Schropp Indus. v. Washington Cty. Atty.'s Ofc.
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Schropp Industries, Inc., doing business as PK
Manufacturing Corp. and R & C Properties,
a Nebraska L.L.C., appellee, v. Washington
County Attorney’s Office, appellant.
State of Nebraska ex rel. Washington County Attorney’s
Office, relator, v. Honorable Mary C. Gilbride, Judge,
District Court for Washington County, Nebraska,
and Schropp I ndustries, I nc., doing business as PK
Manufacturing Corp. and R & C Properties,
a Nebraska L.L.C., respondents.
___N.W.2d___
Filed February 25, 2011. Nos. S-10-361, S-10-831.
1. Evidence: Appeal and Error. Generally, the control of discovery is a matter for
judicial discretion, and decisions regarding discovery will be upheld on appeal in
the absence of an abuse of discretion.
2. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
3. Mandamus: Appeal and Error. While the Nebraska Supreme Court will issue
a writ of mandamus upon a proper showing by a relator, mandamus lies only to
enforce the performance of a mandatory ministerial act or duty and is not available to control judicial discretion.
4. Pretrial Procedure: Final Orders: Attorney and Client: Appeal and Error. An
interlocutory discovery order compelling the production of documents for which
a claim of privilege is asserted can be adequately reviewed on appeal from a final
judgment and, thus, is appealable neither as a final order nor under the collateral
order doctrine.
5. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), an order is final for purposes of appeal if it affects a substantial right and
(1) determines the action and prevents a judgment, (2) is made during a special
proceeding, or (3) is made on summary application in an action after judgment
is rendered.
6. ____: ____. A substantial right is not affected during a special proceeding, for
purposes of appeal, when that right can be effectively vindicated in an appeal
from the final judgment.
7. Pretrial Procedure: Final Orders: Appeal and Error. An order granting discovery from a nonparty in an ancillary proceeding is not a final, appealable order.
8. Mandamus. A court issues a writ of mandamus only when (1) the relator has
a clear right to the relief sought, (2) a corresponding clear duty exists for the
respondent to perform the act, and (3) no other plain and adequate remedy is
available in the ordinary course of law.
9. Mandamus: Proof. In a mandamus action, the party seeking mandamus has the
burden of proof and must show clearly and conclusively that such party is entitled
10.
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14.
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to the particular thing the relator asks and that the respondent is legally obligated
to act.
Mandamus: Pretrial Procedure: Appeal and Error. In determining whether
mandamus applies to a discovery issue, the Nebraska Supreme Court considers
whether the trial court clearly abused its discretion in not limiting the scope of
the discovery.
Pretrial Procedure: Attorney and Client: Affidavits: Proof. In response to a
motion to compel production, the asserting party must make out a prima facie
claim that the privilege or doctrine applies. In order to fulfill this burden, the
asserting party must submit a motion for protective order, in affidavit form, verifying the facts critical to the assertion of the privilege or doctrine. The motion
for protective order must (1) verify that it accurately describes each of the documents in question; (2) list the documents and provide a summary that includes (a)
the type of document, (b) the subject matter of the document, (c) the date of the
document, (d) the author of the document, and (e) each recipient of the document;
and (3) state with specificity, in a nonconclusory manner, how each element of
the asserted privilege or doctrine is met, to the extent possible, without revealing
the information alleged to be protected.
Mandamus. A party requesting allegedly privileged material must be given a full
and fair opportunity to respond to a motion for protective order. Then, if the district court determines that the party asserting the privilege or doctrine has failed
to make out a prima facie claim, it shall order the asserting party to produce the
documents. Conversely, if the district court determines that the asserting party has
made out a prima facie claim, then it shall (1) order the alleged protected material
produced to the court, (2) order the asserting party to submit an index directing
the court to the specific portions of each of the listed documents that allegedly
constitute protected material, (3) privately review the material outside the presence of all counsel, (4) make a determination of whether the material is protected,
and (5) seal the material for purposes of appellate review.
Mandamus: Appeal and Error. In considering whether to grant a writ of mandamus, the Nebraska Supreme Court considers whether the duty to be enforced
was one which existed at the time the petition was filed.
Mandamus: Courts. A request for relief first presented in a mandamus action
will be disregarded inasmuch as the district court cannot have failed to perform
an act which was not submitted to it for disposition.
Petition for further review in No. S-10-361 from the Court of
Appeals, Inbody, Chief Judge, and Moore and Cassel, Judges,
on appeal thereto from the District Court for Washington
County, Mary C. Gilbride, Judge. Judgment of Court of
Appeals affirmed. Original action in No. S-10-831. Peremptory
writ denied.
Shurie R. Graeve, Washington County Attorney, and Edmond
E. Talbott III for appellant-relator.
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Michael F. Coyle, Paul M. Shotkoski, and Elizabeth A.
Culhane, of Fraser Stryker, P.C., L.L.O., for appellee-respondent
Schropp Industries, Inc.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
Gerrard, J.
In these consolidated cases, the Washington County Attorney’s
office challenges an order of the Washington County District
Court entered in an ancillary discovery proceeding enforcing
compliance with a subpoena issued on behalf of a Douglas
County court. The county attorney claims that the documents
sought by the subpoena are privileged and that the court erred in
ordering their production. But the threshold question presented
here is what procedure should be followed to secure appellate
review of an order granting ancillary discovery—entered by the
district court in the county in which the subpoena was served,
but issued on behalf of a court in a different county.
I. Background
Schropp Industries, Inc. (Schropp), owns a facility in
Washington County that was damaged in a fire. Schropp’s
insurer, Sentry Insurance Company (Sentry), denied coverage,
based largely on its conclusion that the fire had been caused
by a criminal act of the insured. So, Schropp sued Sentry in
Douglas County.
The Washington County Sheriff’s Department and the county
attorney had conducted an investigation into the fire, and
Schropp believed that the county attorney had received information from Sentry as part of the investigation. Schropp wanted
access to that information, so, in the Douglas County case,
Schropp subpoenaed the records of the Washington County
investigation. The county attorney objected and refused to produce the documents, asserting (at least in part) that the information was privileged by Nebraska’s Arson Reporting Immunity
Act. So, Schropp filed a motion to enforce the subpoena in
See Neb. Rev. Stat. § 25-1273 (Reissue 2008).
See Neb. Rev. Stat. §§ 81-5,115 to 81-5,131 (Reissue 2008).
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the district court for Washington County. The county attorney
argued that it was improper to bring the enforcement action in
Washington County, that the documents were privileged under
the Arson Reporting Immunity Act, and that Schropp had no
authority to compel production of investigative reports in an
ongoing criminal investigation.
Following a hearing, the district court stayed the enforcement
proceeding to permit the county attorney to apply for intervention in the Douglas County case. But the motion to intervene in
the Douglas County case was apparently denied, so the district
court lifted the stay, and conducted an in camera review of the
documents. The district court found that there was “no generic
privilege which attaches to these documents” under the provisions of the Arson Reporting Immunity Act. The district court
rejected the county attorney’s claim that the records were privileged and ordered her to produce the documents.
The county attorney appealed to the Nebraska Court of
Appeals. The Court of Appeals summarily dismissed the appeal,
based upon previous cases in which a party had tried to appeal
from a discovery order. The county attorney filed a petition for
further review and petitioned this court for a writ of mandamus
ordering the district court to vacate the order. We issued an
alternative writ of mandamus, and after receiving the district
court’s answer, we granted the petition for further review and
consolidated the appeal, case No. S-10-361, with the mandamus case, No. S-10-831, for briefing and oral argument.
II. Assignments of error
In her petition for further review, the county attorney assigns
that the Court of Appeals erred (1) in concluding that the decision of the trial court was not a final order for purposes of
appeal and finding that her remedy was a mandamus action in
this court. In her consolidated brief, the county attorney also
See Neb. Ct. R. Disc. § 6-334(A)(c)(2)(B).
See, e.g., Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006);
Brozovsky v. Norquest, 231 Neb. 731, 437 N.W.2d 798 (1989).
See State ex rel. Acme Rug Cleaner v. Likes, 256 Neb. 34, 588 N.W.2d 783
(1999).
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assigns that the district court erred in failing to (2) provide her
with procedural due process and (3) find that the subpoenaed
information was not protected from discovery.
III. Standard of Review
[1-3] Generally, the control of discovery is a matter for
judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion.
But a jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law.
And while this court will issue a writ of mandamus upon a
proper showing by a relator, mandamus lies only to enforce the
performance of a mandatory ministerial act or duty and is not
available to control judicial discretion.
IV. Analysis
In each of these consolidated cases, the county attorney is
seeking appellate review of an order entered in an ancillary
discovery proceeding, undertaken in one court to aid litigation pending in another court. Ancillary discovery is commonly undertaken in other jurisdictions,10 and is authorized
in Nebraska by § 6-334(A)(c)(2)(B), which provides that if a
person served with a subpoena objects, “the party for whom the
subpoena was issued may, upon notice to all other parties and
the person served with the subpoena, move at any time in the
district court in the county in which the subpoena is served for
an order to compel compliance with the subpoena.” The first
question we consider is whether an order granting discovery in
an ancillary proceeding is appealable.
10
Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d
260 (2010).
Wright v. Omaha Pub. Sch. Dist., 280 Neb. 941, 791 N.W.2d 760 (2010).
See, State ex rel. Parks v. Council of City of Omaha, 277 Neb. 919, 766
N.W.2d 134 (2009); State ex rel. AMISUB v. Buckley, 260 Neb. 596, 618
N.W.2d 684 (2000).
See, generally, 15B Charles Alan Wright et al., Federal Practice and
Procedure § 3914.24 (1992 & Supp. 2010).
See id.
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1. Appeal: Case No. S-10-361
[4] It is not disputed that, had this discovery dispute been
litigated in Douglas County, the district court’s order would be
neither final nor appealable. We have held that an interlocutory discovery order compelling the production of documents
for which a claim of privilege is asserted can be adequately
reviewed on appeal from a final judgment and, thus, is appealable neither as a final order nor under the collateral order doctrine.11 Postjudgment appeals generally suffice to protect the
rights of litigants and assure the vitality of the privilege.12 And
any harm resulting from the occasional discovery order that
might have been corrected, if interlocutory appeals had been
available, is outweighed by the delay and disruption that would
occur in the litigation process if we were to allow appeals from
every discovery order claimed to implicate privilege.13
And, as the U.S. Supreme Court has explained in endorsing that view, “were attorneys and clients to reflect upon their
appellate options, they would find that litigants confronted with
a particularly injurious or novel privilege ruling have several
potential avenues of review.”14 In particular, “in extraordinary
circumstances—i.e., when a disclosure order ‘amount[s] to a
judicial usurpation of power or a clear abuse of discretion,’ or
otherwise works a manifest injustice—a party may petition the
court of appeals for a writ of mandamus.”15 And
[a]nother long-recognized option is for a party to
defy a disclosure order and incur court-imposed sanctions. . . . Such sanctions allow a party to obtain postjudgment review without having to reveal its privileged
information. Alternatively, when the circumstances warrant it, a district court may hold a noncomplying party
in contempt. The party can then appeal directly from that
11
12
13
14
15
See, Hallie Mgmt. Co., supra note 4; Brozovsky, supra note 4.
See Mohawk Industries, Inc. v. Carpenter, ___ U.S. ___, 130 S. Ct. 599,
175 L. Ed. 2d 458 (2009).
Hallie Mgmt. Co., supra note 4.
Mohawk Industries, Inc., supra note 12, 130 S. Ct. at 607.
Id.
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ruling, at least when the contempt citation can be characterized as a criminal punishment.16
These established mechanisms, the Court explained, facilitate
immediate review of more consequential privilege rulings.17
But the county attorney contends that the order at issue in
this case is appealable, because it occurred in an ancillary proceeding. Because nothing remains pending before the district
court for Washington County, the county attorney contends
that the order entered by that court is final and appealable.
But that would create a rule under which the appealability of
an interlocutory discovery order would depend upon whether
the documents sought are in the same county as the underlying litigation. It would be highly peculiar if the availability of
appellate review was different based solely on where the rele
vant evidence is located. That is one of the reasons why, as a
general rule, an order granting discovery against a third party
in an ancillary proceeding is not considered appealable.18
[5,6] And we agree. Neither the collateral order doctrine nor
our final order statute provides a basis for appellate jurisdiction
here. Whether a privilege claim can be adequately reviewed on
appeal from a final judgment does not depend on whether or
not the discovery proceeding is ancillary. And under Neb. Rev.
Stat. § 25-1902 (Reissue 2008), an order is final for purposes
of appeal if it affects a substantial right and (1) determines
the action and prevents a judgment, (2) is made during a special proceeding, or (3) is made on summary application in an
action after judgment is rendered.19 An order granting ancillary
discovery does not determine the action and prevent the judgment, nor, obviously, is it made after judgment is rendered.
And even if we assume that an ancillary discovery proceeding
16
17
18
19
Id., 130 S. Ct. at 608.
See id.
See, e.g., Nicholas v. Wyndham Intern., Inc., 373 F.3d 537 (4th Cir. 2004);
A-Mark Auction Galleries v. American Numismatic, 233 F.3d 895 (5th
Cir. 2000); F.T.C. v. Alaska Land Leasing, Inc., 778 F.2d 577 (10th Cir.
1985).
Blue Cross and Blue Shield v. Dailey, 268 Neb. 733, 687 N.W.2d 689
(2004).
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is a special proceeding—a matter we do not decide—we have
explained that a substantial right is not affected during a special proceeding, for purposes of appeal, when that right can be
effectively vindicated in an appeal from the final judgment.20
An order granting discovery of allegedly privileged information is not a final order under § 25-1902 for the same reason it
is not appealable under the collateral order doctrine.
The fact that nothing remains pending in the ancillary court,
following its resolution of the issues, does not change the fact
that an ancillary discovery proceeding is merely undertaken to
aid the underlying litigation that remains pending in another
court. Such an appeal would be equally interlocutory. As the
Fourth Circuit has explained, “While the district court’s order
compelling discovery may seem a self-contained piece of litigation when viewed in isolation, that view fails to capture the
full scope of these proceedings.”21 The discovery request at
issue is but one of several in this case, and must be examined
in the larger context which includes the underlying litigation.22
When viewed in that context, there is no reason to deviate from
the general rule just because the discovery order was ancillary.23 The same policy concerns that generally militate against
interlocutory appeals, even where privilege is asserted,24 counsel against permitting an interlocutory appeal from an order
granting ancillary discovery.
Instead, we conclude that other established mechanisms
provide potential avenues of review for a potentially injurious
or novel discovery ruling.25 We have regularly considered discovery orders in the context of mandamus.26 And we recently
20
See, In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860 (2007); In re
Estate of Rose, 273 Neb. 490, 730 N.W.2d 391 (2007).
21
MDK, Inc. v. Mike’s Train House, Inc., 27 F.3d 116, 121 (4th Cir. 1994).
Accord A-Mark Auction Galleries, supra note 18.
22
See A-Mark Auction Galleries, supra note 18.
23
See id.
24
See Hallie Mgmt. Co., supra note 4.
25
See Mohawk Industries, Inc., supra note 12.
26
See, e.g., Stetson v. Silverman, 278 Neb. 389, 770 N.W.2d 632 (2009);
Buckley, supra note 8; Likes, supra note 5.
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endorsed the rules applied in federal courts regarding the
appealability of contempt judgments, which permit nonparties
to appeal from interlocutory civil contempt orders.27 Those
mechanisms “serve as useful ‘safety valve[s]’ for promptly correcting serious errors.”28
[7] We note that some federal courts have recognized a limited exception to these general principles and permitted appeal
by a party under the collateral order doctrine from an order
denying discovery from a nonparty in an ancillary proceeding.29
But we need not decide the applicability of that principle here.
Instead, we hold that an order granting discovery from a nonparty in an ancillary proceeding is not a final, appealable order.
Accordingly, the Court of Appeals acted correctly in dismissing
the county attorney’s appeal in case No. S-10-361.
2. Mandamus Action: Case No. S-10-831
Although we lack jurisdiction over the county attorney’s
appeal from the district court’s order, as suggested above, the
county attorney’s petition for writ of mandamus provides an
alternative path to obtaining review by an appellate court. So,
it is in that context that we consider the county attorney’s arguments on the merits of the district court’s order.
[8-10] In doing so, we are mindful of the fact that a court
issues a writ of mandamus only when (1) the relator has a clear
right to the relief sought, (2) a corresponding clear duty exists
for the respondent to perform the act, and (3) no other plain
and adequate remedy is available in the ordinary course of
law.30 The party seeking mandamus has the burden of proof and
must show clearly and conclusively that such party is entitled
to the particular thing the relator asks and that the respond
ent is legally obligated to act.31 And in determining whether
27
Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848
(2010).
28
Mohawk Industries, Inc., supra note 12, 130 S. Ct. at 608.
29
See, e.g., Nicholas, supra note 18; In re Madden, 151 F.3d 125 (3d Cir.
1998).
30
Stetson, supra note 26.
31
Council of City of Omaha, supra note 8.
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m
andamus applies to a discovery issue, we consider whether
the trial court clearly abused its discretion in not limiting the
scope of the discovery.32
It is important to note, from the outset, that the county attorney does not argue to this court that the disputed documents
are actually privileged. In other words, she does not ask this
court to find that the documents are actually privileged by the
Arson Reporting Immunity Act, or any other privilege. Nor
could we evaluate such an argument, given that the disputed
materials are not in this court’s record. Rather, the county
attorney’s challenge is directed at the procedure followed by
the district court in deciding to order disclosure. The county
attorney’s arguments, generally speaking, are that the district
court failed to give her proper notice that it was preparing to
decide the privilege issue and that the court failed to decide
all of the privilege issues that were presented to it. We find no
merit to either argument, but explaining why will require that
we begin by examining the procedural history of the district
court proceedings in greater detail.
(a) Procedural History
As noted above, Schropp subpoenaed the disputed materials
from the county attorney on September 2, 2009. The county
attorney replied with a letter to Schropp dated October 4, 2009,
in which the county attorney made an “assertion of and preservation of any all [sic] privileges and objections to disclosure or
discovery of information obtained by and on behalf of Sentry
Insurance Company pursuant to Nebraska’s Arson Reporting
Immunity Act . . . not specifically approved by and consented
to by the Washington County Attorney.”
Schropp filed its motion for an order to compel compliance
with the subpoena in the district court on October 19, 2009.
A hearing was held in the district court on December 14. At
that hearing, the county attorney framed the issue as Schropp’s
“authority . . . to bring this action to compel a prosecutor to
turnover [sic] criminal investigative documents for use in a
civil proceeding that is pending in another county.” The county
32
Stetson, supra note 26.
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attorney argued, first, that Schropp did not have “standing” to
bring its enforcement action in Washington County when there
was pending litigation in Douglas County. And the county
attorney explained that she had not limited her objection to the
Arson Reporting Immunity Act, but was also “not aware of any
authority . . . to compel a county attorney’s office to turnover
[sic] investigative reports in an ongoing criminal investigation
to use in a civil proceeding.”
The court discussed a briefing schedule with the parties. The
county attorney asked if there were particular issues the court
wanted the briefs to address, and the court replied:
Well, for one, I would like you to address the standing issue.
I would also like you to address the issue of why I
should have jurisdiction over the enforcement of a subpoena that was issued by a judge in Douglas County[.]
What is the privilege that relates to ongoing criminal
investigations is another issue that occurs to me.
The district court made a journal entry that provided Schropp
10 days for further briefing and gave the county attorney 28
days to provide a responsive brief.
On January 13, 2010 (30 days later), the county attorney filed a “Complaint and Motion to Stay Proceedings,” a
“Complaint and Motion to Quash, for Summary Judgment
and Dismissal,” and a brief that both supported the motion to
quash and responded to Schropp’s brief. In the motion to stay,
the county attorney argued that complying with Schropp’s subpoena “undermines public safety and welfare” and moved to
stay the proceedings to permit the county attorney to intervene
in the Douglas County case to litigate the privilege issue. The
county attorney asserted that a stay was necessary to afford
her “due process and fundamental fairness under the laws
to seek protection of State secrets, and promote the public
interest, and safety.” In the motion to quash, the county attorney asserted that Schropp’s subpoena sought privileged files,
but had “failed to establish standing or legal justification”
because Schropp’s motion was “prohibited by the doctrine of
sub judice.” The county attorney’s brief accused Schropp of
“forum shopping,” and continued to assert that Schropp lacked
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“standing” and that its subpoena was “prohibited by the doctrine of sub judice.”
On February 17, 2010, the district court granted the county
attorney’s request for a stay. The court explained that it was
“unaware whether a timely motion to address the issue of
privilege” had been made in Douglas County, so the court
stayed the proceedings for 30 days to allow the county attorney
“to intervene or otherwise file an application in the Douglas
County case seeking a court review of its claim of privilege.”
But the court stated that the county attorney was to provide the
district court with a file-stamped copy of its Douglas County
pleading, and if such pleading was not on file within 30 days,
the court would reinstate the matter and set it for further hearing on the county attorney’s claim of privilege.
On the same day, the county attorney’s motion to intervene in the Douglas County case was apparently denied. So,
on February 26, 2010, the district court lifted the stay of the
Washington County proceedings. The court stated that the
county attorney’s privilege claim remained to be determined
but that no privilege log had been produced by the county
attorney. So, the court concluded, “[i]t would appear from the
record that the Washington county attorney takes the position
that all materials in its file are privileged under the act.” The
court ordered the county attorney to provide the court, within
7 days, with all the materials in its files that were responsive
to Schropp’s subpoena, so that the court could conduct an in
camera review of the documents.
The court ruled on the privilege issue in a journal entry filed
on March 24, 2010. The court noted that the county attorney
“has claimed a privilege but has not filed a privilege log as
required.” So, the court reasoned, the county attorney seemed
to be claiming only a generic privilege under the provisions
of the Arson Reporting Immunity Act. After examining the
procedure for evaluating a privilege claim that was established
by this court in Greenwalt v. Wal-Mart Stores,33 which requires
the party asserting privilege to state the claimed privileges with
specificity, the court explained that it had ordered an in camera
33
Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997).
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review “despite the lack of specific claims of privilege.” The
court said that it had reviewed the 43 compact discs that had
been provided by the county attorney, despite the lack of a
privilege log or listing of the included documents, and concluded that there was no generic privilege which attached to
the documents under the provisions of the Arson Reporting
Immunity Act. So, the court overruled the county attorney’s
claim of privilege and ordered production of the documents.
(b) District Court Procedures
The county attorney claims that the district court failed to
provide her with procedural due process. In the context of this
argument, she contends that the district court erred in deciding
the issue of privilege when, at least according to the county
attorney, the issue was not “ripe.” Stated generally, the county
attorney complains that the district court decided the privilege
issue without notifying her it was going to do so.
(i) Procedural Due Process
To begin with, the county attorney’s constitutional argument
is without merit. The county attorney is a party to this case in
her official capacity, representing the interests of Washington
County, and while U.S. Const. amend. XIV and Neb. Const.
art. I, § 3, prohibit the State from depriving any “person” of
life, liberty, or property without due process of law, a county,
as a creature and political subdivision of the State, is neither a
natural nor an artificial person.34 In other words, Washington
County has no constitutional right to due process that the court
could have violated.
(ii) Failure to Give Hearing
Beyond that, the county attorney contends that she was not
provided with notice that the court was going to decide the
privilege issue; therefore, the county attorney contends, she
was not given the opportunity to brief the merits of her privilege claim. The county attorney asserts that her brief was solely
dedicated to the issue of “standing” and that “the Court never
34
City of Lincoln v. Central Platte NRD, 263 Neb. 141, 638 N.W.2d 839
(2002).
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requested or indicated that the issue of privilege should have
been addressed.”35
But as described above, the county attorney’s argument is
inconsistent with the record. When the county attorney asked
what her brief should address, she was specifically told by the
court to address “the privilege that relates to ongoing criminal
investigations.” It may have been the county attorney’s preference to address the issue of “standing” before arguing and
submitting the privilege issue, but at no point in the record did
the court endorse that view—and, in fact, the court expressly
directed otherwise.
The district court’s order of February 26, 2010, made it
apparent that the court was going to address the privilege issue,
and the county attorney did not object. If the county attorney
believed that further briefing or argument was necessary on the
privilege issue, the court’s February 26 order was her opportunity to provide it, or seek leave to provide it, or object to
the court’s proceeding. But the record does not reflect that the
county attorney did any of those things. And we have often said
that one cannot silently tolerate error, gamble on a favorable
result, and then complain that one guessed wrong.36
(iii) Failure to Order Privilege Log
[11,12] The county attorney also claims that the district
court failed to follow the procedure established by this court in
Greenwalt. In Greenwalt, we explained:
In response to a motion to compel production, the
asserting party must make out a prima facie claim that
the privilege or doctrine applies. In order to fulfill this
burden, the asserting party must submit a motion for protective order, in affidavit form, verifying the facts critical
to the assertion of the privilege or doctrine.[37] The motion
for protective order must (1) verify that it accurately
describes each of the documents in question; (2) list the
documents and provide a summary that includes (a) the
35
36
37
Brief for appellant-relator at 9.
Pierce v. Drobny, 279 Neb. 251, 777 N.W.2d 322 (2010).
See Neb. Ct. R. Disc. § 6-326(c).
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type of document, (b) the subject matter of the document, (c) the date of the document, (d) the author of the
document, and (e) each recipient of the document; and
(3) state with specificity, in a nonconclusory manner, how
each element of the asserted privilege or doctrine is met,
to the extent possible, without revealing the information
alleged to be protected.
The party requesting the material must be given a full
and fair opportunity to respond to the motion for protective order. Then, if the district court determines that the
party asserting the privilege or doctrine has failed to
make out a prima facie claim, it shall order the asserting
party to produce the documents. Conversely, if the district court determines that the asserting party has made
out a prima facie claim, then it shall (1) order the alleged
protected material produced to the court, (2) order the
asserting party to submit an index directing the court
to the specific portions of each of the listed documents
that allegedly constitute protected material, (3) privately
review the material outside the presence of all counsel,
(4) make a determination of whether the material is protected, and (5) seal the material for purposes of appellate review.38
The county attorney claims that she never provided the court
with a privilege log because she was never ordered, pursuant to
the second step of Greenwalt, to “submit an index directing the
court to the specific portions of each of the listed documents
that allegedly constitute protected material.”39 She argues that
because the district court ordered an in camera review, the
court “had concluded that [the county attorney] had made a
prima facie claim.”40
This, again, is unsupported by the record. The court first
noted the county attorney’s failure to provide a privilege log,
not after the court’s in camera review, but when the court first
38
Greenwalt, supra note 33, 253 Neb. at 40, 567 N.W.2d at 566-67.
Id. at 40, 567 N.W.2d at 567.
40
Brief for appellant-relator at 11.
39
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ordered the in camera review. In other words, the “privilege
log” at issue was the list and summary of the documents, and
specific assertions of privilege, that the county attorney should
have initially provided in response to Schropp’s motion to
compel production.
Greenwalt clearly provides that in response to a motion to
compel production, it is the party asserting the privilege—in
this case, the county attorney—who has the burden of moving
for a protective order and establishing the basis for the privilege claim. But here, the county attorney never moved for a
protective order, nor did she file any of the documentation that
Greenwalt requires in support of such a claim. The county attorney did not make out a prima facie claim for any privilege. The
district court explained that “[i]n order to expedite determination of this matter,” it was nonetheless conducting an in camera
review. But the county attorney cannot be heard to complain
about the district court’s procedure when the court provided the
county attorney’s argument with more consideration than it was
due. In other words, it was not the district court that failed to
follow Greenwalt—it was the county attorney.
If the county attorney was dissatisfied with the court’s intent
to proceed on the privilege issue, the court’s February 26,
2010, order gave the county attorney an opportunity to object.
And when the court’s order noted the lack of a privilege log,
the county attorney had the opportunity to provide the materials that she should have filed in the first place.
In short, the county attorney neither filed the motion and
documentation required to initiate the Greenwalt process nor
objected when the court said that it was nonetheless willing to
consider her claim. The party asserting privilege has the burden of proving that the documents sought are protected, and it
was not the district court’s responsibility to order the county
attorney to remedy her failure of proof. We find no error in the
district court’s compliance with Greenwalt.
(iv) Ripeness
Finally, the county attorney argues in passing that “the
filing of a protective order was not ripe” because there was
apparently a protective order entered in Douglas County, by
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stipulation of Schropp and Sentry, to maintain confidentiality
of the documents.41 We have said that a claim is not “ripe” for
adjudication when it rests upon contingent future events that
may not occur as anticipated, or indeed may not occur at all.42
That doctrine, however, does not apply here. The existence of a
protective order stipulated to by Schropp and Sentry would not
preclude the county attorney from pursuing a protective order
to protect Washington County’s interests.
The county attorney further asserts that it was a “judicial
abuse of discretion to rule on the issue of privilege without
allowing the [county attorney] an opportunity to present the
basis for asserting privilege in response to [Schropp’s] Motion
to Compel.”43 But Schropp served its subpoena on September 2,
2009, and filed its motion to compel on October 19. The district
court decided the privilege issue over 5 months later. Contrary
to the county attorney’s claim, our review of the record establishes that the county attorney had numerous opportunities to
present her privilege claim to the district court. She neither initiated that claim properly, pursuant to Greenwalt, nor remedied
that deficiency when it became apparent that the district court
intended to proceed to the merits of the privilege issue. Nor did
the county attorney object to the court’s procedure, despite the
fact that the court explained its intentions clearly. Therefore,
we find no merit to the county attorney’s first assignment
of error.
(c) Ruling on Privileges
The county attorney’s second assignment of error is that the
court erred in failing to find that her records were not protected
from discovery. But, as noted above, the county attorney does
not specifically argue that the materials fall within any particular privilege, nor would the record permit us to evaluate such
an argument. Instead, the gravamen of the county attorney’s
argument is that the district court erred by only addressing the
Arson Reporting Immunity Act, and not addressing any other
41
42
43
Brief for appellant-relator at 11.
State v. Hansen, 259 Neb. 764, 612 N.W.2d 477 (2000).
Brief for appellant-relator at 12.
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basis for finding the documents privileged. The county attorney
asserts that she
consistently maintained that the investigatory file of a
County Attorney is barred from discovery based numerous [sic] privileges. General and specific privileges were
asserted. Specifically:
a. A general privilege based on the language of the
Arson Reporting Immunity Act . . . .
b. A general privilege based on [Neb. Rev. Stat.]
§ 84-712.05 [(Cum. Supp. 2010)]; and,
c. Evidentiary privileges based on [Neb. Rev. Stat.]
§§ 27-509 . . . (State secrets), 27-503 (lawyer/client), and
27-510 (informer) [(Reissue 2008)].44
But the record does not support the county attorney’s assertions. Our review of the record has found no point at which
the county attorney cited to any of the specific privileges she
now asserts, other than the Arson Reporting Immunity Act,
nor do the county attorney’s citations to the record support
her argument.
As support in the record for her assertion that she “consist
ently maintained” each of these privileges, the county attorney specifically directs us to where she questioned Schropp’s
“authority” to compel production. This is, obviously, far short
of asserting a specific privilege—and far short of meeting her
burden of stating, “with specificity,” how an asserted privilege
is met.45 Nor does the county attorney find support in her original objection to disclosure, based upon “any all [sic] privileges
and objections . . . pursuant to Nebraska’s Arson Reporting
Immunity Act.” Even if we read this as referring to privileges beyond the Arson Reporting Immunity Act, the county
attorney’s letter did not identify any other privilege with the
specificity required to effectively assert it.
[13,14] Because this is a mandamus action, the burden lies
on the county attorney to show clearly and conclusively that
she is entitled to the relief sought.46 In considering whether
44
Brief for appellant-relator at 12-13.
See Greenwalt, supra note 33, 253 Neb. at 40, 567 N.W.2d at 567.
46
See Council of City of Omaha, supra note 8.
45
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to grant a writ of mandamus, an appellate court considers
whether the duty to be enforced was one which existed at the
time the petition was filed.47 And a request for relief first presented in a mandamus action will be disregarded inasmuch as
the district court cannot have failed to perform an act which
was not submitted to it for disposition.48 Simply put, it is the
county attorney’s burden to demonstrate that the district court
had a ministerial duty to resolve the different privilege claims
that she now asserts. And she has not done this, because the
record does not show that the claims she is asserting were ever
presented to the district court. The district court had no ministerial duty to resolve arguments that were not submitted to it
for disposition.
In this context, the county attorney reasserts her claim
that the district court failed to follow Greenwalt, because the
court did not ask the county attorney to specify what part of
the disputed documents were privileged; the county attorney
argues that by not “requesting a supplemental brief from [the
county attorney] addressing the privileges asserted, the Court
failed to have sufficient evidence before it to make a ruling to
order disclosure of [the county attorney’s] investigatory file.”49
However, the district court did ask the county attorney to brief
the question of what privilege applied. But more fundamentally, the burden of proof was on the county attorney as the
party asserting a privilege. It was the county attorney’s burden
to specifically assert the privileges she was claiming and pre
sent a record showing that those privileges applied.50
The district court did not err in deciding the privilege issue;
we again note that given the county attorney’s failure to make
a prima facie case under Greenwalt, the district court actually did more than it was obliged to do to resolve the issue.
Nor did the court err by not addressing privileges that had not
47
Pratt v. Nebraska Bd. of Parole, 252 Neb. 906, 567 N.W.2d 183 (1997).
State ex rel. Upper Republican NRD v. District Judges, 273 Neb. 148, 728
N.W.2d 275 (2007).
49
Brief for appellant-relator at 13.
50
See Greenwalt, supra note 33.
48
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been raised before it. We find no merit to the county attorney’s
assignment of error.
(d) Failure to Show Cause
The county attorney also argues, generally, Schropp and the
district court have not shown cause that the court’s discovery
orders should not be set aside. But this argument is not encompassed by the county attorney’s assignments of error, and errors
argued but not assigned will not be considered on appeal.51
V. Conclusion
For these reasons, we conclude that the county attorney’s
appeal was not taken from a final, appealable order, and we
affirm the decision of the Court of Appeals dismissing her
appeal in case No. S-10-361. We also conclude that the county
attorney has failed to meet her burden of showing clearly and
convincingly that she is entitled to have the district court’s
orders vacated, and we deny her request for a peremptory writ
of mandamus in case No. S-10-831.
Judgment in No. S-10-361 affirmed.
Peremptory writ in No. S-10-831 denied.
Wright, J., not participating.
51
See Shepherd v. Chambers, ante p. 57, ___ N.W.2d ___ (2011).
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