Ex parte Gene Warhurst, Jr., P.C. PETITION FOR WRIT OF MANDAMUS (In re: Tenley Fullington Warhurst v. Ernest Eugene Warhurst, Jr.) (Baldwin Circuit Court: DR-20-901162)

Rel: April 26, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
________________________

CL-2023-0811
________________________

Ex parte Gene Warhurst, Jr., P.C.

PETITION FOR WRIT OF MANDAMUS

(In re: Tenley Fullington Warhurst

v.

Ernest Eugene Warhurst, Jr.)

(Baldwin Circuit Court: DR-20-901162)

PER CURIAM.

Gene Warhurst, Jr., P.C. ("the law firm"), has petitioned this court

to issue a writ of mandamus directed to the Baldwin Circuit Court ("the
CL-2023-0811

trial court") compelling the trial court to grant the law firm's motion to

quash a nonparty subpoena that was served upon it. Although we do not

grant the specific relief requested, we grant the petition and direct the

trial court to comply with Rule 45(c)(3)(A)(iii), Ala. R. Civ. P.

Background

On October 12, 2020, Tenley Fullington Warhurst ("the wife") filed

a complaint in the trial court, seeking a divorce from Earnest Eugene

Warhurst, Jr. ("the husband"), who subsequently filed an answer and a

counterclaim for a divorce. During a hearing on March 22, 2022, the

wife's counsel indicated that the wife intended to request that the

husband produce, for the purposes of a forensic examination, the Apple-

brand cellular telephone that he regularly used; however, at that time,

the cellular telephone was in the custody of the Fairhope Police

Department, which had seized the telephone after the husband had been

charged with stalking the wife. On June 2, 2023, after the stalking

charges were dismissed, the trial court ordered the husband to obtain the

cellular telephone from the Fairhope Police Department and to produce

the cellular telephone to the wife.

2
CL-2023-0811

After receiving the cellular telephone, the wife's expert determined

that its hard drive had been damaged by water intrusion, preventing

access to any data stored on the hard drive. On August 31, 2023, the wife

filed a motion alleging that the husband had intentionally damaged the

cellular telephone and requesting that the trial court order the husband

to produce the passcode for the cellular telephone and the username and

password for the iCloud electronic-data-storage account ("the iCloud

account") linked to the cellular telephone. On September 22, 2023, the

husband filed an objection to the motion; he attached to the motion his

affidavit, in which he attested that he had not intentionally damaged the

cellular telephone, that the cellular telephone and the iCloud account

linked thereto were owned by his law firm, Gene Warhurst, Jr., P.C. ("the

law firm"), and that the iCloud account contained confidential

communications that were protected from discovery by the attorney-

client privilege. The trial court denied the wife's motion.

On September 26, 2023, the trial court instructed the wife to file a

nonparty subpoena, to be served on the law firm, requesting the password

for the iCloud account. On September 27, 2023, the wife filed a notice of

intent to serve a nonparty subpoena on the law firm and a motion to

3
CL-2023-0811

shorten the time for the law firm to respond to the subpoena. The

husband objected to the nonparty subpoena; however, on October 6, 2023,

the trial court granted the motion to shorten the time for the husband to

comply with the subpoena, thereby impliedly overruling his objection.

On October 11, 2023, the wife served the nonparty subpoena on the law

firm, requesting that the law firm produce, by 9:00 a.m. the following day,

"[the cellular telephone that the husband had] retrieved from the

Fairhope Police Department," the passcode to access the cellular

telephone, and the password for the iCloud account. On October 13, 2023,

the law firm filed a motion to quash the nonparty subpoena insofar as it

sought the password to the iCloud account; the trial court summarily

denied the motion to quash on October 16, 2023. On November 15, 2023,

the law firm filed a petition for the writ of mandamus with this court,

seeking an order requiring the trial court to grant its motion to quash the

nonparty subpoena.

Timeliness

This court has jurisdiction over this petition pursuant to Ala. Code

1975, § 12-3-11. The wife argues, however, that the mandamus petition

was not filed within a reasonable time as required by Rule 21(a)(3), Ala.

4
CL-2023-0811

R. App. P. Citing the extensive litigation over the discovery of the data

on the cellular telephone, the wife posits that the husband, who she

characterizes as an alter ego of the law firm, knew as early as March 2022

that the trial court would allow her expert access to that data through a

forensic examination and that the petition for the writ of mandamus

should have been filed, at the latest, within a reasonable time from the

entry of the June 2, 2023, order requiring the husband to produce the

cellular telephone.

The June 2, 2023, order, in essence, granted the wife discovery of

the "electronically stored information" contained on the hard drive of the

cellular telephone. See Rule 26(b)(2), Ala. R. Civ. P., and the Committee

Comments to Amendment to Rule 26 Effective February 1, 2010.

According to the materials before this court, the iCloud account contains

different and far more electronically stored information than the hard

drive of the cellular telephone. Thus, the nonparty subpoena requesting

production of the password for the iCloud account can be characterized

only as a new discovery request. The trial court directed the wife to make

that request directly to the law firm through a nonparty subpoena;

however, the request could have been made directly to the husband if the

5
CL-2023-0811

trial court had determined that he controlled the law firm because Rule

34(a), Ala. R. Civ. P., expressly allows a party to serve requests for

production for the purpose of discovering electronically stored

information "in the possession, custody, or control of the party upon

whom the request is served." (Emphasis added.) The trial court

evidently determined that the law firm was a separate entity with

ownership and control over the iCloud account, as the husband

maintained. Accordingly, the trial court never ordered the husband to

produce the password for the iCloud account; it ordered only the law firm

to provide that information. That order was entered on October 16, 2023,

when the trial court denied the law firm's motion to quash.

Based on Rule 21(a)(3), Ala. R. App. P., "[i]n domestic-relations

cases, a party aggrieved by an order of a circuit court generally has 42

days from the date of the entry of that order to file a petition for the writ

of mandamus." Ex parte Laymon, 343 So. 3d 32, 34 (Ala. Civ. App. 2021).

The law firm filed this mandamus petition within 42 days of the October

16, 2023, order denying its motion to quash, in compliance with Rule

21(a)(3), and, thus, the petition is not untimely.

6
CL-2023-0811

Standard of Review

As to the merits, "a mandamus petition may be used to review

rulings on motions to quash subpoenas from parties and nonparties." Ex

parte Summit Med. Ctr. of Montgomery, Inc., 854 So. 2d 614, 616 (Ala.

Crim. App. 2002).

" ' "A writ of mandamus 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)." ' "

Ex parte Brown, 963 So. 2d 604, 606-07 (Ala. 2007) (quoting Ex parte

Rawls, 953 So. 2d 374, 377 (Ala. 2006), quoting in turn Ex parte

Antonucci, 917 So. 2d 825, 830 (Ala. 2005)). A petition for the writ of

mandamus is the appropriate method for seeking review of a discovery

order that disregards a privilege or "compels the production of patently

irrelevant or duplicative documents, such as to clearly constitute

harassment or impose a burden on the producing party far out of

proportion to any benefit that may obtain to the requesting party." Ex

parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003).

7
CL-2023-0811

Issues

In ruling on a petition for the writ of mandamus regarding a

discovery dispute, an appellate court is limited to the arguments on

which the trial court based its decision. See Ex parte Newby, 194 So. 3d

913, 917 (Ala. 2015). In its motion to quash, the law firm argued that the

request for the password to the iCloud account exceeded the scope of

discovery because it would allow the wife access to all the electronic

information stored in the iCloud account, including confidential

communications protected by the attorney-client privilege, without a

showing that the information was relevant to the claims and defenses in

the divorce action between the husband and the wife and was

proportional to the needs of the case. See Rule 26(b)(1), Ala. R. Civ. P.

The law firm also argued that the subpoena failed to allow a reasonable

time for compliance with the request.

Analysis

A party may obtain electronically stored information from a

nonparty through Rule 45(a)(1)(C), Ala. R. Civ. P., so long as that

information is within the scope of discovery under Rule 26(b)(1), Ala. R.

Civ. P. See generally Ex parte Meadowbrook Ins. Grp., Inc., 987 So. 2d

8
CL-2023-0811

540, 551 (Ala. 2007) (applying Rule 26, Ala. R. Civ. P., when determining

whether nonparty subpoena should be quashed or modified for exceeding

scope of discovery). Under Rule 26(b)(1), a party "may obtain discovery

regarding any matter, not privileged, which is: (i) relevant to the subject

matter involved in the pending action, ... and (ii) proportional to the needs

of the case." When a nonparty subpoena requires production of

electronically stored information that is privileged, is not relevant to the

subject matter of the litigation, or is disproportional to the needs of the

case, the nonparty may move for an order quashing the subpoena. See

Rule 45(c)(3)(A), Ala. R. Civ. P.

The first step in determining whether a trial court has

impermissibly allowed discovery requires this court to "determine the

particularized need for discovery, in light of the nature of the claim." Ex

parte Rowland, 669 So. 2d 125, 127 (Ala. 1995). The wife filed a

complaint seeking a divorce from the husband on the grounds of

incompatibility of temperament and an irretrievable breakdown of the

parties' marriage, an equitable division of the marital property, and an

award of periodic alimony. On March 22, 2022, during a hearing before

the trial court, the wife's counsel indicated that the wife would seek

9
CL-2023-0811

discovery of the electronically stored information on the husband's

cellular telephone to determine whether he had used the cellular

telephone in a manner that violated the orders of the trial court. After

the husband produced the cellular telephone to the wife for forensic

examination, her expert determined that the hard drive needed to be

rebuilt because it had sustained water damage. The expert stated in an

affidavit that, once the hard drive was rebuilt, he would need, among

other things, the password to the iCloud account to decrypt the data on

the hard drive.

The nonparty subpoena requires the law firm to produce the

password to the iCloud account without any limitation that it be used for

the purpose of decrypting the data in the cellular telephone. The

materials before the trial court and this court show that the iCloud

account contains more than just the electronic information that had been

stored on the cellular telephone. To the extent that the nonparty

subpoena provides the wife and her expert access to electronically stored

information beyond the data previously stored on the hard drive of the

cellular telephone, the wife has failed to show any particularized need for

that discovery.

10
CL-2023-0811

Furthermore, the wife did not closely tailor the request for

electronically stored information to the claims made in the divorce

proceedings. Assuming the wife was seeking information as to any

marital misconduct the husband may have committed to prove her claims

for alimony or property division, see Ex parte Drummond, 785 So. 2d 358,

363 (Ala. 2000) (recognizing that trial court may consider the fault of the

parties in causing the breakdown of the marriage when determining

property division and alimony even when the divorce is granted on

grounds of incompatibility), or any other misconduct that may form the

basis of a contempt claim for violating the orders of the trial court, the

wife did not request that the law firm produce that specific information.

The wife requested and was allowed the password to the iCloud account,

which gives her complete access to all electronically stored information

from the devices linked to that account regardless of the nature of the

data. In that respect, the request for the password to the iCloud account

was overly broad and disproportionate to the needs of the case, see Ex

parte Henry, 770 So. 2d 76, 80 (Ala. 2000) (approving of an order limiting

discovery that was overbroad and not closely tailored to the fraud claims

made in the complaint), and essentially authorizes the wife and her

11
CL-2023-0811

expert to embark on a fishing expedition throughout the law firm's iCloud

account without making a targeted request reasonably calculated to lead

to the discovery of admissible evidence. See Ex parte Baggett, 297 So. 3d

1168, 1175-76 (Ala. 2019) (issuing a writ of mandamus to quash nonparty

subpoenas "neither proportional to the needs of the case nor reasonably

calculated to lead to the discovery of admissible evidence").

The nonparty subpoena also impermissibly provides the wife access

to confidential communications protected from discovery by the attorney-

client privilege. The wife does not dispute that the law firm's iCloud

account contains confidential communications protected from discovery

by the attorney-client privilege. See Rule 26(b)(1) ("Parties may obtain

discovery regarding any matter, not privileged ....") (emphasis added); Ex

parte Alfa Ins. Corp., 284 So. 3d 891, 904 (Ala. 2019) ("It is well settled

that, absent some exception to the attorney-client privilege, '[t]he

contents of a confidential communication between an attorney and his

client are privileged and, thus, are not discoverable from either the

attorney or his client unless the privilege is waived by the client.' Ex

parte Alfa Mut. Ins. Co., 631 So. 2d 858, 859-60 (Ala. 1993)."). In her

answer to the husband's mandamus petition, the wife essentially

12
CL-2023-0811

concedes that, unless quashed or modified, the subpoena will give her

access to those privileged communications, although no client has waived

the attorney-client privilege and no exception to the privilege applies.

See Rule 502(d), Ala. R. Evid. (setting forth exceptions to privilege).

Rule 45(c)(3), Ala. R. Civ. P., provides, in pertinent part:

"(A) On timely motion, the court by which a subpoena
was issued shall quash or modify the subpoena if it

"....

"(iii) requires disclosure of privileged or other
protected matter and no exception or waiver
applies, or

"(iv) subjects a person to undue burden."

(Emphasis added.) "Our supreme court has consistently held that the

word 'shall' is mandatory when used in a rule promulgated by that court."

Martin v. Martin, 637 So. 2d 901, 902 (Ala. Civ. App. 1994). In adopting

Rule 45(c)(3)(A), our supreme court intended that, when a nonparty

subpoena improperly requires disclosure of privileged information, a trial

court must either quash or modify the subpoena. See generally Crews v.

Jackson, 218 So. 3d 368, 372 (Ala. Civ. App. 2016) (holding that use of

the term "shall" in Rule 64B, Ala. R. Civ. P., evidences an intent that

courts must comply with the letter of the rule); see also Jordan v.
13
CL-2023-0811

Commissioner, Mississippi Dep't of Corr., 947 F.3d 1322, 1335 (11th Cir.

2020) (construing Rule 45(d)(3), Fed. R. Civ. P., the federal counterpart

to Rule 45(c)(3), Ala. R. Civ. P., as a mandatory provision requiring

federal district courts to quash or modify a nonparty subpoena in

enumerated circumstances).

Rule 510(b)(4), Ala. R. Evid., provides that "[a]n Alabama court may

order that the privilege or protection is not waived by disclosure

connected with the litigation pending before the court -- in which event

the disclosure is also not a waiver in any other Alabama proceeding." The

dissent argues that the law firm should not be entitled to mandamus

relief to avoid producing confidential attorney-client communications

because it has an adequate remedy in Rule 510(b)(4). We disagree.

Rule 510(b)(4) is patterned after Rule 502(d), Fed. R. Evid. See

Advisory Committee's Notes to Amendment to Rule 510 Effective October

1, 2013. Rule 502(d) applies only to unintentional disclosures of attorney-

client privileged information and protects a party who has voluntarily,

although inadvertently, disclosed such information from thereby waiving

the privilege in the underlying proceeding and any other federal

litigation. See Potomac Elec. Power Co. & Subsidiaries v. United States,

14
CL-2023-0811

107 Fed. Cl. 725, 731 (2012). Rule 502(d) does not provide a mechanism

for a federal court to compel a person to disclose attorney-client privileged

information by ordering that the disclosure shall not be considered a

waiver of the privilege. See Winfield v. City of New York, No. 15-cv-05236

(LTS) (KHP), May 10, 2018 (S.D.N.Y. 2018) (not reported in Federal

Supplement). The person withholding information that is allegedly

protected by the attorney-client privilege may not petition the court for

an order under Rule 502(d), but, if ordered to produce the information,

the remedy remains the traditional petition for a writ of mandamus. See

Logsdon v. BNSF Ry. Co., No. 8:15-CV-232, Apr. 19, 2017 (D. Neb. 2017)

(not reported in Federal Supplement). That persuasive authority

indicates that an order under Rule 510(b)(4) would not be appropriate in

this case.

Furthermore, we are not convinced that an order under Rule

510(b)(4) serves as an adequate remedy. The law firm seeks to prevent

the wife and her expert from accessing any confidential attorney-client

communications in the first instance. A Rule 510(b)(4) order of the type

contemplated by the dissent would require the law firm to produce those

communications, subject to an order providing that the disclosure shall

15
CL-2023-0811

not be treated as a waiver of the privilege. Nothing in the language of

Rule 510(b)(4) indicates that the rule is designed to dilute the attorney-

client privilege in this manner. If Rule 510(b)(4) could be used to require

the law firm to perform the very act of disclosure it seeks to avoid, that

rule presents no remedy at all. The law firm may obtain relief only

through a writ of mandamus compelling the trial court to protect the

attorney-client privileged information from being disclosed by

appropriately limiting the scope of the subpoena.

We conclude that the law firm has a clear legal right to the relief

afforded by Rule 45(c)(3)(A). Based on the mandatory language in Rule

45(c)(3)(A), the trial court had an imperative duty to either quash or

modify the nonparty subpoena. In this case, the trial court refused to

perform that duty by denying the law firm's motion to quash without

explanation and without modifying the subpoena to limit its scope or to

protect any privileged communications from disclosure. In Ex parte

Ocwen Federal Bank, FSB, 872 So. 2d at 813, our supreme court

recognized that, in these circumstances, the issuance of a writ of

mandamus constitutes the only adequate remedy.

16
CL-2023-0811

The law firm requests that this court issue a writ of mandamus

directing the trial court to quash the nonparty subpoena; however, Rule

45(c)(3)(A), although otherwise mandatory, does not provide that a trial

court must quash a subpoena in every case in which the subpoena

requires disclosure of irrelevant and privileged information. Instead,

the rule specifically provides that a trial court shall "quash or modify"

the subpoena. This court may only direct the trial court to comply with

Rule 45(c)(3)(A) by either quashing or modifying the subpoena. See

generally Ex parte W.Y., 605 So. 2d 1175, 1177 (Ala. 1992) (holding that,

in mandamus proceedings, a petitioner may seek to compel a trial court

to perform a mandatory duty, but the petitioner "may not compel a

particular result").

Conclusion

Based on the foregoing, we grant the petition for a writ of

mandamus, but we direct the trial court to follow Rule 45(c)(3)(A)(iii) by

either quashing or modifying the nonparty subpoena in accordance with

this opinion. Based on our disposition, we pretermit any discussion of

whether the trial court also abused its discretion in shortening the time

for the law firm to respond to the nonparty subpoena. The trial court

17
CL-2023-0811

may reconsider the deadline for compliance should it decide to modify

the nonparty subpoena.

PETITION GRANTED; WRIT ISSUED.

Moore, P.J., and Edwards, Fridy, and Lewis, JJ., concur.

Hanson, J., dissents, with opinion.

18
CL-2023-0811

HANSON, Judge, dissenting.

Because I would deny the petition for the writ of mandamus on the

basis of the availability of another adequate remedy, I respectfully

dissent from the main opinion. There is no indication that petitioner

Gene Warhurst, Jr., P.C. ("the law firm"), has sought an order from the

Baldwin Circuit Court ("the trial court") pursuant to Rule 510(b)(4), Ala.

R. Evid., under which the disclosure of information in the iCloud

electronic-data-storage account "connected with the litigation pending

before the court" 1 would expressly not effect a waiver of applicable

attorney-client privileges in the underlying proceeding or "any other

Alabama proceeding." It is well settled that a writ of mandamus will not

issue when the petitioner has another adequate remedy. See Ex parte

Fancher, 272 So. 3d 654, 657 (Ala. Civ. App. 2018), and Ex parte J.E.W.,

608 So. 2d 728, 729 (Ala. 1992).

1The attorney-client privilege, which belongs to the law firm's
clients and not the law firm (see Rule 502(b), Ala. R. Evid.), is not waived
by compelled disclosure, see Rule 511, Ala. R. Evid. Ergo, in my view,
the trial court retains the authority to accelerate discovery in a manner
that does not prevent subsequent assertion of potential applicable
privileges, see Transamerica Computer Co. v. International Business
Machines Corp., 573 F.2d 646 (9th Cir. 1978), nor reward the apparently
deliberate destruction of the cellular telephone in question.
19