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In the Matter of Mendel (3/31/95) sp-4184
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501; (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of )
ALLISON E. MENDEL, ) Supreme Court No. S-5741
)
Regarding contempt citations ) O P I N I O N
issued in Bock v. Felbert, )
Superior Court No. )
3AN-92-4375 CI. ) [No. 4184 - March 31, 1995]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley, Judge.
Appearances: Susan Orlansky and Sandra
Saville, Alaska Civil Liberties Union,
Anchorage, for Appellant. Vincent Vitale,
Anchorage, for George W. Bock, Jr., Tiffany
Bock, and Christina Bock, Real Parties in
Interest.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, and Compton, Justices.
[Eastaugh, Justice, not participating.]
RABINOWITZ, Justice.
This case requires us to review the propriety of
contempt citations against Allison E. Mendel. Mendel, an
attorney, was held in contempt of court for her refusal to answer
numerous questions at an in-court deposition.
I. FACTS AND PROCEEDINGS
A. General Background
In Bock v. Bock, 824 P.2d 723 (Alaska 1992), we vacated
a superior court's custody award of Laura and George Bock's twin
daughters to their mother, Laura. In Bock, we held that because
Kentucky had retained jurisdiction over the custody matter, the
Alaska superior court was precluded from exercising jurisdiction
by the continuing jurisdiction provisions of the Parental
Kidnapping Prevention Act, 28 U.S.C. 1738A (1988). Id. at 725.
We also ordered the superior court to enforce a Kentucky decree
granting custody of the children to their father. Id. at 726.
Rather than turning over custody of the children to
their father, Laura went into hiding with the two girls.1 She
also brought suit in federal court against George and this court
seeking to set aside our order.2 Mendel represents Laura in this
federal litigation.
In May 1992 George commenced Bock v. Felbert, No. 3AN-
92-4375 CI (Alaska Super. filed May 19, 1992), in the superior
court at Anchorage. In this action George asserted various
claims for custodial interference in violation of AS 25.20.140,
common law interference with custodial rights, conspiracy to
interfere with custodial rights, the tort of outrage, conspiracy
to cause intentional infliction of emotional distress, false
imprisonment, and punitive damages. George's complaint names
Laura and ten other defendants who he alleges assisted Laura in
hiding the children. Mendel is not a named defendant in the
Felbert litigation.3
B. The Deposition
In February 1993, in the Felbert litigation, George
subpoenaed Mendel for the purpose of taking her deposition. The
subpoena also requested Mendel to bring with her numerous
documents in connection with her representation of Laura. Mendel
moved to quash the subpoena. After a hearing, the superior court
rejected Mendel's claims of privilege, relevancy, and that some
of the information was protected from disclosure by the First
Amendment. Accordingly, the court ordered her to attend the
deposition and produce the requested documents. Mendel appeared
for the deposition on April 15, 1993. She refused to answer
certain questions and refused to produce copies of her billing
records other than a copy of the billing headings. (The bills
Mendel proffered were redacted.) Mendel answered questions
regarding when she had last seen Laura in person and on other
matters not relevant to this appeal.
C. The Contempt of Court Rulings
George subsequently moved for an order requiring Mendel
to show cause why she should not be held in contempt for
violating the court's order by refusing to answer questions
during the deposition. The superior court entered an order to
show cause and a hearing was held. At George's request, the
superior court opted to continue Mendel's deposition in its
presence. At the show cause-deposition proceeding Mendel
answered numerous questions.4 During the course of the show
cause-deposition proceeding Mendel was held in contempt on five
separate occasions for her refusal to answer questions and was
ordered to produce specific documents. The questions at issue
are as follows:
(A) "Did you ever receive phone calls from
Laura Bock or to Laura Bock in which she gave
you authority to proceed on behalf of her in
federal court?"
Mendel agreed to answer questions as to when she had
last spoken to Laura, but refused to answer questions regarding
the content of any of their conversations. Through her attorney,
Mendel also asserted that the question had no relevance to any
issue in the Felbert litigation. The superior court held that
the attorney-client privilege did not apply to this "limited
question"and held Mendel in contempt for refusing to answer.
(B) "What words did Carolyn Johnson speak
that led you to believe she was Laura Bock's
representative?"
After being directed by the court to answer this
question, Mendel responded "I can't answer it on the basis of the
attorney-client privilege." She also objected because the
question wasn't material to any issue in the Felbert litigation.5
The superior court then ruled, "Very well. Again, I find you in
contempt."
(C) "Once you learned that you might have an
opportunity to talk to [a Representative of]
Street Stories, [a CBS television show,] did
you obtain authority from Laura Bock to speak
to the news media from New York?"
Mendel refused to answer this question. Her counsel
argued that it was not relevant to locating the children or any
issue in Felbert, and that it was protected by the attorney-
client privilege. The superior court directed Mendel to answer
the question. Mendel replied, "I can't answer the question based
on the attorney-client privilege." The superior court then
ruled, "Failure to answer is an act of contempt . . . ."
(D) "[S]tate the names of any people
reflected on the billing record with whom
you've had conversations concerning this
matter, excluding Carolyn Johnson and Laura
Bock."
Mendel's counsel instructed her not to answer the
question based on both the attorney-client privilege and the
attorney work product doctrine. The superior court then remarked
in part: "I think that this whole matter is probably better
served by taking a fairly broad view . . . . [T]he rules of
privilege and confidentiality have to be viewed in light of the
potential on-going felony and that's going to guide my rulings."
The court then required Mendel to answer the question. Mendel
refused based on the attorney-client privilege and the work
product doctrine. Mendel was found in contempt.
(E) "Produce[] . . . [your billing records
to Laura] in their entirety."
Mendel invited the superior court to review in camera
the unredacted billings she had brought to the hearing. The
superior court declined to review the billings in camera, stating
it's one of the vices of in-camera reviews,
not being intimately familiar with every
twist and turn that this case has or may take
. . . it's not automatically clear that, --
to me, that I'm going to recognize strict
relevance. So I'm going to produce them
. . . . [A]re there any use restrictions
[or] confidentiality orders you wish to have
me place on Mr. Vitale before I give them to
him?
Mendel objected to producing her entire billing records
on the basis that they contained narrative statements detailing
her legal representation of Laura and thus were protected by the
attorney-client privilege. Additionally, Mendel objected on the
ground that the records contained no information which was
relevant to the Felbert litigation or locating the children. The
superior court ordered Mendel to produce the billing records in
their entirety. However, the court stayed the order pending the
outcome of this appeal.
(F) "[I]dentify . . . anyone who purchased
Laura Bock T-shirts through your office."
Mendel argued that contributors to the Laura Bock
Defense Fund have a First Amendment right not to be identified.
Mendel's objection was overruled and she was held in contempt.
This appeal followed from the oral rulings of contempt.6
II. DISCUSSION7
A. Relevancy - Questions (A), (B), and (C)
Mendel argues that the answers to questions (A), (B),
and (C), each of which concerned whether Mendel had authorization
from Laura to represent her, could not possibly lead to the
discovery of the whereabouts of Laura or the children, nor were
they relevant to any issue in Felbert. If the discovery
questions were not relevant then Mendel "should not be subject to
indefinite incarceration for her failure to provide irrelevant
information."
Because this contempt citation arises out of the
failure to comply with a discovery request, our determination as
to whether the information sought is relevant is necessarily
guided by Alaska Civil Rule 26(b)(1). See Doe v. Superior Court,
721 P.2d 617, 620-21 (Alaska 1986); Hazen v. Municipality of
Anchorage, 718 P.2d 456, 460-61 (Alaska 1986). Civil Rule
26(b)(1) permits discovery of
any matter, not privileged, which is relevant
to the subject matter involved in the pending
action . . . . It is not ground for
objection that the information sought will be
inadmissible at the trial if the information
sought appears reasonably calculated to lead
to the discovery of admissible evidence.
Even under this broad view of relevancy, we are
convinced by Mendel's argument. The subject of Mendel's
authority to represent Laura is simply not relevant to any
inquiry George might pursue in relation to the Felbert
litigation. Nor do these questions appear reasonably calculated
to lead to the discovery of admissible evidence. Finally,
George provides no explanation as to the nexus between the
information sought and his efforts to locate his children.8 We
therefore hold that Mendel's convictions of contempt for her
failure to answer questions (A), (B), and (C) must be set aside.
See Hazen, 718 P.2d at 460-61 (reversing the trial court's
imposition of sanctions for failure to comply with discovery
order after concluding that information sought was irrelevant).
B. Attorney-Client Privilege - Questions (A), (B), and (C)
As indicated above, the superior court rejected
Mendel's claim of attorney-client privilege with respect to
questions (A), (B), and (C). On appeal, George does not contest
the applicability of the attorney-client privilege as to each
question.
Alaska Evidence Rule 503(b) provides in part:
A client has a privilege to refuse to
disclose and to prevent any other person from
disclosing confidential communications made for
the purpose of facilitating the rendition of
professional legal services to the client, (1)
between the client or the client's representative
and the client's lawyer or the lawyer's
representative . . . .
Evidence Rule 503(b) gives effect to the policy which
underlies the attorney-client privilege. As discussed in United
Services Automobile Ass'n v. Werley, 526 P.2d 28 (Alaska 1974),
"[t]he purpose of the attorney-client privilege is to promote the
freedom of consultation of legal advisors by clients by removing
the apprehension of compelled disclosure by the legal advisors."
Id. at 31 (footnote omitted). It is apparent that requiring
Mendel to answer questions (A), (B), and (C) would have required
disclosure of confidential communications made for the purpose of
facilitating the rendition of professional legal services to
Laura.
George takes the position that the privilege is
vitiated because Mendel's services "were sought, obtained or used
to enable or aid anyone to commit or plan to commit what the
client knew or reasonably should have known to be a crime or
fraud . . . ."9 In Munn v. Bristol Bay Housing Authority, 777
P.2d 188 (Alaska 1989), we noted:
In Werley, we ruled that the attorney-client
privilege cannot be used to protect
communications regarding the commission of a
crime or civil fraud occurring during or
after the establishment of the attorney-
client relationship. . . . The privilege can
be defeated if the party seeking to discover
communications between the attorney and the
client "present[s] prima facie evidence of
the perpetration of a fraud or crime in the
attorney-client relationship."
Id. at 195 (footnote omitted). The privilege only ceases to
exist for ongoing and future wrongdoing, not past wrongdoing.
Werley, 526 P.2d at 32. "[T]he privilege is designed to
encourage those who may have committed a prior wrong to seek
protection of their rights," which is why this court
distinguishes between past and ongoing or future wrongdoing.
Munn, 777 P.2d at 195. In essence, "[t]he attorney-client
privilege is not designed to encourage those planning to commit a
wrong to obtain legal assistance in their endeavor." Id.
Significantly, "[a]lthough the fraud or crime must have been
contemplated by the client at the time of the communication, it
is irrelevant whether the attorney was aware of the client's
purpose." Id. (citation omitted); see also 1 Charles T.
McCormick et al., McCormick on Evidence 95 (John W. Strong ed.,
4th ed. 1992). "Once a litigant has presented prima facie
evidence of the perpetration of a fraud or crime in the attorney-
client relationship, the other party may not then claim the
privilege as a bar to the discovery of relevant communications
. . . ."10 Werley, 526 P.2d at 32-33 (footnotes omitted).
In the case at bar, review of the record demonstrates
that George failed to establish a prima facie case of crime or
fraud in the attorney-client relationship which would abrogate
the privilege.11 We therefore hold that the superior court's
contempt rulings against Mendel based on her failure to answer
questions (A), (B), and (C) should be vacated on the additional
ground that the attorney-client privilege is applicable to each
question and the privilege was not lost under the crime/fraud
exception to the attorney-client privilege.12
C. Questions (D) and (E)
We next address the merits of the superior court's
order to produce Mendel's billing records in their entirety and
its contempt ruling for Mendel's refusal to "[s]tate the names of
any persons reflected on the billing records with whom [she] had
conversations concerning this matter, excluding Carolyn Johnson
and Laura Bock." Mendel argues that this information constitutes
attorney work product.13 As such, the superior court violated
Civil Rule 26(b)(3) by compelling production of her attorney work
product without adopting measures to assure that protected
information was not disclosed.
Alaska Civil Rule 26(b)(3) provides:
Trial Preparation: Materials. Subject to the
provisions of subdivision (b)(4) of this
rule, a party may obtain discovery of
documents and tangible things otherwise
discoverable under subdivision (b)(1) of this
rule and prepared in anticipation of
litigation or for trial by or for another
party or by or for that other party's
representative (including the other party's
attorney, consultant, surety, indemnitor,
insurer, or agent) only upon a showing that
the party seeking discovery has substantial
need of the materials in the preparation of
the party's case and that the party is unable
without undue hardship to obtain the
substantial equivalent of the materials by
other means. In ordering discovery of such
materials when the required showing has been
made, the court shall protect against
disclosure of the mental impressions,
conclusions, opinions or legal theories of an
attorney or other representative of a party
concerning the litigation.
(Emphasis added.)
As provided in the rule, discovery of an attorney's
work product may be had under Rule 26(b)(3), but the court has a
mandatory duty to protect against disclosures of the "mental
impressions, conclusions, opinions or legal theories" of the
litigating attorney. Mendel argues that the names contained in
her billing records to Laura and the detailed billings consisting
of narrative descriptions would afford George insight into
Mendel's handling of Laura's case.
In interpreting the analogous Federal Rule of Civil
Procedure, the United States Supreme Court held that work product
which reflects an attorney's thought processes should be
disclosed only in rare situations, and should not be disclosed
simply upon a showing of substantial need and inability to obtain
the equivalent without undue hardship. Hickman v. Taylor, 329
U.S. 495, 510-12 (1947). On the other hand, according to
Professor Moore, a litigant may generally seek the "identity and
location of persons having knowledge of any discoverable matter"
without violating the work product doctrine or the attorney-
client privilege. 4 James W. Moore et al., Moore's Federal
Practice, 26.57[2] (2d ed. 1993).
Here, Mendel proposed a compromise which would disclose
the names of those individuals who might have knowledge of
discoverable matter without revealing Mendel's litigation
strategies. Mendel offered her unredacted billing records to the
superior court for in camera review. However, the superior court
declined this offer and instead ordered production of the billing
records.
On this record we hold that the superior court abused
its discretion in declining to conduct an in camera review of the
unredacted billing records. See Federal Savings & Loan Ins. Co.
v. Ferm, 909 F.2d 372, 374 (9th Cir. 1990) (in camera review by
court is a method of protecting attorney thought processes and
confidential communications from intrusions). We therefore hold
that the contempt adjudication against Mendel for her failure to
answer question (D) and the order to produce the unredacted
billing records must be vacated and set aside.
For future reference in other similar cases, we note
here the appropriate procedure for the superior court to follow
in conducting its in camera review. The trial judge should
redact the attorney's mental impressions, conclusions, opinions
or legal theories as well as any privileged attorney-client
communications which are unrelated to the subject matter of the
litigation. The court should then give the attorney the
opportunity to examine the redacted records and make any
arguments as to why any of the unredacted material is subject to
the absolute privilege discussed in Rule 26(b)(3). Only at this
point should the relevant, unprivileged information be produced.
D. Question (F)
Question (F) required Mendel to "[I]dentify . . .
anyone who purchased Laura Bock T-shirts through your office."
Mendel asserts that "people who contributed to a political cause,
such as the Laura Bock Defense Fund, have a protected First
Amendment interest in their association and should not be subject
to having their names disclosed absent a compelling competing
interest." Mendel additionally argues that the superior court
erred by not conducting a "more thoughtful analysis of the
competing interests" and that "[t]he likelihood that T-shirt
purchasers had information relevant to Laura Bock's location was
so small it did not justify denying contributors their First
Amendment privacy rights."
George counters that the T-shirt purchasers are
relevant to his search for the children; that they had no
expectation of privacy; that through their purchase, they aided
Laura in her crime; that the purchases were not speech and even
if they were, they were commercial speech entitled to lesser
protection; that no rights of association exist because the
underlying activity is unlawful; and that his need for their
names is compelling and should outweigh any constitutional
interests of the T-shirt purchasers.14
The right to associate is a fundamental right protected
by the First Amendment and the due process clause of the
Fourteenth Amendment. NAACP v. Alabama ex rel. Patterson, 357
U.S. 449, 460 (1958). The United States Supreme Court has
recognized "the vital relationship between freedom to associate
and privacy in one's associations,"and has noted that compelled
disclosure of membership lists of advocacy groups effectively
restrains freedom of association. Id. at 461-62.
Mendel correctly argues that the T-shirt purchasers are
members of a group or association protected by the First
Amendment. A federal appellate court has held that contributors
to a "Voluntary Fund"established by a trade union were entitled
to First Amendment protection after focusing on the Fund's
activities. Brock v. Local 375, Plumbers Int'l Union of Am., 860
F.2d 346, 349 (9th Cir. 1988). The court held that use of the
Fund for "scholarships, charitable contributions, and political
purposes," was protected by the First Amendment. Id. at 349.
Likewise, supporting the legal action of Laura is lawful speech
entitled to protection under the First Amendment. Simply because
the purchaser received a T-shirt does not convert the right of
association implicated into a mere commercial relationship, as
suggested by George.15
We reject George's argument that no right of
association exists because the purpose of the underlying activity
was "unlawful." T-shirt purchasers neither furthered Laura's
crime nor conspired to interfere with George's custodial rights
by the simple act of purchasing a T-shirt or contributing to the
Laura Bock Legal Defense Fund. According to Mendel, proceeds
from T-shirt sales were deposited into her general client trust
account. Laura never received any of this money, so she could
not have used it to finance her flight. Presumably, T-shirt
purchasers either sought the T-shirt for its message or sought to
subsidize the lawful pursuit of a legitimate federal action, or
both. Neither activity is unlawful.
This brings us to the final aspect of this issue.
Federal courts have held that when lists of names protected by
the First Amendment must be disclosed, the court must take steps
to minimize infringement of the members' First Amendment rights.
Brock, 860 F.2d at 350; Savola v. Webster, 644 F.2d 743, 746-47
(8th Cir. 1981). We have endorsed in camera review as an
appropriate means for protecting privacy interests by exclusion
of prejudicial and irrelevant information. Jones v. Jennings,
788 P.2d 732, 739 (Alaska 1990).
Once again, for future reference, we note here several
alternative procedures which the superior court could have
employed to discern between the names of persons who contributed
to the Laura Bock Legal Defense Fund and were in possession of
relevant information, and those persons whose names should not
have been disclosed. First, Mendel suggests that in an in
camera, ex parte interrogation, the superior court could have
asked her if she recalled which T-shirt purchasers-contributors
were Laura's acquaintances, and which were Mendel's friends and
associates. Second, Mendel suggests that the superior court
could have directed George to develop a short questionnaire for
Mendel to distribute to the T-shirt purchasers for them to answer
at the request of the superior court. "If the purchasers stated
they did not know [Laura] and had no information as to her
whereabouts, there would be no need to disclose the names to
[George]. If a particular purchaser indicated he or she did have
information relevant to [Laura's] current whereabouts, then
arguably [George's] interest in that information would outweigh
that particular purchaser's privacy interests, and that name
should be disclosed." Another approach would have the superior
court, in its in camera, ex parte questioning of Mendel, obtain
from her the names of all T-shirt purchasers of whom she is
aware. The superior court could have then examined these persons
in camera to ascertain what information they possessed, if any,
concerning the whereabouts of Laura and the two children.
In short, it is within the sound discretion of the
superior court to devise measures to minimize any infringement of
the T-shirt purchasers' First Amendment associational rights.
However, in light of the superior court's failure to undertake
any measures to minimize the potential infringement of the T-
shirt purchasers' First Amendment rights we conclude that the
superior court's decision to hold Mendel in contempt for her
failure to identify purchasers of the T-shirts must be vacated
and set aside.
III. CONCLUSION
Mendel's contempt convictions for her refusal to answer
questions (A), (B), (C), (D), and (F) are reversed, vacated, and
set aside.16 The superior court's order requiring Mendel to turn
over her unredacted billing records is also reversed, vacated,
and set aside. Any such records which are currently in the
superior court's possession should be returned to Mendel.
_______________________________
1 On approximately the date when this court's
opinion in Bock v. Bock was published, Mendel became Laura's
attorney for purposes of regaining legal custody of the children.
Mendel is still counsel for Laura.
2 In this federal suit Laura contends that the
continuing jurisdiction provisions violate the due process clause
of both the Fifth and Fourteenth Amendments.
3 Following oral argument on this case, Laura and
the children were located and the children were placed in
George's custody. Additionally, Judge Souter dismissed the
Felbert case pursuant to Alaska Civil Rule 16.1(g). The Felbert
case is currently on appeal before this court. Bock v. Felbert,
No. 3AN-92-4375 CI (Alaska Super. Dec. 8, 1994), appeal docketed,
No. S-6819 (Jan. 5, 1995).
Thereafter, Mendel filed a motion to dismiss this
appeal as moot. This appeal is not moot. So long as a court has
proper jurisdiction, the court may punish an individual for
contempt even if the underlying action is later dismissed. See
Weidner v. State, 764 P.2d 717, 721 (Alaska App. 1988) ("A person
may be punished for criminal contempt for violating a court's
orders even if those orders are later found invalid.").
4 In her brief, Mendel described her testimony at the
show cause-deposition proceeding as follows:
Ms. Mendel testified that, to the best
of her recollection, her last telephone
communication from Ms. Bock was in
approximately September or October, 1992.
She reiterated that she had not seen Ms. Bock
since early February, 1992, and she had never
known where Ms. Bock was or how to contact
her. She testified that, in their first
meeting, Ms. Bock did not indicate she
intended to hide the children from her ex-
husband.
Ms. Mendel testified that she receives
instructions about her representation orally
from Ms. Bock when Ms. Bock calls her. She
testified that Laura Bock has no
"spokesperson."
Ms. Mendel testified that she considers
Carolyn Johnson an agent or representative of
Laura Bock, primarily because Ms. Johnson
pays the legal bills for Ms. Mendel's
representation of Laura Bock.* Additionally,
Ms. Mendel testified, she has an attorney-
client relationship with Ms. Johnson, apart
from her status as representative or agent
for Ms. Bock. Ms. Mendel testified that she
has never known whether Ms. Johnson knew how
to communicate with Ms. Bock. There is no
one other than Ms. Johnson and other
attorneys who have represented Ms. Bock whom
Ms. Mendel considers to be an agent or
representative of Ms. Bock.
__________
* Ms. Johnson's association with . . . [Ms.
Bock] was well known to Mr. Bock before the
deposition.
(Footnote in original) (record citations omitted).
5 Mendel did not raise the relevance objection when asked
this specific question at the hearing. She did, however, argue
that this line of questioning was immaterial in her written
Response to Motion for Order to Show Cause filed on May 7, 1993.
6 Alaska Civil Rule 90(a) requires that the court sign
and enter an order of contempt, reciting the requisite facts.
7 Determining whether categories of information are
attorney-client privileged or work product is a question of law
determined de novo. Langdon v. Champion, 752 P.2d 999, 1001
(Alaska 1988). Whether information is protected by the First
Amendment presents a constitutional question which is also
determined de novo. See ARCO Alaska, Inc. v. State, 824 P.2d
708, 710 (Alaska 1992); see also Beard v. Baum, 796 P.2d 1344,
1351-52 (Alaska 1990).
Generally, this court reviews discovery orders under a
deferential abuse of discretion standard. Jones v. Jennings, 788
P.2d 732, 735 (Alaska 1990). However, whether the superior court
weighed appropriate factors is a legal question to which this
court applies its independent judgment. See Hayes v. Xerox
Corp., 718 P.2d 929, 941 (Alaska 1986); Munns v. Volkswagenwerk,
A.G., 539 P.2d 1180, 1181 (Alaska 1975).
Determining relevancy is within the trial court's
discretion. Doe v. Superior Court, 721 P.2d 617, 620 (Alaska
1986). This court will reverse a grant of discovery attacked on
relevancy grounds "only if the information sought could not
reasonably be expected to lead to the discovery of admissible
evidence." Doe, 721 P.2d at 620-21.
8 As noted supra note 3, the children have been found and
are currently in the custody of their father. However, we judge
the relevance of the information sought, and hence the propriety
of the contempt citation, based on the factual circumstances at
the time of the superior court's ruling.
9 Alaska R. Evid. 503(d)(1).
10 "A prima facie case is one in which the evidence in
one's favor is sufficiently strong for his opponent to be called
on to answer it. This definition can be rephrased as requiring
that the evidence in favor of a proposition be sufficient to
support a finding in its favor, if all the evidence to the
contrary be disregarded." Werley, 526 P.2d at 32 n.15.
11 We note that the record is devoid of any finding by the
superior court that a prima facie case of crime or fraud in the
attorney-client relationship had been established.
12 George cites several similar cases from other
jurisdictions in support of his argument that the crime/fraud
exception applies. George cites Bersani v. Bersani, 565 A.2d
1368 (Conn. Super. 1989); Jafarian-Kerman v. Jafarian-Kerman, 424
S.W.2d 333 (Mo. App. 1967); In the Matter of Jacqueline F., 391
N.E.2d 967 (N.Y. App. 1979); and Dike v. Dike, 448 P.2d 490
(Wash. 1968). Although each of these cases also involves a
parental or guardian kidnapping, each is distinguishable from the
instant case. In each case, the attorney was compelled against
his/her will to divulge the address of the client. In the
instant case, Mendel has acknowledged that she would have to
divulge Laura's location if she knew where Laura was or the name
of anyone she knew who knew Laura's location. Mendel stated, "I
don't know those things, and I have never wanted to know those
things. And I've been very clear with everyone that if they tell
me I will tell."
13 While only question (E) required production of
documents and the work product doctrine applies only to
documents, Mendel makes a compelling argument for applying the
work product doctrine to question (D). By requesting Mendel to
read from her records, counsel for George was essentially asking
her to produce the document.
14 While Mendel concedes that the T-shirt purchaser's
names may be discovered, she argues that the superior court
failed to weigh all the relevant factors before ordering
disclosure. Although the precise formulation of the balancing
tests used by each of the federal circuits varies, the factors
considered by federal courts in determining whether to permit
discovery of First Amendment-protected lists of names include
(1) whether the information sought can be
obtained from alternative sources;
(2) whether the party seeking the
information has made reasonable efforts to
obtain the information from other sources;
and
(3) whether the information requested is
truly essential to the party's preparation or
defense of the lawsuit.
E.g., Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir.
1987); International Union, United Auto., Aerospace and Agric.
Implement Workers of Am. and its Locals 1093, 558 and 25 v.
National Right to Work Legal Defense and Educ. Found., Inc., 590
F.2d 1139, 1152 (D.C. Cir. 1978).
15 George claims that the T-shirt purchasers were not
engaged in political speech, and were not promoting social,
economic, educational, religious or cultural ends. This argument
has no merit. George also argues that no right of association
exists because the purchasers did not have a highly personal
relationship. While highly personal relationships are
constitutionally protected in one line of United States Supreme
Court decisions, such a relationship is not a prerequisite for
protection of the right to associate based upon the First
Amendment. See Roberts v. United States Jaycees, 468 U.S. 609,
617-18 (1984). Therefore, this argument is inapposite.
16 Judge Souter's dismissal of the underlying action,
supra note 3, is relevant to our disposition of this case since
discovery in the underlying action is no longer necessary.
Rather than remanding the case to permit further discovery
regarding questions (D), (E), and (F) consistent with this
opinion, we simply vacate and set aside the contempt convictions
and the order.
Additionally, we note that in issuing its contempt
citations, the trial court stated, "[T]he rules of privilege and
confidentiality have to be viewed in light of the potential on-
going felony and that's going to guide my rulings." Should
George be successful in his appeal of the dismissal of the
Felbert case and pursue discovery on these matters, nothing in
this opinion should be read to prevent the trial court from
reconsidering its earlier decision in light of the changed
circumstances.
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