IN THE

SUPREME COURT OF THE STATE OF ARIZONA

ISRAEL JOSEPH NARANJO,

Petitioner

v.

THE HONORABLE HOWARD SUKENIC, JUDGE OF THE SUPERIOR COURT OF 

THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,

Respondent Judge,

STATE OF ARIZONA, EX REL., KRISTIN K. MAYES, ATTORNEY GENERAL,

Real Party in Interest.

No. CR-22-0076-PR

Filed February 28, 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, Attorneys for Israel Joseph Naranjo

Kristin 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, 

Attorneys for State of Arizona
ISRAEL 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 

Amici Curiae Arizona Attorneys for Criminal Justice and Arizona Capital

Representation Project

JUSTICE KING authored the Opinion of the Court, in which CHIEF 

JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES

BOLICK and BEENE joined.*

JUSTICE KING, Opinion of the Court:

¶1 In a post-conviction relief (“PCR”) proceeding, the 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 petition”) 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 introduces 

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], 

counsel 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 throughout.

The PCR petition further breaks down Claim III into five subparts that are 

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

¶3 Claim III(A): Naranjo asserts 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 alleges 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. The likelihood of a finding of [intellectual disability]

is demonstrated by the report of Dr. Reschly.” 

¶5 Claim III(C): Naranjo argues 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 Claim III(D): Naranjo alleges trial counsel’s “deficient 

performance in the preparation of the testimony of Dr. Switzky was 

manifested in several other ways,” and this “damaged the credibility of the 

defense.” Naranjo claims, for example, there was a “lack of preparation 

with the pertinent records” and “Dr. Switzky was under the impression 
ISRAEL 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 argues trial counsel’s “performance was 

deficient in preparing for the testimony of Dr. Babich about low intellectual 

functioning.”

¶8 The 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, the PCR court 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 petition 

alleges in part: “There is clear and convincing evidence Naranjo has

Intellectual Disability, sufficient to establish that the death penalty would 

not have been imposed” (Claim XI). Naranjo claims such 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 counsel in the 

investigation, development, and presentation of mitigation evidence.” On 

this claim, Naranjo’s PCR petition 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 court ordered an 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 court dismissed all other 

claims in Naranjo’s PCR petition. 

B. The State’s Motion to Compel Disclosure 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 petition] 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, the PCR court noted it “holds 

inherent authority” to order the disclosure of records in post-conviction 

proceedings “for good cause shown.” The 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 counsels’ performance was 

deficient and prejudicial in the investigation, preparation and 

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 disabled, 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 of defendant’s file is discoverable as well. This also 

extends to all other material relied 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 Through the disclosure of billing records, the 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 these three family-member interviews. 

Naranjo objected, claiming the materials are not relevant and should 

remain confidential. At a hearing, the 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, Emails and any related documents associated with the three [familymember] interviews” and “Defense Counsel 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” and “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)). We apply de novo review to the interpretation 

of the Arizona Rules 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 have “inherent authority to grant discovery requests in PCR 

proceedings upon a showing of good cause.” Later, 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. After 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 the

relevant rule here (Rule 32.6(b)(2)) allows discovery “[a]fter the filing of a 

petition” with a showing of “good cause.” Tellingly, 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 Rule 32.6(b)(2). 

¶20 We must now decide whether the PCR court correctly 

determined there was good cause for the disclosure of materials associated 

with trial counsel’s interviews of the three family members.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’ guaranteed 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, the 

defendant must “show that the deficient performance prejudiced the 

defense.” Id. at 687. 

¶22 Naranjo claims he should not have to disclose the three familymember 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 court’s “inherent authority” under Canion, 210 Ariz. at 600 ¶ 10, finding

“good cause” to order discovery to the same effect. Thus, 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 members 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, we 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.” “Materiality is captured in 

Rule 401”—in subsection (b)—“by requiring, in order to [show] relevance, 

that the fact sought to be proved be ‘of consequence to the determination of

the action.’” See Shirley J. McAuliffe, Arizona Practice Law of Evidence

§ 401:2 (4th ed. 2022); see also Evidence, Black’s Law Dictionary (11th ed. 

2019) (defining “material 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 value.

¶24 In our application of Rule 32.6(b)(2), we observe that one of 

Naranjo’s “inextricably intertwined” claims alleges: “Competent counsel 

would have been guided . . . by the ABA Guidelines” 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 those interviews should include immediate and 

extended biological family members.

¶25 Under Rule 32.6(b)(2), we conclude there are reasonable 

grounds to believe that materials associated with the three family-member 

interviews would reveal information about Naranjo’s background and
ISRAEL NARANJO V. HON. SUKENIC/STATE

Opinion of the Court

10 

whether, based on their statements, trial counsel took additional 

investigative steps that were “the result of reasonable professional 

judgment.” See Strickland, 466 U.S. at 690. Such information is 

discoverable to determine, for example: What did trial counsel ask the three 

family members and was it the type of information identified in Durand’s 

declaration? Did the information provided in those three interviews lead

trial counsel to make a reasonable decision to discontinue developing or 

investigating certain types of mitigation evidence because such evidence 

conflicted with Naranjo’s position in the case? See id. at 691 (stating, in 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 provided lead trial 

counsel to make a reasonable decision to cease the investigation into one 

area and focus on another area instead? Id. Thus, there 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 alleges: 

• Naranjo “was raised in a family and neighborhood where gangs 

were prevalent” and presenting this information would have limited

the aggravating impact of the prosecution’s emphasis on anti-social 

personality disorder. 

• His “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.”

There are reasonable grounds to believe the interviews of Naranjo’s three 

family members would lead to the discovery of evidence material to these 

allegations about his background, childhood, and upbringing. See 

Rule 32.6(b)(2). 

¶27 Further, Naranjo’s claim of intellectual disability is at the heart 

of his claim and the “inextricably intertwined” issues. There 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 interviews 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 We 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 competence 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, our

precedent provides that a party who asserts an ineffective assistance of 

counsel claim has waived 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)); 

State 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 

counsel. See Ariz. Indep. Redistricting 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, 129 (App. 1984))). Thus, we do 

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

work-product privilege, he has waived the privilege to the same extent he 

has waived the attorney-client privilege. See supra ¶ 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, the 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 believes 
ISRAEL 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 in 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 containing 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, he 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. See Rule 32.6(b)(2). 

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

redactions. 

¶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). “In 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 order 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. We conclude the obligations on a party seeking 

discovery, in combination with the various protective 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). See supra ¶¶ 32–33. Third, 

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

disputed redactions. See 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 postconviction proceedings.” This order also “prohibit[s] the Office of the 

Attorney General from sharing any such information with any other agency 

of the State including any State law enforcement Agency.” These 

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 Waitkus, the court of appeals vacated an 

order requiring the production of trial counsel’s file to the prosecution for 

inspection and copying. Id. at 340–41. The court explained, “[t]he trial

court may set an evidentiary hearing for the purpose of taking testimony 
ISRAEL NARANJO V. HON. SUKENIC/STATE

Opinion of the Court

16 

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

Then, “documents 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, arose in the context of a motion for new trial 

before sentencing under Arizona 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 occurs years after the underlying trial. 

Rule 32.6(b)(2), which became effective after Waitkus, does 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 members consistent with the procedures set forth in this opinion. 

We remand to the trial court for further proceedings consistent with this 

opinion. We also vacate the stay of proceedings previously entered by this 

Court.