Tucker v. Scrushy

66 So. 3d 750, 2011 WL 49813
CourtSupreme Court of Alabama
DecidedJanuary 7, 2011
Docket1090445
StatusPublished
Cited by1 cases

This text of 66 So. 3d 750 (Tucker v. Scrushy) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tucker v. Scrushy, 66 So. 3d 750, 2011 WL 49813 (Ala. 2011).

Opinions

SHAW, Justice.

The plaintiffs below, Wade Tucker; the Wendell H. Cook, Sr., Testamentary Trust; John P. Cook; and HealthSouth Corporation (“the petitioners”), petition this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order in favor of the law firm of Parkman, Adams & White, LLC (“Parkman”), quashing a subpoena seeking the production of documents and records held by Parkman reflecting payments made by or on behalf of Richard Scrushy.1 We grant the petition and issue the writ.

[752]*752 Facts and Procedural History

On June 18, 2009, the Jefferson Circuit Court entered a judgment in favor of the petitioners and against Scrushy in the amount of $2,876,108,000. The petitioners, in an attempt to collect on the judgment and to discover assets held by Scrushy, filed a notice of intent to serve a subpoena on Parkman, which had previously represented Scrushy in various criminal and civil matters. The subpoena sought production of documents and records reflecting payments to Parkman by or on behalf of Scrushy, amounts held in trust relating to Scrushy, and documents evidencing payments received by Parkman for legal services rendered to Scrushy. The subpoena explicitly excluded attorney work-product and materials protected by the attorney-client privilege.

Parkman filed a motion to quash the subpoena, asserting that the information requested was privileged, irrelevant, and immaterial and that the production of it would be unduly burdensome. The subpoena was not issued. See Rule 45(a)(3)(B), Ala. R. Civ. P.2 Scrushy filed no objection to the subpoena. After a hearing, the trial court entered an order granting the motion to quash the subpoena. The petitioners timely filed this petition seeking a writ of mandamus directing the trial court to vacate its order.

Standard of Review

“Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.” Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (citing Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991)). “Accordingly, mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.” Ex parte Ocwen, 872 So.2d at 813.

“A writ of mandamus is an extraordinary remedy, and 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).

Discussion

In the trial court, Parkman objected to the subpoena, arguing that the request sought material that was privileged, personal and confidential, irrelevant, and immaterial to the collection of the plaintiffs’ judgment against Scrushy and that the production of the material would be unduly burdensome. The materials before this Court contain no substantiation for these arguments. Furthermore, Parkman has not filed an answer or brief in this Court in support of its position below or in support of the trial court’s decision.

A.

First, the petitioners argue that Parkman failed to prove in the trial court [753]*753that the “financial arrangement between attorney and client is privileged, personal and confidential information.” The party asserting the attorney-client privilege bears the burden of establishing that the privilege attaches to the documents requested. Lynch v. Hamrick, 968 So.2d 11, 14 (Ala.2007); Ex parte DCH Reg’l Med. Ctr., 683 So.2d 409, 412 (Ala.1996). “The burden is on the party asserting the attorney/client privilege to establish the existence of ... facts demonstrating the claim of privileged information.” 683 So.2d at 412.

Parkman presented no argument in the trial court or in this Court demonstrating that the information was privileged. However, even if Parkman had presented an argument in support of its assertion, it is clear that, generally, “[b]ank records of receipts and disbursements in lawyers’ trust accounts are not privileged communications.” Ex parte Clark, 630 So.2d 493, 497 (Ala.Crim.App.1993). Further, the United States Court of Appeals for the Tenth Circuit has noted:

“The maintenance of checking accounts is not shown to have any relevance to any communications made in confidence between a lawyer and client for the purpose of obtaining legal advice. A client may not immunize his business transactions from discovery by the device of a lawyer’s commercial checking account.”

Securities & Exch. Comm’n v. First Sec. Bank of Utah, N.A., 447 F.2d 166, 167 (10th Cir.1971). See also 2 Charles W. Gamble, McElroy’s Alabama Evidence § 392.02 (6th ed. 2009) (“The attorney-client privilege generally does not exempt the attorney from testifying to the fact of the attorney’s employment, the name of the person so employing and the terms of the employment. This general rule includes disclosure of the fee arrangement.” (footnotes omitted)), and In re Grand Jury Proceedings in re Freeman, 708 F.2d 1571, 1575 (11th Cir.1983) (“[I]nformation regarding a fee arrangement and the identity of the person paying the fee falls outside the protection of the attorney-client privilege.”).

Parkman did not show that the information requested was privileged or that it contained any communication that could be considered protected by the attorney-client or attorney-work-product privilege. Therefore, the petitioners have demonstrated that Parkman failed to meet its burden in the trial court of showing that the requested material was protected by the attorney-client privilege. Without such a showing by Parkman, the trial court exceeded its discretion by determining that the requested information was privileged.3

B.

Parkman argued in the trial court that the requested documents were irrelevant and immaterial to the collection of the judgment against Scrushy. “In order for the matter to be discoverable, the information sought must also be relevant.” Zaden v. Elkus, 881 So.2d 993, 1005 (Ala.2003). “ ‘ “Relevancy,” as used in our discovery rules, means relevant to the subject matter of the action; evidence is relevant if it affords a reasonable possibility that the information sought will lead to other evidence that will be admissible. Ex parte Dorsey Trailers, [Inc., 397 So.2d 98 (Ala.1981) ]; Drewes v. Bank of Wadley, 350 So.2d 402 (Ala.1977); 8 Wright and Miller, Federal Practice and Procedure § 2008 [754]*754(1970).”’ Zaden, 881 So.2d at 1005-06 (quoting Plitt v. Griggs, 585 So.2d 1317, 1321 (Ala.1991)). Under Rule 26(b)(1), Ala. R. Civ. P., “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ... including the existence, description, nature, custody, condition and location of any books [or] documents.” In

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66 So. 3d 750, 2011 WL 49813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tucker-v-scrushy-ala-2011.