IN THE



## S UPREME 

## C OURT O F T HE 

## S TATE O F 

## A RIZONA

I SRAEL J OSEPH N ARANJO , P etitioner

v

.

T HE H ONORABLE H OWARD S UKENIC , J UDGE OF THE S UPERIOR C OUR T OF

THE S TATE OF A RIZONA , IN AND FOR THE C OUNTY OF M ARICOPA , Respondent Judge

,

S TATE OF A RIZONA , EX REL

. , K RISTIN K. M AYES , A TTORNEY G ENERAL , Real Party in Interest.

No. CR

- 22

- 0076

- PR
Filed F ebruary 2 8

, 2023

Appeal from the Superior Court in Maricopa County
The Honorable Howard Sukenic

No. CR2007

- 119504

- 001

AFFIRMED AND REMANDED

Order of the Court of Appeals, Division One

No. 1 CA

- SA 22

- 0017
Filed February 22 , 2022

COUNSEL:

Stephen Whelihan (argued)

, Adrian Little, Office of the Legal Advocate,

Phoenix

, Attorney s for Israel Joseph Naranjo

Kr istin K. Mayes

, Arizona Attorney General, Jeffrey Sparks , Deputy
Solicitor General /Section Chief of Capital Litigation , Sarah E. Heckathorne (argued) , Assistant Attorney General , Capital Litigation Section, Gregory Hazard, Senior Litigation Counsel, Capital Litigation Section, Phoenix, Attorney s for State of ArizonaISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

2 David J. Euchner, Pima County Public Defender’s Office , Tucson; Emily Skinner, Arizona Capital Representation Project, Phoenix, Attorneys for

Am ici C uriae Arizona Attorneys for Criminal Justice and Arizona Capital Representation Project

JUSTICE KING authored the O pinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES

BOLICK and BEENE joined

. *

JUSTICE KING, O pinion of the Court:

¶1 In a post

- conviction relief (“PCR”) proceeding , t he superior

court determined that Israel Joseph Naranjo raised a colorable claim for

ineffective assistance of trial counsel . We must now determine whether

the PCR court erred in ordering Naranjo to disclose materials associated

with trial counsel’s interviews of three of Naranjo’s family members who did not testify during the penalty phase of trial

. We conclude the PCR
court did not err in ordering the disclosure of such records

.

I. BACKGROUND

A. Naranjo’s Petition for Post

- Conviction Relief

¶2 “ A jury found [Naranjo] guilty of two counts of first degree

murder and sentenced him to death. ” State v. Naranjo , 234 Ariz. 233, 238 ¶ 1 (2014). This Court affirmed Naranjo’s convictions and sentences on direct appeal. Id. at 250 ¶ 90. Subsequently

, Naranjo filed a petition for
post

- conviction relief (“PCR p etition”) alleging multiple grounds for relief

. One of Naranjo’s PCR claims is that he “received ineffective assistance of

* Justice John R. Lopez IV and Justice William G. Montgomery have recused

themselves from this case.ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

3 counsel in the penalty phase ” (“Claim III”). His PCR petition introduce s Claim III as follows :

Trial counsel’s deficient performance in the penalty phase consisted of numerous errors and omissions, beginning with the failure to adequately investigate mitigating factors. Without an adequate investigation of [intellectual disability]

,

co unsel made it the focus of the penalty phase, making their case for it determinative of the question of life or death, instead of presenting a case for life based on multiple factors. Then, the execution of the chosen strategy was riddled with error throug hout.

The PCR p etition further breaks down Claim III into five sub parts that are

relevant here , which contain the following allegations, among others :

¶3 Claim III(A) : Naranjo assert s his trial counsel’s “performance was deficient in the investigation and presentation of the case for [intellectual disability],” citing Atkins v. Virginia , 536 U.S. 304 , 321 (2002) (holding Eighth Amendment prohibited execution of intellectually disabled criminal) and A.R.S. § 13- 753(K)(3) ( defining “intellectual disability ”).

¶4 Claim III( B): Naranjo allege s trial counsel’s “performance was deficient in its reliance on Dr. Thompson’s testing to prove significantly subaverage intellectual functioning.” Without this and “ other deficiencies in the investigation and presentation of evidence of [intellectual disability]

, there is a reasonable likelihood the outcome of the penalty phase would

have been different. T he li kelihood of a finding of [intellectual disability] is demonstrated by the report of Dr. Reschly .”

¶5 Claim III( C): Naranjo argue s trial counsel’s “performance was deficient by failing to prepare Dr. Switzky to address the IQ scores of Dr. Babich and Dr. Bayless, and to provide notice of the intent to do so.”

¶6 Clai m III( D): Naranjo allege s trial counsel’s “deficient performance in the prep aration of the testimony of Dr. Switzky was manifested in several other ways ,” and this “damaged the credibility of the

defense.” Naranjo claim s , for example, there was a “lack of preparation with the pertinent records ” and “ Dr. Swi tzky was under the impressionISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

4 that Naranjo started school when he was 5 years old, but the records showed that he was 3, going on 4. ”

¶7 Claim III( E): Naranjo argue s trial counsel’s “performance was deficient in preparing for the testimony of Dr. Babich about low intellectual functioning.”

¶8 T he PCR court determined Naranjo’s ineffective assistance of counsel claim in III(A)

– III(E) of the PCR petition is “ colorable and an evidentiary hearing is necessary.” See State v. Runningeagle, 176 Ariz. 59, 63 (1993) (“ The defendant is entitled to an evidentiary hearing only when he presents a colorable claim

— one that, if the allegations are true, might

have changed the outcome.”). The PCR court ordered a hearing on the

“ alleged multiple errors during the investigation, preparation, and presentation of defendant’s alleged intellectual disability, both pre

- trial and in the penalty phase.”

¶9 In the same order, t he PCR c ourt also determined that two claims in Naranjo’s PCR petition are “inextricably intertwined with the one (1)

claim

. . . found colorable .” The first “inextricably intertwined” claim is

“ whether defendant has or can establish by clear and convincing evidence that he is intellectually disabled.” On this claim, Naranjo’s PCR p etition alleges in part: “T here is clear and convincing evidence Naranjo has Intellectual Disability, sufficient to establish that the death penalty would not have been imposed” (Claim XI)

. Naranjo claim s s uch evidence

includes his “full

- scale IQ score,” his “ adaptive behavior deficits by witnesses,” and “the prevalence of low intellectual functioning among members of Naranjo’s relatives.”

¶10 The second “inextricably intertwined” claim is “ whether Defendant’s trial counsel provided ineffective assistance of couns el in the investigation, development, and presentation of mitigation evidence. ” On this claim, Naranjo’s PCR p etition alleges in part that counsel was deficient

in (1 ) “ preparing, presenting, and explaining the testimony of Dr. Babich about other mitigating circumstances” (Claim III(F)) ; (2 ) “failing to present the favorable testimony of Dr. Bayless” (Claim III(I)) ; and (3 ) “failing to investigate, present, and explain evidence of mitigating circumstances” (Claim III(M)).ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

5 ¶11 The PCR c ourt ordered a n evidentiary hearing on the colorable

claim and noted that its ruling on the merits of the two “inextricably

intertwined ” claims would be taken “ under advisement pending the conclusion of the evidentiary hearing.” The PCR c ourt dismissed all other

claims in Naranjo’s PCR petition

.

B. The State’s M otion to C ompel D isclosure of Trial Materials

¶12 Before the evidentiary hearing, the State filed a motion to compel

disclosure of “the complete, unredacted trial files of

. . . trial counsel, trial mitigation specialists, and trial investigators; any unredacted statements from Naranjo’s disclosed evidentiary hearing witnesses; and all materials his post

- conviction expert witnesses relied upon when preparing their reports or testimony for post

- conviction proceedings.” The State sought

“ all billing records, outlines, notes, research, and witness statements ” that “show what counsel knew and investigated when [counsel] pursued their trial strategy in the guilt, aggravation and penalty phases of the trial.” The

State also requested disclosure of statements regarding Naranjo’s lay

witnesses

, arguing he “ waived the attorney

- client privilege

. . . when he

filed his [PCR p etition ] alleging he received ineffective assistance of

counsel.” The State claimed the requested information was related to the

issue of whether trial counsel’s performance was deficient or constituted a reasonable strategy under Strickland v. Washington , 466 U.S. 668 (1984).

¶13 In ruling on the motion to compel, t he PCR court noted it “ holds inherent authority ” to order the disclosure of records in post

- conviction proceedings “ for good cause shown.” T he PCR court ordered that

[Naranjo’s] trial file is discoverable to the State but only as it pertains to defendant’s claim of ineffective assistance of counsel as to the issues previously identified by the Court. That being, whether defense trial c ounsels’ performance was deficient and prejudicial in the investigation, preparation a nd presentation of defendant’s alleged intellectual disability,

both pre

- trial and in the penalty phase. In addition as the

Court took under advisement whether defendant has or can establish by clear and convincing evidence that he is intellectually disabl ed, as well as whether trial counsel provided ineffective assistance of counsel in the investigation,ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

6 development and presentation of mitigation evidence, that portion o f defendant’s file is discoverable as well. This also

extends to all other material rel ied upon by defendant’s
experts.

The order also explained , “ [a] s an intermediate step, defendant must disclose all material provided to or utilized by defendant’s expert(s).” Further, if Naranjo claims privilege over certain items, he must note those items in a privilege log that is produced to the State

.

¶14 T hrough the disclosure of billing records, t he State became

aware that trial counsel interviewed

— but did not call as witnesses

— three

of Naranjo’s family members

. The State sought disclosure of trial

counsel’s records regarding th ese three family

- member interviews

. Naranjo objected , claiming the materials are not relevant and should

remain confidential. At a hearing, t he PCR court ordered Naranjo to
disclose “any documents related to these three particular witnesses

, ” but

allowed Naranjo to redact information “particularly harmful to the defendant or embarrassing” and explain such redactions in a privilege log. 1 In a subsequent written order, the PCR court ordered the disclosure of “all

notes, E mails and any related documents associated with the three [family

member] interviews ” and “ D efense C ounsel may make redactions with clear explanations for those redactions. ”

¶15 Naranjo filed a motion for reconsideration

. The PCR court
denied the motion , explaining the information will assist in showing what

trial counsel “ knew, the reasonableness of their strategy, and whether their performance was constitutionally deficient and whether Defendant suffered prejudice as a result of the employed strategy.” The PCR court
determined the information from these family

- member interviews is

“ either admissible or may lead to admissible, relevant testimony” an d “the State must have at its disposal all information the trial defense team knew and all actions performed in an effort to provide a full and fair picture for this Court to make a ruling.” The PCR court indicated Naranjo was trying

1 The State had interviewed trial counsel who claimed no independent

recollection of most questions discussed during the three family

- member

interviews

.ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

7 to overly restrict the scope of discovery and that he had waived the privilege by filing his PCR petition.

¶16 Naranjo filed a petition for special action in the court of appeals

, but the court declined to accept jurisdiction

. We granted review because

the proper scope of disclosure of trial counsel’s materials when a defendant

has raised a claim of ineffective assistance of counsel is a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3) of

the Arizona Constitution

.

II. DISCUSSION

¶17 “In discovery matters,

. . . the trial judge has broad discretion that we review only for abuse.” State Farm Mut. Auto. Ins. v. Lee

, 199 Ariz. 52, 57 ¶ 12 (2000). When “a judge commits an ‘error of law

. . . in the process of reaching [a] discretionary conclusion,’ he may be regarded as having abused his discretion.” Twin City Fire Ins. v. Burke

, 204 Ariz. 251, 254 ¶ 10 (2003) ( alteration in original) ( quoting Grant v. Ariz. Pub. Serv. Co.,

133 Ariz. 434, 456 (1982))

. W e apply de novo review to the interpretation

of the Arizona Rule s of Criminal Procedure

, State v. Gutierrez

, 229 Ariz. 573,

576 ¶ 19 (2012), and whether a party has waived a privilege, Twin City Fire

Ins.

, 204 Ariz. at 254 ¶ 10.

A

. “ Good Cause ” for Discovery under Rule 32.6(b)(2)

¶18 In Canion v. Cole

, 210 Ariz. 598, 600 ¶ 10 (2005)

, we stated PCR
courts ha ve “inherent authority to grant discovery requests in PCR proceedings upon a showing of good cause.” L ater

, we promulgated

Arizona Rule of Criminal Procedure 32.6 (b)(2) (effective Jan. 1, 2020) to codify Canion ’s holding. The rule also elaborates on the requisite showing

of “good cause” for discovery after a PCR petition is filed :

After Filing a Petition

. A fter the filing of a petition, the court may allow discovery for good cause. To show good cause, the moving party must identify the claim to which the discovery relates and reasonable grounds to believe that the request, if granted, would lead to the discovery of evidence material to

the claim.ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

8 ¶19 Emphasizing the interests of confidentiality in capital cases, Naranjo requests that this Court require the State to demonstrate a

“substantial need” for information before a court may order disclosure in a capital case

, citing the “substantial need” standard in Rule 15.1(g). But t he

relevant rule here ( Rule 32.6(b)(2) ) allows discovery “[a]fter the filing of a petition” with a showing of “good cause .” T ellingly, Rule 32.6(b)(1)—

which allows discovery “[a] fter the filing of a notice but before the filing of a petition ”— contains a “substantial need ” standard. (Emphasis added.)

Also , the “substantial need” language in Rule 15.1(g) applies to the “State’s Disclosures” in “Pretrial Procedures,” which are not at issue here

. Therefore , we decline to adopt a “substantial need” standard for discovery requests after a PCR petition is filed and instead apply the “good cause” requirement enunciated in Rul e 32.6(b)(2).

¶20 We must now decide whether the PCR court correct ly

determined there was good cause for the disclosure of materials associated

with trial counsel’s interviews of the three family member s. 2

¶21 To establish an ineffective assistance of counsel claim under

Strickland , a defendant must first “ show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ’counsel’ guar anteed the defendant by

the Sixth Amendment. ” 466 U.S. at 687; see also id. at 690 ( requiring a
defendant to “ identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment” ). Second, t he defendant must “show that the deficient performance prejudiced the

defense.” Id. at 687.

¶22 Naranjo claims he should not have to disclose the three family

member interview materials because he did not allege trial counsel engaged

2 Here, the PCR court did not rely on Rule 32.6 (b)(2), but instead relied on

the c ourt’s “inherent authority ” under Canion , 210 Ariz. at 600 ¶ 10, finding “good cause” t o order discovery to the same effect

. Th us, although the court should have proceeded under Rule 32.6(b)(2), the analytical approach

is the same

.ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

9 in “acts or omissions” with respect to the three family member s or failed to adequately interview them

. But the “good cause” standard in
Rule 32.6(b)(2) is not so narrow

. Rule 32.6(b)(2) permits discovery where

there are “ reasonable grounds to believe that the request , if granted, would lead to the discovery of evidence material to the claim. ”

¶23 Further , w e reject Naranjo’s contention that “evidence material

to the claim” in Rule 32.6(b)(2) means something more than relevant

, or of especially high probative value. Under Arizona Rule of Evidence 401

,

“ [e] vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” “M ateriality is captured in

Rule 401 ”

— in subsection (b)

— “ by requiring, in order to [ show ] relevance,

that t he fact sought to be proved be ‘ of consequence to the determin ation of

the action. ’ ” See Shirley J. McAuliffe, Ariz ona Prac tice Law of Evidence § 401:2 (4th ed. 2022 ) ; see also Evidence

, Black’s Law Dictionary ( 11 th ed.

2019 ) (defining “ m aterial evidence” as “ [e] vidence having some logical

connection with the facts of the case or the legal issues presented ” ). Accordingly , “materiality” is not a stricter principle than relevancy , nor does it mean something of especially high probative valu e.

¶24 In our application of Rule 32.6(b)(2) , we observe that one of Naranjo’s “inextricably intertwined” claims alleges : “C ompetent counsel would have been guided

. . . by the ABA G uidelines” which state “[i]t is necessary to locate and interview the client’s family members” and a

“multi

- generational investigation frequently discloses significant patterns of family dysfunction,” but “[c]ounsel evidently was not guided by these provisions in this case.” Further, the “standard of practice for mitigation investigation is contained in a declaration of Mary Duran [ d ] ” but “[t]he investigation of mitigation in this case fell far below the standard.”

Durand ’s declaration states “the mitigation investigator conducting the social history must complete in

- depth interviews with

. . . as many individuals as can be located who have known the defendant throughout

his life. ” It further states t hose interviews should include immediate and

extended biological family members.

¶25 Under Rule 32.6(b)(2), we conclude t here are reasonable grounds to believe that materials associated with the three family

- member

interviews would reveal information about Naranjo’s background andISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

10 whether

, based on their statements, trial counsel took additional investigativ e steps that were “the result of reasonable professional judgment.” S ee S trickland , 466 U.S. at 690. Such information is

discoverable to determine , for example : W hat did trial counsel ask the three family member s and w as it the typ e of information identified in Durand’s

declaration ? Did the information provided in th os e three interviews lead

trial counsel to make a reasonable decision to discontinue developing or investigating certain types of mitigation evidence because such evidence

conflict ed with Naranjo’s position in the case ? See id. at 691 ( stating, i n the context of investigations, “ counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary” ). Did the information provide d le a d trial

counsel to make a reasonable decision to cease the investigation into one
area and focus on another area instead? Id. Th us, th ere are reasonable grounds to believe that materials associated with the three family

- member

interviews would lead to the discovery of evidence material to whether trial

counsel was ineffective in the development of mitigation evidence

. See
Rule 32.6(b)(2).

¶26 In addition, we observe that Naranjo’s “inextricably

intertwined” claim a llege s:

• Naranjo “was raised in a family and neighborhood where gangs were prevalent” and p resenting this information would have limited the aggravating impact of the prosecution’s emphasis on anti

- social personality disorder

.

• H is “fatherless upbringing may have been a factor in [certain] aspects of his personality. This would have helped establish a nexus between Naranjo’s disadvantaged background and the

murder .”

• “Dr. Bayless had testimony to offer about mitigating factors including Naranjo’s

. . . cognitive and behavioral impairments ” that

stem from his “ substance abuse ,” and the “ failure to discover and present the information was deficient performance .”

• “Counsel’s performance was also deficient for failing to investigate the effect of sexual abuse on [Naranjo’s] development .”ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

11 • An adequate investigation would have revealed “a disadvantaged background in a family and a community where poverty, physical abuse, substance abuse, domestic violence, sexual abuse, gang activity and criminal conduct were the norm” and “that Naranjo’s childhood was marked by early exposure to alcohol and illegal drugs, neglect, physical abuse, sexual abuse, and criminal activity.” These circumstances “contributed to Naranjo’s mental and emotional dysfunctional development, which led directly to Naranjo killing” the victim. Presenting such evidence likely “would have

led to a different outcome , based on diminished moral culpability .”

• Counsel failed to elicit testimony that could have connected

“ Naranjo’s crimes and his disadvantaged background, emotional problems, and mental illness.”

T here are reasonable grounds to believe the interviews of Naranjo’s three family member s would lead to the discovery of evidence material to these allegations about his background, childhood, and upbringing

. S ee Rule 32.6(b)(2)

.

¶27 F urther, Naranjo’s claim of intellectual disability is at the heart of his claim and the “inextricably intertwined” issues. T here are reasonable grounds to believe the interviews of Naranjo’s three family members would lead to the discovery of evidence material to Naranjo’s claim of intellectual disability

, see Rule 32.6(b)(2)— specifically with respect

to the “adaptive behavior” element of “intellectual disability.” See § 13- 753(K)(3) ( defining “ [i] ntellectual disability” as “a condition based on

a mental deficit that involves significantly subaverage general intellectual functioning, existing concurrently with significant impairment in adaptive behavior, where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen”) ; see also § 13-753(K)( 1) (defining “[a]daptive behavior” as “the effectiveness or degree to which the defendant meets the standards of personal independence and social responsibility expected of the defendant’s age and cultural group”). Accordingly

, we conclude there is good cause for the disclosure of materials

associated with the three family

- member interview s under Rule 32. 6(b)(2).ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

12 B

. Ineffective Assistance of Counsel and Waiver of Privilege

¶28 W e now address the issue of privilege in the context of Naranjo’s

claims. When a defendant raises an ineffective assistance of counsel claim, “[i]t is not only the integrity of the attorney which is at stake but that of the

entire fact

- finding process,” and “the court must have before it all relevant facts relating to the claim .” State v. Moreno , 128 Ariz. 257, 260 (1981) ; see also State v. Cuffle

, 171 Ariz. 49, 52 (1992) ( holding the trial court must have all relevant facts relating to a claim questioning the competency of an
attorney ).

¶29 We have held “[t] he claim of ineffective assistance of counsel is a direct attack on the competenc e of an attorney and constitutes a waiver of the attorney

- client privilege. ” Moreno

, 128 Ariz. at 260 ; see also A.R.S. § 13- 4062(2) (establishing attorney

- client privilege “ as to any communication made by the client to the attorney, or the attorney’s advice given in the course of professional employment”)

. To that end

, Rule 32.6(f) states that a defendant who raises a claim of ineffective

assistance of counsel “ waives the attorney

- client privilege as to any information necessary to allow the State to rebut the claim, as provided by Ariz. R. Sup. Ct . 42, Ethical Rule (“ ER ”) 1.6(d)(4).” 3 Likewise, o ur precedent provides that a party who a ssert s an ineffective assistance of

counsel claim has waive d the attorney

- client privilege as “ to the particular

contentions asserted. ” Cuffle , 171 Ariz. at 51–52 (holding “an attorney should be allowed to defend himself, at least with regard to the particular contentions asserted, by revealing ‘ at least that much of what was previously privileged as is necessary ’” (quoting Moreno , 128 Ariz. at 260) );

S tate v. Zuck , 134 Ariz. 509, 515

– 16 (1982) (stating an “attack on counsel’s
competency [] has waived the attorney

- client privilege as to the contentions asserted”); see also State v. Lawonn , 113 Ariz. 113, 114 (1976) (“By raising on appeal the issue of lack of knowledge of a right waived by a guilty plea, we

3 ER 1.6(a) provides that “[a] lawyer shall not reveal information relating to the representation of a client,” but one exception is in ER 1.6(d)(4): “A lawyer may reveal such information relating to the representation of a client to the extent the lawyer reasonably believes necessary

. . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client



### . . . or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

13 hold that defendant has waived the attorney

- client privilege as to this issue.”)

. Accordingly, by asserting an ineffective assistance of counsel claim, Naranjo has “ waive [d] the attorney

- client privilege as to any information necessary to allow the State to rebut the claim

. ” See
Rule 32.6(f).

¶30 To the extent the documents at issue contain attorney work product, we note the parties did not address whether Naranjo may assert
the work

- product privilege or whether that privilege is instead held by trial

counsel . The parties also did not address whether trial counsel waived the

work

- product privilege by disclosing documents to Naranjo and his new

couns el. See Ariz. Indep. Red istricting Comm’n v. Fields

, 206 Ariz. 130 , 142 ¶ 39 (App. 2003) (“[T]he work

- product privilege is designed to protect mental impressions and theories of attorneys or other client representatives concerning actual or prospective litigation involving the client.” (citing

State ex rel

. Corbin v. Weaver

, 140 Ariz. 123, 12 9 (App. 1984)) )

. Thus , we do

not resolve these issues. But e ven if Naranjo could assert the attorney

work

- product privilege, he has waived th e privilege to the same extent he

has waived the attorney

- client privilege

. S ee s upra ¶ 29 ; Bittaker v. Woodford,

331 F.3d 715, 722 n.6 (9th Cir. 2003) (addressing habeas petitioner’s waiver of attorney

- client privilege by raising ineffective assistance of counsel claim and noting court’s decision “applies equally to the work product privilege”).

C. Other Issues Related to the Disclosure of Materials

¶31 In ordering the disclosure of the three family

- member interview

materials , t he PCR court permitted defense counsel to redact certain
information and provide the State a log describing the basis for such

redactions

. 4 We now provide guidance about appropriate redactions in
this context.

4 The PCR court permitted defendant to redact information that was “particularly harmful to the defendant or embarrassing

. ” However

, Naranjo may not redact non

- privileged information that falls within the scope of discovery under Rule 32.6(b) (2) merely on the basis that it is “harmful” or “embarrassing.” See Rule 32.6(b)

, (f). If Naranjo believesISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

14 ¶32 Naranjo acknowledges “the statements of the three witnesses are not covered by attorney

- client privilege.” But to the extent materials

to be disclosed contain privileged information for which the privilege has

not been waived, Naranjo may redact such privileged information i n his

disclosures to the State

. In that case, Naranjo must then produce a log that establishes the privilege for the redacted information. See State ex rel. Adel

v. Adleman , 252 Ariz. 356, 360–61 ¶¶ 13–14 (2022).

¶33 In addition

, to the extent materials contain ing information

within the scope of Rule 32.6(b)(2) also contain other information outside the scope of Rule 32.6(b)(2 ), Naranjo may redact the information that does

not meet the Rule 32.6(b)(2) standard

. Specifically, h e may redact

information for which there are no reasonable grounds to believe the

information would lead to the discovery of evidence material to his colorable and inextricably intertwined PCR claims

. Se e Rule 32.6(b)(2)

. Such redactions would also require a log that establishes the basis for such

redaction s.

¶34 In the event of any redactions, Naranjo’s log will allow the State to determine whether to pursue an in camera review of any redacted

materials

. If this occurs , the PCR court should follow the process set forth

in Adleman , 252 Ariz. at 360– 61 ¶ ¶ 11–15, and expand it to include

redactions made under Rule 32.6(b)(2)

. “I n a dispute over the existence or scope of [a] privilege, the party claiming the privilege must make a prima facie showing that it applies to each contested ” item. Adleman , 252 Ariz. at 360 ¶ 13 ( citing Clements v. Bernini ex rel. Pima , 249 Ariz. 434, 439– 40 ¶ 8 (2020) ). “Upon a prima facie showing of privilege, the party contesting the privilege must demonstrate a good faith basis that an in camera

review

. . . would reveal waiver of the privilege or establish an applicable exception.” Id. at 361 ¶ 15 ( citing Clements

, 249 Ariz. at 438 ¶ 1 ); see also

United States v. Zolin

, 491 U.S. 554, 572 (1989) (“ Before engaging in in

camera review to determine the applicability of the crime

- fraud exception,

‘ the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person, ’ that in camera review of the materials may reveal evidence to establish the claim that the crime

- fraud exception applies.” (internal citation omitted )).

any such information is “harmful” or “embarrassing,” he may request the

trial court consider other measures (e.g., specific protective orde r terms ).ISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

15 ¶35 Naranjo has emphasized the interest in confidentiality “ in the context of the investigation of the case for mitigation in a capital murder

trial ,” including to “promot[e] frank disclosure by a defendant to his

counsel ” and “enabl[e] [a] thorough investigation of mitigation ” that is fully documented. W e conclude the obligations on a party seeking discovery, in combination with the various protecti ve mechanisms in place

here

, will sufficiently address those concerns

. First, a party seeking discovery after a PCR petition is filed must demonstrate “good cause”

under Rule 32.6(b)(2) before a court orders disclosure

. Second, the

defendant may redact information in the materials that is either privileged

or falls outside the scope of Rule 32.6(b)(2). Se e supra ¶¶ 32–33 . Third,

there is a process for the court to conduct an in camera review of any disputed redactions

. Se e supra ¶ 34. Fourth

, the PCR court here entered

a protective order that “prohibit [s] the State from using, in any retrial or resentencing proceeding, any confidential or privileged information disclosed by Defendant to the State pursuant to any Court Order in post

conviction proceedings.” This ord er also “prohibit[ s ] the Office of the

At torney General from sharing any such information with any other agency of the State including any State law enforcement Agency.” T hese

combined measures properly guard against the disclosure of information that is privileged or falls outside the scope of discovery under

Rule 32.6(b)(2) and sufficiently address confidentiality in the context of capital case investigations

.

¶36 Amici argue a protective order is insufficient to protect the confidentiality of the defense investigation, citing Lambright v. Ryan

, 698 F.3d 808 (9th Cir. 2012). But the procedural process in Lambright did not include other protective measures that are in place here, including permissible redactions, a log that establishes the basis for such redactions, and a process for conducting in camera review of disputed redactions. See
id

. Also, Lambright did not hold that a protective order is insufficient in all

instances. Id.

¶37 Finally, Naranjo argues the State failed to show the materiality

of the documents in question during a hearing pursuant to Waitkus v. Mauet

, 157 Ariz. 339 (App. 1988) . In Waitku s, the court of appeals vacated an

order requiring the production of trial counsel ’ s file to th e prosecution for inspection and copying

. Id. at 340–41. The court explained, “ [t] he trial court may set an evidentiary hearing f or the purpose of taking testimonyISRAEL NARANJO V

. HON. SUKENIC/STATE Opinion of the Court

16 from trial counsel about the specific contentions raised by petitioner .” Id

. Then , “d ocuments specifically relating to the ineffectiveness claim which are the subject of testimony at the hearing could be produced, and the trial court can insure that irrelevant and still privileged material is protected .”

Id. at 341.

¶38 Waitkus , however, aro se in the context of a motion for new trial before sentencing under Ariz ona Rule of Criminal Procedure 24.1 (“Motion for New Trial”). Id. at 339–40. This is vastly different from the proceeding before us

— where the sentence was imposed and the appeal completed

, and the PCR proceeding occur s years after the underlying trial.

Rule 32.6 (b)(2)

, which became effective after Waitkus

, doe s not mandate a Waitkus hearing before discovery is ordered

. While a PCR court may conduct such a hearing if necessary to determine whether “ good cause ” exists to grant a discovery request , such a hearing is not required

. Thus, the trial court did not err in failing to order a Waitkus hearing.

III. CONCLUSION

¶39 We affirm the trial court’s order requiring Naranjo to disclose

materials associated with trial counsel’s interviews of Naranjo’s three family member s consistent with the procedures set forth in this o pinion.

We remand to the trial court for further proceedi ngs consistent with this opinion. We also vacate the stay of proceedings previously entered by this

Court.