Lawyer says Pima County Sheriff Mark Napier, others read, shared privileged emails

A lawyer representing Pima County deputies and corrections officers in lawsuit over wages says the sheriff and others read and shared privileged communication for his clients.

A judge has ordered a special master to investigate.

In 2018, several deputies and corrections officers filed a lawsuit against the county, Sheriff Mark Napier and Operations Chief Karl Woolridge. It claimed the department failed to follow through on more than $12 million in promised pay raises. In February, the claim was amended to include more than 120 plaintiffs. The lawsuit now names Pima County, each individual supervisor, County Administrator Chuck Huckelberry and Napier as defendants.

Also in February, eight deputies filed a separate lawsuit, saying the department violated Arizona’s overtime and minimum wage laws and that Woolridge retaliated when they tried to report problems. Pima County, Napier and Woolridge are all named as defendants in the lawsuit.

Tucson attorney Stephen Portell is representing more than 125 Pima County Sheriff’s Department employees in both cases.

He filed an emergency motion in the most recent case last month to probe his breach claim.

Portell says he was reviewing documents in the cases that had accumulated while he’d been away on vacation and discovered his attorney-client privileged emails filed by lawyers representing Napier and Woolridge, according to the motion.

“Somehow, and at some time within the last year, the County and Napier/Woolridge have come to illegally possess my privileged communications with my clients and THEN (sic) at some unknown time shared those privileged materials with the county attorney’s office and Snell & Wilmer, my opposing counsel,” Portell said in his motion. Snell & Wilmer are representing Napier and Woolridge in the lawsuit. The Pima County Attorney’s Office is representing the county.

The motion includes a spreadsheet with five documents Portell had sent or prepared for clients that were listed as defense trial exhibits by attorneys for Napier and Woolridge. Three documents were marked as attorney-client privilege in the email’s subject line, and included advice, impressions and legal strategy. The other two documents, which were not marked, were unsigned drafts of agreements Portell sent to clients, including some who later decided against pursuing their claims in the current cases, according to the spreadsheet. The documents were all sent by email between Feb. 7 and May 14, 2018.

In one instance, the defendants altered one of Portell’s privileged emails, removing all the identifying header information and language concerning attorney-client privilege, the motion says.

The appointment of a special master is necessary because if the judge assigned to the case were to review the privileged materials, that could lead to her having to recuse herself, Portell said in the motion.

Lawyers for Napier and Woolridge responded to the motion, saying that the documents identified as privileged were “knowingly disclosed” to Woolridge by either a member of the Pima County Deputy Sheriff’s Association or someone to whom an association member shared the materials.

Because the documents were voluntarily shared with the defendants, the attorneys did not engage in any prohibited conduct by sharing them, according to the response.

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Napier and Woolridge disclosed the documents and “stand ready to promptly return them,” the response said, adding that the motion rests on overstated facts and misstated law.

The response proposes a solution, involving defense attorneys agreeing to refrain from further examination of the privileged documents, not to use the information in the privileged documents in litigation of the case and not to accept any privileged documents in the future.

“We will work with the Court and Plaintiffs’ counsel in good faith to address these issues. We have no desire to retain this information or receive any similar information in the future,” the response says.

Pima County Superior Court Judge Cynthia Kuhn appointed John Davis, a retired Superior Court judge to be special master. He is tasked with investigating the alleged breach, how it occurred and if it created an unfair tactical advantage in the cases, according to court documents.

Kuhn also ruled that the defendants will be responsible for paying Davis’ fee of $400 per hour, the documents show.

“Although we generally do not comment on pending litigation, we do wish to clarify that no judicial officer has read the allegedly privileged communications. Therefore, no legal determinations as to the nature of those documents have been made,” according to a statement sent by the county on behalf of Napier and Huckelberry. “Further, no evidence has yet been presented surrounding the dissemination of these documents or arguments presented from the defendants. In proceedings before the special master, both sides will have an opportunity to present evidence and arguments to the special master.”

Davis wasn’t appointed because of a finding of misconduct, the statement said, adding that the special master was instead appointed as a fact finder and legal decision maker.

“Proceedings before the special master are the proper and appropriate venue for presentation of evidence and argument on these issues,” the statement said.

Portell told the Star that he was forced to file the emergency motion after discovering the county’s lawyers were in possession of the privileged communications.

“Each privileged document at issue was boldly and clearly labeled ‘ATTORNEY-CLIENT PRIVILEGED COMMUNICATION’ when I sent it to my clients,” Portell wrote in an email. “How the county came to possess these privileged communications is currently a mystery.”

After the motion was filed, the county and Napier identified two more privileged documents in their possession, Portell said, adding that the county and Napier opposed Portell’s request to appoint a special master.

“The county is now ordered to pay for a special investigation that it did not want,” Portell said. “It is facing unprecedented scrutiny.”

Joseph Kroeger, one of the lawyers representing Napier and Woolridge, declined to comment on the decision, citing pending litigation.