Summary
The Louisiana Third Circuit Court of Appeal considered whether a nonparty could be compelled to produce invoices for attorney fees and costs paid on behalf of a parent in a child-support modification proceeding. The court held that the invoices should be produced to the trial court for in camera review to determine whether they contain privileged communications and are discoverable, but reversed the requirement that redacted copies be provided to the opposing party before that determination. The matter was affirmed in part, reversed in part, and remanded with instructions.
Topics
Practice areas
Questions Presented
- Whether attorney-fee invoices paid by a nonparty on behalf of a parent in a child-support modification proceeding may be ordered produced for in camera inspection when they may lead to evidence concerning the parent's income.
- Whether the trial court erred by ordering redacted copies of the invoices to be produced to the requesting party before determining whether the invoices contain attorney-client-privileged communications.
- Whether the nonparty's status and asserted concerns about harassment, undue burden, or expense required the subpoena to be quashed or limited.
Holdings
- The trial court did not abuse its discretion by ordering Burton Zaunbrecher to produce the attorney-fee invoices to the court for in camera inspection. The invoices could reasonably lead to admissible evidence concerning Sarah Zaunbrecher's income in the child-support modification proceeding, including whether payments constituted recurring monetary gifts or other benefits.
- The trial court erred by ordering Burton Zaunbrecher to provide Simon with redacted copies of the invoices before the court reviewed the invoices and determined whether they were protected by the attorney-client privilege.
- A nonparty's status does not categorically prevent discovery of records that are relevant or reasonably calculated to lead to admissible evidence, but discovery must be limited when justice requires protection from annoyance, embarrassment, oppression, undue burden, or expense.
Key quotations
“An appellate court must balance the information sought in light of the factual issues involved and the hardships that would be caused by the court’s order when determining whether the trial court erred in ruling on a discovery order.” (at 3)
“Without reviewing Mr. Zaunbrecher’s invoices, the trial court cannot determine whether they constitute privileged attorney-client communications and/or whether justice requires that some modification or limitation of the discovery requests should be implemented to protect Mr. Zaunbrecher.” (at 8)
Factual background
Scottie Simon and Sarah Didier Zaunbrecher are the parents of a child born June 8, 2017, and Simon was established as the child's father through paternity testing. Sarah sought modification of child support, and Simon alleged that payments by Sarah's former husband, Burton Zaunbrecher, for her legal fees and costs could constitute income or recurring monetary gifts and could bear on an allegation that she was underemployed. Simon subpoenaed Burton for attorney invoices, and the trial court ordered their production for review.
Procedural history
Sarah Zaunbrecher filed a rule to modify child support, placing the parties' income at issue. Scottie Simon subpoenaed Burton Zaunbrecher for invoices reflecting legal fees and costs he had paid for Sarah. The trial court ordered Burton to produce unredacted invoices for in camera review and redacted copies to Simon; the court of appeal affirmed the discovery ruling in part, reversed the premature production of redacted copies, and remanded with instructions.
Remand instructions
Burton Zaunbrecher must produce the invoices for his attorney fees and costs to the trial court for in camera inspection and a determination whether they are protected from discovery by the attorney-client privilege. The trial court must recall its order requiring redacted copies to be provided to Scottie Simon before the privilege and discoverability determination.