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Mandamus Review of Discovery Order - Attorney-Client Privilege - Insurance Coverage Dispute

Ex parte Alfa Insurance Corp., [Ms. 1170804, Apr. 5, 2019] __ So. 3d __ (Ala. 2019). This per curiam opinion (Parker, C.J., and Bolin, Wise, Bryan, and Mitchell, JJ., concur; Mendheim, J., concurs in part and dissents in part; Sellers, and Stewart, JJ., dissent) issues a writ of mandamus directing the Montgomery Circuit Court to vacate its orders denying Alfa’s motion for protective order and challenging orders to produce a coverage opinion letter from Alfa’s outside counsel.

The Court first noted that “the order challenged ... is reviewable because it allegedly disregards the attorney-client privilege ... and further noted that ‘[t]he parameters of an evidentiary privilege and, in particular, whether the law recognizes contended-for exceptions to that privilege’ are questions of law, and, as such, are subject to de novo review.” Ms. *23-24, quoting Ex parte Northwest Alabama Mental Health Ctr., 68 So. 3d 792, 796 (Ala. 2011).

Despite noting that it may “affirm the trial court on any valid legal ground presented by the record, whether that ground was considered, or even if it was rejected, by the trial court,” Ms. *39, the Court concluded because Alfa had not invoked advice of counsel as a defense in the coverage dispute, the plaintiffs could not establish any exception to the attorney-client privilege authorizing the production of the opinion letters. Ms. *34. The Court issued the writ because “Alfa has established that the trial court exceeded its discretion when it disregarded the attorney-client privilege and entered the May 2018 order denying Alfa’s motion for protective order and compelling Alfa to produce the materials sought for in camera inspection or for discovery.” Ms. *46.

Noting that Alfa’s privilege log listed numerous documents in addition to the coverage opinion letter, Justice Mendheim’s dissent concludes that “an in camera inspection of the documents included in the privilege log – other than the coverage opinion – is an appropriate method in this kind of situation for determining the applicability of the attorney-client privilege to those documents.” Ms. *50.

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