs) arguing the privileges were waived or didn’t apply. The district court granted both SODIs, ordering production of the privileged materials because the subjects were “directly at issue in this case.”

Court’s Analysis and Holding

The Court of Appeals reviewed the existence of privilege for correctness. Regarding the first SODI, the court affirmed because the appellants failed to address the procedural compliance issue that formed the basis of the trial court’s ruling. However, for the second SODI, the court rejected the trial court’s conclusion that privileges were waived simply because the subject matter was “at issue.” The court emphasized that waiver of attorney-client privilege requires more than mere denial of allegations—the client must place attorney-client communications “at the heart of a case” by asserting claims or defenses that require examination of the confidential communications.

Practice Implications

This decision reinforces that courts cannot strip away attorney-client privilege without proper analysis of waiver doctrines. Practitioners should note that simply denying wrongdoing allegations does not waive privilege, even when privileged communications might be relevant. The ruling also highlights the importance of addressing all grounds for a trial court’s decision on appeal—failing to challenge procedural compliance findings can result in affirmance despite successful privilege arguments.