New Opinions: July 31

Highlight: A petition for supervisory writ is granted.

In ruling on a motion to compel, the district court must state the reasons for its conclusions with sufficient specificity to afford a clear understanding of its decision and allow for meaningful review.

The withholding party's burden to prove an asserted privilege or protection applies presumes a burden to submit the disputed documents for in-camera review in a form that is readily intelligible to the district court. If the district court is unable to discern the content of a document, it may require the withholding party to assist the court, including by providing a readable copy.

Section 50-25.1-11, N.D.C.C., designates as confidential a "report made under this chapter, as well as any other information obtained." Although "report made" and "information obtained" lack a subject, in context it is clear that the statute refers to reports made to the Department of Health and Human Services. Even if information in a document is later included in a report subject to N.D.C.C. ch. 50-25.1, it is the report and the other information obtained by the Department in association with that report that is confidential.

Documents do not become confidential or privileged by attaching them to a confidential report or privileged email. The lawyer-client privilege protects confidential communications themselves and not necessarily the facts underlying the communications.

A party asserting work-product privilege may not rely on "in anticipation of litigation" as magic words that automatically protect a disputed document from disclosure. The inchoate possibility, or even the likely chance of litigation, does not give rise to work product. To justify work product protection, the threat of litigation must be real and imminent.