Rel: April 26, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2023-2024 ________________________
CL-2023-0811 ________________________
Ex parte Gene Warhurst, Jr., P.C.
PETITION FOR WRIT OF MANDAMUS
(In re: Tenley Fullington Warhurst
v.
Ernest Eugene Warhurst, Jr.)
(Baldwin Circuit Court: DR-20-901162)
PER CURIAM.
Gene Warhurst, Jr., P.C. ("the law firm"), has petitioned this court
to issue a writ of mandamus directed to the Baldwin Circuit Court ("the CL-2023-0811
trial court") compelling the trial court to grant the law firm's motion to
quash a nonparty subpoena that was served upon it. Although we do not
grant the specific relief requested, we grant the petition and direct the
trial court to comply with Rule 45(c)(3)(A)(iii), Ala. R. Civ. P.
Background
On October 12, 2020, Tenley Fullington Warhurst ("the wife") filed
a complaint in the trial court, seeking a divorce from Earnest Eugene
Warhurst, Jr. ("the husband"), who subsequently filed an answer and a
counterclaim for a divorce. During a hearing on March 22, 2022, the
wife's counsel indicated that the wife intended to request that the
husband produce, for the purposes of a forensic examination, the Apple-
brand cellular telephone that he regularly used; however, at that time,
the cellular telephone was in the custody of the Fairhope Police
Department, which had seized the telephone after the husband had been
charged with stalking the wife. On June 2, 2023, after the stalking
charges were dismissed, the trial court ordered the husband to obtain the
cellular telephone from the Fairhope Police Department and to produce
the cellular telephone to the wife.
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After receiving the cellular telephone, the wife's expert determined
that its hard drive had been damaged by water intrusion, preventing
access to any data stored on the hard drive. On August 31, 2023, the wife
filed a motion alleging that the husband had intentionally damaged the
cellular telephone and requesting that the trial court order the husband
to produce the passcode for the cellular telephone and the username and
password for the iCloud electronic-data-storage account ("the iCloud
account") linked to the cellular telephone. On September 22, 2023, the
husband filed an objection to the motion; he attached to the motion his
affidavit, in which he attested that he had not intentionally damaged the
cellular telephone, that the cellular telephone and the iCloud account
linked thereto were owned by his law firm, Gene Warhurst, Jr., P.C. ("the
law firm"), and that the iCloud account contained confidential
communications that were protected from discovery by the attorney-
client privilege. The trial court denied the wife's motion.
On September 26, 2023, the trial court instructed the wife to file a
nonparty subpoena, to be served on the law firm, requesting the password
for the iCloud account. On September 27, 2023, the wife filed a notice of
intent to serve a nonparty subpoena on the law firm and a motion to
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shorten the time for the law firm to respond to the subpoena. The
husband objected to the nonparty subpoena; however, on October 6, 2023,
the trial court granted the motion to shorten the time for the husband to
comply with the subpoena, thereby impliedly overruling his objection.
On October 11, 2023, the wife served the nonparty subpoena on the law
firm, requesting that the law firm produce, by 9:00 a.m. the following day,
"[the cellular telephone that the husband had] retrieved from the
Fairhope Police Department," the passcode to access the cellular
telephone, and the password for the iCloud account. On October 13, 2023,
the law firm filed a motion to quash the nonparty subpoena insofar as it
sought the password to the iCloud account; the trial court summarily
denied the motion to quash on October 16, 2023. On November 15, 2023,
the law firm filed a petition for the writ of mandamus with this court,
seeking an order requiring the trial court to grant its motion to quash the
nonparty subpoena.
Timeliness
This court has jurisdiction over this petition pursuant to Ala. Code
1975, § 12-3-11. The wife argues, however, that the mandamus petition
was not filed within a reasonable time as required by Rule 21(a)(3), Ala.
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R. App. P. Citing the extensive litigation over the discovery of the data
on the cellular telephone, the wife posits that the husband, who she
characterizes as an alter ego of the law firm, knew as early as March 2022
that the trial court would allow her expert access to that data through a
forensic examination and that the petition for the writ of mandamus
should have been filed, at the latest, within a reasonable time from the
entry of the June 2, 2023, order requiring the husband to produce the
cellular telephone.
The June 2, 2023, order, in essence, granted the wife discovery of
the "electronically stored information" contained on the hard drive of the
cellular telephone. See Rule 26(b)(2), Ala. R. Civ. P., and the Committee
Comments to Amendment to Rule 26 Effective February 1, 2010.
According to the materials before this court, the iCloud account contains
different and far more electronically stored information than the hard
drive of the cellular telephone. Thus, the nonparty subpoena requesting
production of the password for the iCloud account can be characterized
only as a new discovery request. The trial court directed the wife to make
that request directly to the law firm through a nonparty subpoena;
however, the request could have been made directly to the husband if the
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trial court had determined that he controlled the law firm because Rule
34(a), Ala. R. Civ. P., expressly allows a party to serve requests for
production for the purpose of discovering electronically stored
information "in the possession, custody, or control of the party upon
whom the request is served." (Emphasis added.) The trial court
evidently determined that the law firm was a separate entity with
ownership and control over the iCloud account, as the husband
maintained. Accordingly, the trial court never ordered the husband to
produce the password for the iCloud account; it ordered only the law firm
to provide that information. That order was entered on October 16, 2023,
when the trial court denied the law firm's motion to quash.
Based on Rule 21(a)(3), Ala. R. App. P., "[i]n domestic-relations
cases, a party aggrieved by an order of a circuit court generally has 42
days from the date of the entry of that order to file a petition for the writ
of mandamus." Ex parte Laymon, 343 So. 3d 32, 34 (Ala. Civ. App. 2021).
The law firm filed this mandamus petition within 42 days of the October
16, 2023, order denying its motion to quash, in compliance with Rule
21(a)(3), and, thus, the petition is not untimely.
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Standard of Review
As to the merits, "a mandamus petition may be used to review
rulings on motions to quash subpoenas from parties and nonparties." Ex
parte Summit Med. Ctr. of Montgomery, Inc., 854 So. 2d 614, 616 (Ala.
Crim. App. 2002).
" ' "A writ of mandamus is 'appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001)." ' "
Ex parte Brown, 963 So. 2d 604, 606-07 (Ala. 2007) (quoting Ex parte
Rawls, 953 So. 2d 374, 377 (Ala. 2006), quoting in turn Ex parte
Antonucci, 917 So. 2d 825, 830 (Ala. 2005)). A petition for the writ of
mandamus is the appropriate method for seeking review of a discovery
order that disregards a privilege or "compels the production of patently
irrelevant or duplicative documents, such as to clearly constitute
harassment or impose a burden on the producing party far out of
proportion to any benefit that may obtain to the requesting party." Ex
parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003).
7 CL-2023-0811
Issues
In ruling on a petition for the writ of mandamus regarding a
discovery dispute, an appellate court is limited to the arguments on
which the trial court based its decision. See Ex parte Newby, 194 So. 3d
913, 917 (Ala. 2015). In its motion to quash, the law firm argued that the
request for the password to the iCloud account exceeded the scope of
discovery because it would allow the wife access to all the electronic
information stored in the iCloud account, including confidential
communications protected by the attorney-client privilege, without a
showing that the information was relevant to the claims and defenses in
the divorce action between the husband and the wife and was
proportional to the needs of the case. See Rule 26(b)(1), Ala. R. Civ. P.
The law firm also argued that the subpoena failed to allow a reasonable
time for compliance with the request.
Analysis
A party may obtain electronically stored information from a
nonparty through Rule 45(a)(1)(C), Ala. R. Civ. P., so long as that
information is within the scope of discovery under Rule 26(b)(1), Ala. R.
Civ. P. See generally Ex parte Meadowbrook Ins. Grp., Inc., 987 So. 2d
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540, 551 (Ala. 2007) (applying Rule 26, Ala. R. Civ. P., when determining
whether nonparty subpoena should be quashed or modified for exceeding
scope of discovery). Under Rule 26(b)(1), a party "may obtain discovery
regarding any matter, not privileged, which is: (i) relevant to the subject
matter involved in the pending action, ... and (ii) proportional to the needs
of the case." When a nonparty subpoena requires production of
electronically stored information that is privileged, is not relevant to the
subject matter of the litigation, or is disproportional to the needs of the
case, the nonparty may move for an order quashing the subpoena. See
Rule 45(c)(3)(A), Ala. R. Civ. P.
The first step in determining whether a trial court has
impermissibly allowed discovery requires this court to "determine the
particularized need for discovery, in light of the nature of the claim." Ex
parte Rowland, 669 So. 2d 125, 127 (Ala. 1995). The wife filed a
complaint seeking a divorce from the husband on the grounds of
incompatibility of temperament and an irretrievable breakdown of the
parties' marriage, an equitable division of the marital property, and an
award of periodic alimony. On March 22, 2022, during a hearing before
the trial court, the wife's counsel indicated that the wife would seek
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discovery of the electronically stored information on the husband's
cellular telephone to determine whether he had used the cellular
telephone in a manner that violated the orders of the trial court. After
the husband produced the cellular telephone to the wife for forensic
examination, her expert determined that the hard drive needed to be
rebuilt because it had sustained water damage. The expert stated in an
affidavit that, once the hard drive was rebuilt, he would need, among
other things, the password to the iCloud account to decrypt the data on
the hard drive.
The nonparty subpoena requires the law firm to produce the
password to the iCloud account without any limitation that it be used for
the purpose of decrypting the data in the cellular telephone. The
materials before the trial court and this court show that the iCloud
account contains more than just the electronic information that had been
stored on the cellular telephone. To the extent that the nonparty
subpoena provides the wife and her expert access to electronically stored
information beyond the data previously stored on the hard drive of the
cellular telephone, the wife has failed to show any particularized need for
that discovery.
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Furthermore, the wife did not closely tailor the request for
electronically stored information to the claims made in the divorce
proceedings. Assuming the wife was seeking information as to any
marital misconduct the husband may have committed to prove her claims
for alimony or property division, see Ex parte Drummond, 785 So. 2d 358,
363 (Ala. 2000) (recognizing that trial court may consider the fault of the
parties in causing the breakdown of the marriage when determining
property division and alimony even when the divorce is granted on
grounds of incompatibility), or any other misconduct that may form the
basis of a contempt claim for violating the orders of the trial court, the
wife did not request that the law firm produce that specific information.
The wife requested and was allowed the password to the iCloud account,
which gives her complete access to all electronically stored information
from the devices linked to that account regardless of the nature of the
data. In that respect, the request for the password to the iCloud account
was overly broad and disproportionate to the needs of the case, see Ex
parte Henry, 770 So. 2d 76, 80 (Ala. 2000) (approving of an order limiting
discovery that was overbroad and not closely tailored to the fraud claims
made in the complaint), and essentially authorizes the wife and her
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expert to embark on a fishing expedition throughout the law firm's iCloud
account without making a targeted request reasonably calculated to lead
to the discovery of admissible evidence. See Ex parte Baggett, 297 So. 3d
1168, 1175-76 (Ala. 2019) (issuing a writ of mandamus to quash nonparty
subpoenas "neither proportional to the needs of the case nor reasonably
calculated to lead to the discovery of admissible evidence").
The nonparty subpoena also impermissibly provides the wife access
to confidential communications protected from discovery by the attorney-
client privilege. The wife does not dispute that the law firm's iCloud
account contains confidential communications protected from discovery
by the attorney-client privilege. See Rule 26(b)(1) ("Parties may obtain
discovery regarding any matter, not privileged ....") (emphasis added); Ex
parte Alfa Ins. Corp., 284 So. 3d 891, 904 (Ala. 2019) ("It is well settled
that, absent some exception to the attorney-client privilege, '[t]he
contents of a confidential communication between an attorney and his
client are privileged and, thus, are not discoverable from either the
attorney or his client unless the privilege is waived by the client.' Ex
parte Alfa Mut. Ins. Co., 631 So. 2d 858, 859-60 (Ala. 1993)."). In her
answer to the husband's mandamus petition, the wife essentially
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concedes that, unless quashed or modified, the subpoena will give her
access to those privileged communications, although no client has waived
the attorney-client privilege and no exception to the privilege applies.
See Rule 502(d), Ala. R. Evid. (setting forth exceptions to privilege).
Rule 45(c)(3), Ala. R. Civ. P., provides, in pertinent part:
"(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
"....
"(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or
"(iv) subjects a person to undue burden."
(Emphasis added.) "Our supreme court has consistently held that the
word 'shall' is mandatory when used in a rule promulgated by that court."
Martin v. Martin, 637 So. 2d 901, 902 (Ala. Civ. App. 1994). In adopting
Rule 45(c)(3)(A), our supreme court intended that, when a nonparty
subpoena improperly requires disclosure of privileged information, a trial
court must either quash or modify the subpoena. See generally Crews v.
Jackson, 218 So. 3d 368, 372 (Ala. Civ. App. 2016) (holding that use of
the term "shall" in Rule 64B, Ala. R. Civ. P., evidences an intent that
courts must comply with the letter of the rule); see also Jordan v. 13 CL-2023-0811
Commissioner, Mississippi Dep't of Corr., 947 F.3d 1322, 1335 (11th Cir.
2020) (construing Rule 45(d)(3), Fed. R. Civ. P., the federal counterpart
to Rule 45(c)(3), Ala. R. Civ. P., as a mandatory provision requiring
federal district courts to quash or modify a nonparty subpoena in
enumerated circumstances).
Rule 510(b)(4), Ala. R. Evid., provides that "[a]n Alabama court may
order that the privilege or protection is not waived by disclosure
connected with the litigation pending before the court -- in which event
the disclosure is also not a waiver in any other Alabama proceeding." The
dissent argues that the law firm should not be entitled to mandamus
relief to avoid producing confidential attorney-client communications
because it has an adequate remedy in Rule 510(b)(4). We disagree.
Rule 510(b)(4) is patterned after Rule 502(d), Fed. R. Evid. See
Advisory Committee's Notes to Amendment to Rule 510 Effective October
1, 2013. Rule 502(d) applies only to unintentional disclosures of attorney-
client privileged information and protects a party who has voluntarily,
although inadvertently, disclosed such information from thereby waiving
the privilege in the underlying proceeding and any other federal
litigation. See Potomac Elec. Power Co. & Subsidiaries v. United States,
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107 Fed. Cl. 725, 731 (2012). Rule 502(d) does not provide a mechanism
for a federal court to compel a person to disclose attorney-client privileged
information by ordering that the disclosure shall not be considered a
waiver of the privilege. See Winfield v. City of New York, No. 15-cv-05236
(LTS) (KHP), May 10, 2018 (S.D.N.Y. 2018) (not reported in Federal
Supplement). The person withholding information that is allegedly
protected by the attorney-client privilege may not petition the court for
an order under Rule 502(d), but, if ordered to produce the information,
the remedy remains the traditional petition for a writ of mandamus. See
Logsdon v. BNSF Ry. Co., No. 8:15-CV-232, Apr. 19, 2017 (D. Neb. 2017)
(not reported in Federal Supplement). That persuasive authority
indicates that an order under Rule 510(b)(4) would not be appropriate in
this case.
Furthermore, we are not convinced that an order under Rule
510(b)(4) serves as an adequate remedy. The law firm seeks to prevent
the wife and her expert from accessing any confidential attorney-client
communications in the first instance. A Rule 510(b)(4) order of the type
contemplated by the dissent would require the law firm to produce those
communications, subject to an order providing that the disclosure shall
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not be treated as a waiver of the privilege. Nothing in the language of
Rule 510(b)(4) indicates that the rule is designed to dilute the attorney-
client privilege in this manner. If Rule 510(b)(4) could be used to require
the law firm to perform the very act of disclosure it seeks to avoid, that
rule presents no remedy at all. The law firm may obtain relief only
through a writ of mandamus compelling the trial court to protect the
attorney-client privileged information from being disclosed by
appropriately limiting the scope of the subpoena.
We conclude that the law firm has a clear legal right to the relief
afforded by Rule 45(c)(3)(A). Based on the mandatory language in Rule
45(c)(3)(A), the trial court had an imperative duty to either quash or
modify the nonparty subpoena. In this case, the trial court refused to
perform that duty by denying the law firm's motion to quash without
explanation and without modifying the subpoena to limit its scope or to
protect any privileged communications from disclosure. In Ex parte
Ocwen Federal Bank, FSB, 872 So. 2d at 813, our supreme court
recognized that, in these circumstances, the issuance of a writ of
mandamus constitutes the only adequate remedy.
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The law firm requests that this court issue a writ of mandamus
directing the trial court to quash the nonparty subpoena; however, Rule
45(c)(3)(A), although otherwise mandatory, does not provide that a trial
court must quash a subpoena in every case in which the subpoena
requires disclosure of irrelevant and privileged information. Instead,
the rule specifically provides that a trial court shall "quash or modify"
the subpoena. This court may only direct the trial court to comply with
Rule 45(c)(3)(A) by either quashing or modifying the subpoena. See
generally Ex parte W.Y., 605 So. 2d 1175, 1177 (Ala. 1992) (holding that,
in mandamus proceedings, a petitioner may seek to compel a trial court
to perform a mandatory duty, but the petitioner "may not compel a
particular result").
Conclusion
Based on the foregoing, we grant the petition for a writ of
mandamus, but we direct the trial court to follow Rule 45(c)(3)(A)(iii) by
either quashing or modifying the nonparty subpoena in accordance with
this opinion. Based on our disposition, we pretermit any discussion of
whether the trial court also abused its discretion in shortening the time
for the law firm to respond to the nonparty subpoena. The trial court
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may reconsider the deadline for compliance should it decide to modify
the nonparty subpoena.
PETITION GRANTED; WRIT ISSUED.
Moore, P.J., and Edwards, Fridy, and Lewis, JJ., concur.
Hanson, J., dissents, with opinion.
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HANSON, Judge, dissenting.
Because I would deny the petition for the writ of mandamus on the
basis of the availability of another adequate remedy, I respectfully
dissent from the main opinion. There is no indication that petitioner
Gene Warhurst, Jr., P.C. ("the law firm"), has sought an order from the
Baldwin Circuit Court ("the trial court") pursuant to Rule 510(b)(4), Ala.
R. Evid., under which the disclosure of information in the iCloud
electronic-data-storage account "connected with the litigation pending
before the court" 1 would expressly not effect a waiver of applicable
attorney-client privileges in the underlying proceeding or "any other
Alabama proceeding." It is well settled that a writ of mandamus will not
issue when the petitioner has another adequate remedy. See Ex parte
Fancher, 272 So. 3d 654, 657 (Ala. Civ. App. 2018), and Ex parte J.E.W.,
608 So. 2d 728, 729 (Ala. 1992).
1The attorney-client privilege, which belongs to the law firm's clients and not the law firm (see Rule 502(b), Ala. R. Evid.), is not waived by compelled disclosure, see Rule 511, Ala. R. Evid. Ergo, in my view, the trial court retains the authority to accelerate discovery in a manner that does not prevent subsequent assertion of potential applicable privileges, see Transamerica Computer Co. v. International Business Machines Corp., 573 F.2d 646 (9th Cir. 1978), nor reward the apparently deliberate destruction of the cellular telephone in question. 19