2023 UT App 8

THE UTAH COURT OF APPEALS

JONES WALDO HOLBROOK & MCDONOUGH PC, KENNETH A.

OKAZAKI, AND CHRISTOPHER L. PAULSON,

Appellants,

v.

3293 HARRISON BLVD. LLC,

Appellee.

Opinion

No. 20220142-CA

Filed January 20, 2023

Second District Court, Ogden Department

The Honorable Jennifer L. Valencia

No. 200906357

Kenneth B. Black, Wesley Harward, and Samuel C. 

Straight, Attorneys for Appellants

Aaron R. Harris, Steven C. Smith, and Kipp S. Muir, 

Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES GREGORY K. ORME and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Kenneth A. Okazaki and his law firm, Jones Waldo 

Holbrook & McDonough PC (Jones Waldo), assisted their client, 

Christopher L. Paulson, (collectively, Appellants) in recording a 

Notice of Lis Pendens against property located in Ogden, Utah 

(the Property), which was owned by 3293 Harrison Blvd. LLC 

(Harrison). At the time, Okazaki and Jones Waldo were 

representing Christopher in his divorce from Trishna Paulson,

and Trishna, a member of Harrison, was attempting to sell the 

Property. Harrison subsequently filed a complaint alleging 

wrongful lien and intentional interference with economic 
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relations. In the course of discovery, Harrison sought documents 

from Jones Waldo that Appellants alleged were protected by the 

attorney-client and work-product privileges. Harrison filed two 

statements of discovery issues (SODIs)1 relating to Jones Waldo’s 

compliance with the discovery requests. The district court granted 

relief with respect to both SODIs. Appellants sought, and this 

court granted, interlocutory review of the district court’s orders. 

On appeal, we are asked to determine whether the district court 

erred in granting the requested relief. Because the justification 

provided by the district court in its order did not support its 

decision to require production, we reverse its grant of one of the 

two SODIs.

BACKGROUND

¶2 Okazaki, an attorney who worked for Jones Waldo, 

represented Christopher in his divorce from Trishna. The district 

court’s temporary orders in the divorce case prohibited either 

party from “dissipat[ing] any marital asset outside of the regular 

course of the parties’ businesses and their historical practices.”

(Quotation simplified.)

¶3 During their marriage, Christopher and Trishna organized 

and were co-managers of Harrison. Harrison owns the Property. 

A trust created by the Paulsons held an 89.22% membership 

interest in Harrison, while the Paulsons’ four children each held a 

1. Rule 37 of the Utah Rules of Civil Procedure outlines the

procedure parties must follow when seeking the court’s 

resolution of a discovery dispute and a discovery order. Parties 

alleging incomplete discovery responses or that responsive 

documents have been withheld must first file a short “statement

of discovery issues” with the court outlining, among other things, 

the relief sought and certifying that the party has in good faith 

conferred or attempted to confer with the other affected parties. 

Utah R. Civ. P. 37(a).
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2.695% membership interest. The Property was purchased using 

premarital funds belonging to Trishna, and the operating 

agreement for Harrison prohibited any equity owner from 

recording a lis pendens on property owned by the company.

¶4 While the temporary orders for the Paulsons’ divorce were 

in place, Harrison finalized a commercial real estate purchase 

contract (the REPC) to sell the Property for $2,050,000. Upon 

learning of the REPC, Okazaki, on behalf of Christopher, recorded 

a Notice of Lis Pendens2 with the Weber County Recorder and 

sent a letter to the Property’s listing agent demanding that the 

agent immediately withdraw any offers or acceptance of offers on 

the Property. Subsequently, the buyer for the Property canceled 

the REPC.

¶5 Eventually, Appellants released the lis pendens, and in the 

divorce proceedings, Trishna succeeded in an unopposed motion 

for summary judgment determining that the trust’s membership 

interest was her separate property rather than marital property. 

Harrison then sued Appellants, alleging claims for wrongfully 

recording the lis pendens and intentional interference with 

economic relations.

¶6 Appellants filed a motion for summary judgment on 

Harrison’s claims, but the district court denied the motion. The 

2. Under Utah’s lis pendens statute, “[a]ny party to an action . . . 

that affects the title to, or the right of possession of, real property 

may file a notice of pendency of action.” Utah Code Ann. § 78B-6-

1303(1)(a) (LexisNexis 2018). “The recording of a lis pendens 

provides constructive notice to all persons that the rights and 

interests in the property at issue are controverted. One who

purchases property subject to a lis pendens acquires only the 

grantor’s interest therein, as determined by the outcome of the

litigation.” Jordan Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017 

UT 28, ¶ 38, 408 P.3d 296 (quotation simplified).
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court explained that, based upon the undisputed facts submitted 

for purposes of the motion, it was “reasonable to infer that at the 

time the Notice [of Lis Pendens] was recorded . . . , all the 

[Appellants] knew the . . . Property was not an asset subject to 

division in the divorce and that no legal action against it had been 

filed,” and that the Notice of Lis Pendens was therefore 

“groundless and consequently contained an intentional material 

misstatement or false claim.”

¶7 In the course of subsequent discovery in the wrongful lien 

litigation, Harrison requested that Appellants identify “each 

communication between any attorney, paralegal, legal secretary, 

and/or other agent of Jones Waldo” and Christopher “that related, 

in any way, to the preparation and/or recording” of the Notice of 

Lis Pendens (Interrogatory No. 1). Harrison also made the same 

request regarding Jones Waldo’s internal communications 

(Interrogatory No. 2) and requested that Jones Waldo produce all 

documents identified in Interrogatory No. 1 and Interrogatory 

No. 2. Jones Waldo objected to these discovery requests on the 

ground that they sought information protected by the attorneyclient privilege and the attorney-work-product privilege.

3 The 

parties participated in a “meet and confer” regarding Jones 

Waldo’s objections, and Jones Waldo agreed to provide a limited 

response to the interrogatories and to produce a privilege log of 

withheld and redacted documents that it deemed privileged.

¶8 Harrison then filed two SODIs with the district court. The

first SODI alleged that Jones Waldo had refused to respond to 

Interrogatory No. 1 and had not provided a privilege log

regarding communications between Jones Waldo and 

Christopher. The second SODI asked the court to order Jones 

Waldo to produce the requested documents and communications 

on the grounds that (1) Jones Waldo waived attorney-client 

privilege by denying allegations in Harrison’s complaint, (2) Jones 

3. The divorce litigation was still ongoing at that time.
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Waldo had put any communications related to the lis pendens at 

issue by denying the allegations in Harrison’s complaint, and 

(3) the privilege does not apply to communications made in 

furtherance of fraud. Both SODIs also asked for an award of 

attorney fees.

¶9 Jones Waldo responded that it had, in fact, included 

“multiple communications between Jones Waldo and

[Christopher]” in its privilege and redaction logs and that it had 

fully responded to Interrogatory No. 1. It further explained that 

the parties did not actually discuss Interrogatory No. 1 during the 

meet and confer and that Harrison had never “indicated, prior to 

the filing of [the first SODI], that Jones Waldo’s logs did not 

contain the communications between Jones Waldo and 

[Christopher].” Jones Waldo also continued to assert that the 

attorney-client and work-product privileges applied to the 

requested communications.

¶10 The district court did not hear oral argument on the SODIs. 

Instead, it issued orders granting the relief requested by Harrison. 

As to the first SODI, the court determined that Jones Waldo had 

not responded to Interrogatory No. 1, “as modified by the parties’ 

meet and confer,” and ordered it to do so within seven days. As 

to the second SODI, the court made the following determination:

[F]acts and communications related to any of the 

following subjects are directly at issue in this case 

and, therefore, are not protected from discovery by 

the attorney-client communication and/or work 

product privilege(s): [1] any Defendant’s 

consideration of the Notice of Lis Pendens at issue 

in this case, [2] research regarding facts and/or law 

related to the Notice of Lis Pendens at issue in this 

case, [3] drafting of the Notice of Lis Pendens at 

issue in this case, [4] recording, or causing to [be]

recorded, the Notice of Lis Pendens at issue in this 
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case, and/or [5] any response to any demand by 

Plaintiff to remove, release, and or withdraw the 

Notice of Lis Pendens at issue in this case.

As to both SODIs, the court ordered Jones Waldo to pay 

Harrison’s attorney fees incurred in pursuing the court’s 

resolution of the discovery issues.

¶11 Jones Waldo sought—and we granted—interlocutory 

review of the district court’s determination that Jones Waldo had 

not fully responded to the discovery request, its determination 

that the requested documents and communications were not 

privileged, and its award of attorney fees. Jones Waldo also

obtained a stay of enforcement of the court’s orders pending the 

outcome of this appeal.

ISSUE AND STANDARD OF REVIEW

¶12 Appellants challenge the district court’s determination that 

the attorney-client and work-product privileges do not apply in 

the context of this case. “The existence of a privilege is a question 

of law for the court, which we review for correctness, giving no 

deference to the district court’s determination.” Chard v. Chard, 

2019 UT App 209, ¶ 31, 456 P.3d 776 (quotation simplified).

ANALYSIS

I. The First SODI

¶13 On appeal, Appellants contest the district court’s ruling on 

both SODIs. However, their entire argument focuses on the 

applicability of the attorney-client and work-product privileges to 

the discovery requested by Harrison. While this argument is 

persuasive with respect to the district court’s grant of relief with 

respect to the second SODI, see infra section II, it does not 
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adequately address the district court’s basis for granting relief 

with respect to the first SODI.

¶14 In the first SODI, Harrison alleged that Jones Waldo had 

not provided “any response to Interrogatory [No.] 1, and did not 

provide any log of withheld (based on privilege) communications 

between Jones Waldo and Christopher.” Jones Waldo objected 

that it had, in fact, responded to Interrogatory No. 1 and had 

turned over a privilege log. Nevertheless, the court granted relief 

with respect to the first SODI on the basis that Jones Waldo had 

“not responded to [Harrison’s] Interrogatory No. 1 (as modified 

by the parties’ meet and confer), and the deadline for responding 

has passed.” Thus, the court’s determination on the first SODI

appears to have turned, not on the question of privilege, but on

whether Jones Waldo had provided the response to Interrogatory 

No. 1 that it had agreed to provide in the parties’ meet and confer. 

But Appellants’ arguments on appeal do not address this 

question; rather, they focus solely on the question of privilege. 

Because Appellants have not adequately addressed the basis of 

the district court’s decision with respect to the first SODI, we 

decline to disturb that decision. See, e.g., Carlton v. Brown, 2014 UT 

6, ¶ 48, 323 P.3d 571 (declining to consider a claim on appeal 

where the appellant did not “engage the district court’s analysis” 

of that issue).

¶15 Appellants’ argument is likewise deficient with respect to 

the district court’s award of attorney fees in relation to the first 

SODI. Their attorney fee argument asserts that even if the district 

court correctly granted the first SODI, it abused its discretion in 

awarding fees because their position regarding privilege was 

“substantially justified.” See Utah R. Civ. P. 37(7)(K) (providing 

for an award of attorney fees in relation to discovery issues if a 

“party, witness, or attorney did not act in good faith or asserted a 

position that was not substantially justified”). However, they 

have not argued that their position that Jones Waldo had 

complied with Interrogatory No. 1, as modified by the meet and 
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confer, was substantially justified. Thus, we have no basis on 

which to reverse the district court’s award of attorney fees with 

respect to the first SODI.4

II. The Second SODI

¶16 With respect to the second SODI, the district court 

determined that the attorney-client and work-product privileges 

do not apply to this case and that Jones Waldo was therefore 

required to produce the requested communications. However, the 

only justification the district court provided for this determination 

was that subjects relating to the lis pendens “are directly at issue 

in this case.”5 We do not agree that subjects generally being at 

4. In the district court, Jones Waldo did argue that it had complied 

with Interrogatory No. 1 and that its response to Interrogatory 

No. 1 was not discussed during the meet and confer. It is unclear 

why the district court did not address this assertion in its order, 

but as Jones Waldo has not raised any arguments regarding the 

adequacy or accuracy of the district court’s findings regarding its 

compliance with Interrogatory No. 1, we are not in a position to 

review the court’s finding that Jones Waldo had not responded.

5. This is a vague justification, and the court did not elaborate on 

this conclusion or make any factual findings in support of it. 

Appellants interpret the district court’s ruling as concluding that 

the communications and work product in this case are not subject 

to privilege at all and argue that we should reverse on the basis 

that this conclusion was clearly in error. Harrison, on the other 

hand, urges us to read the district court’s ruling as incorporating 

all the arguments it made to the district court concerning waiver 

and the crime/fraud exception and to infer factual findings in 

support of those arguments.

We are not convinced that the district court would have 

concluded that the privileges were entirely inapplicable to the 

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issue in a case is a sufficient basis to disregard the attorney-client 

or work-product privileges.

6

types of communications at issue in this case, as Appellants 

suggest. And as we will discuss, see infra note 6, we do not believe 

the district court’s decision may be reasonably read as relying on 

the crime/fraud exception. Rather, the decision is most logically 

read as relying on a theory of waiver, as waiver may be based on

the client placing attorney-client communication “at issue” in the 

case, see Chard v. Chard, 2019 UT App 209, ¶ 63, 456 P.3d 776

(quotation simplified), and the court’s conclusion rested on the 

communications being “at issue.” Accordingly, our analysis 

focuses primarily on the question of whether the attorney-client 

or work-product privileges were waived.

6. Harrison urges us to read the district court’s decision as 

adopting Harrison’s argument that the crime/fraud exception to 

the attorney-client privilege applies. See generally Utah R. Evid.

504(d)(1) (providing an exception to the attorney-client privilege 

where “the services of the legal professional were sought or 

obtained to enable or aid anyone to commit . . . a crime or fraud”). 

However, there is nothing in the district court’s decision to 

suggest that it applied that exception to defeat the privilege.

Harrison nevertheless argues that we should affirm on the 

alternative basis of the crime/fraud exception. To affirm on an 

alternative basis, we would have to do so on a ground or theory 

that is “apparent on the record,” see Bailey v. Bayles, 2002 UT 58, 

¶ 10, 52 P.3d 1158 (quotation simplified), that is, we would have 

to conclude that “sufficient and uncontroverted evidence 

support[s] the ground or theory” so as “to place a person of 

ordinary intelligence on notice that the prevailing party may rely 

thereon on appeal” and that the ground or theory is “sustainable 

by the factual findings of the trial court,” see In re A.B., 2022 UT 

39, ¶ 45 (quotation simplified). A ground is not apparent on the 

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¶17 With respect to the attorney-client privilege, the Utah Rules 

of Evidence provide,

A client has a privilege to refuse to disclose, and to 

prevent any other person from disclosing, 

confidential communications if: (1) the 

communications were made for the purpose or in 

the course of obtaining or facilitating the rendition 

of legal services to the client; and (2) the 

communications were: (A) between (i) the client . . . 

and (ii) the legal professional [or] the legal 

professional’s representatives . . . .

record where “further record development [is] necessary.” 

Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT App 29, ¶ 26, 

344 P.3d 180.

Harrison maintains that the court made “findings” in its

earlier ruling denying Appellants’ motion for summary judgment

that should be construed as a determination that the 

communications at issue were made in furtherance of a crime or

fraud. But the court did not find in its summary judgment ruling 

that Appellants committed fraud—indeed, courts do not make 

factual findings in ruling on motions for summary judgment. See 

Larson v. Stauffer, 2022 UT App 108, ¶ 25, 518 P.3d 175; iDrive 

Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 51, 424 P.3d 

970. Instead, it merely determined that a finder of fact could find, 

considering the “facts in a light most favorable to” Harrison, that 

Appellants had made “an intentional material misstatement or 

false claim.” “To invoke the crime-fraud exception, a party 

challenging the attorney-client privilege must make a prima facie 

showing that the communication was made in furtherance of a 

crime [or] fraud.” Transonic Sys., Inc. v. Non-Invasive Med. Tech., 

192 F.R.D. 710, 715 (D. Utah 2000) (quotation simplified). There is 

simply nothing to suggest that such a prima facie showing was 

made, much less that it was apparent on the record.
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Utah R. Evid. 504(b). However, the privilege may be waived by a 

client who “discloses or consents to the disclosure of any 

significant part of the matter or communication.” Id. R. 510(a)(1).

¶18 “One common way to waive the attorney-client privilege 

is to place at issue in litigation matters that implicate attorneyclient communications.” Chard v. Chard, 2019 UT App 209, ¶ 63, 

456 P.3d 776 (quotation simplified). This occurs “when the party 

seeking application of the attorney-client privilege places 

attorney-client communications at the heart of a case” and 

requires that “the client assert[] a claim or defense” and attempt 

“to prove that claim or defense by disclosing or describing an 

attorney client communication.” Krahenbuhl v. Cottle Firm, 2018 

UT App 138, ¶ 9, 427 P.3d 1216 (quotation simplified); see also 

Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d

Cir. 1994) (“[A] party can waive the attorney client privilege by 

asserting claims or defenses that put his or her attorney’s advice 

in issue in the litigation. . . . A defendant may also waive the 

privilege by asserting reliance on the advice of counsel as an 

affirmative defense.”). In other words, a party “cannot invoke the 

attorney-client privilege to deny [another party] access to the very 

information that [party] must refute in order to succeed against” 

the privilege holder’s claim or defense. See Terry v. Bacon, 2011 UT 

App 432, ¶ 17, 269 P.3d 188 (quotation simplified).

¶19 Harrison asserts that Christopher “waived the attorney

client privilege by placing his attorney-client communications at 

the heart of this case.” In support of this argument, Harrison 

points to the allegations raised in its complaint that (1) Appellants 

acted together with authority from each other, (2) recording the 

lis pendens went beyond any legitimate representation of 

Christopher, (3) Appellants knew or should have known that the 

lis pendens was groundless, (4) Appellants lacked an honest belief 

that the lis pendens was proper, and (5) Appellants’ conduct was 

willful, malicious, or intentional, or it recklessly disregarded the 

rights of others. Harrison then asserts that because these 
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allegations formed the basis of its claims, Christopher’s denial of 

the allegations put any privileged attorney-client 

communications pertaining to them at issue.

¶20 We are not persuaded that a mere denial of allegations in a 

complaint is enough to waive the attorney-client privilege simply 

because the allegations concern matters on which confidential 

attorney-client communications may shed light. The fact that a 

defendant denies allegations of wrongful conduct does not 

necessarily introduce into the case the contents of protected and

confidential attorney-client communications. To waive the 

attorney-client privilege, the party asserting the privilege must 

rely on a defense that at least requires the examination of the 

confidential communications. Were we to accept Harrison’s 

position, any person who engages the services of a lawyer and 

discloses to their attorney confidential information pertaining to 

a case in which they are a defendant would be faced with the 

dilemma of either admitting all allegations raised against them in 

a complaint or waiving their attorney-client privilege. This would 

be an absurd result that does not comport with our caselaw on 

waiver of the attorney-client privilege. While we recognize that 

“the privilege which protects attorney-client communications 

may not be used both as a sword and a shield,” id. (quotation 

simplified), Harrison did not argue and the district court did not 

find that Christopher attempted to assert the privilege as a sword 

in this case.7 So far as we can tell, Appellants’ denials of liability 

7. On appeal, Harrison asserts that Christopher’s “Rule 26 

disclosures of witnesses also waived any privilege because he 

claims he may testify himself and call his attorneys at Jones Waldo 

. . . to testify at trial about Jones Waldo’s representation and the 

Lis Pendens.” However, this argument does not appear to have 

been made to the district court. And given that Christopher’s 

attorneys are parties to this case, we are not convinced that 

disclosing them as potential witnesses necessarily has the same 

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and of the claims of wrongful conduct have not yet injected

defenses into the case that will rely on any protected 

communications.8 And without such a finding, the court’s 

impact on the attorney-client privilege as it did in Chard v. Chard, 

2019 UT App 209, 456 P.3d 776, where the attorneys were not 

parties to the case. See id. ¶¶ 64–65 (holding that listing attorneys 

as witnesses in initial disclosures while broadly stating that they 

would testify about “matters in the pleadings,” placed “the 

attorneys’ knowledge—about all matters raised in the 

pleadings—at issue in the litigation” (quotation simplified)). In 

any event, we are unwilling to make such a determination where 

this argument is unpreserved for our review.

Nevertheless, we acknowledge the possibility that, as 

litigation proceeds, Christopher may raise defenses that could 

waive the attorney-client privilege. Additionally, Harrison may 

have other means of accessing some of the information contained 

in the privileged communications, such as by deposing Okazaki

and other attorneys and asking them what they personally knew 

at the time the lis pendens was recorded.

8. Harrison points to Christopher’s deposition where he refused, 

on grounds of attorney-client privilege, to answer questions about 

why he recorded the lis pendens and whether he relied on his 

attorneys in doing so. He also stated that he had not made 

decisions about the lis pendens independent of his lawyers. 

Harrison asserts that these statements implicated the attorneyclient privilege and showed that he had placed his attorneys’ 

knowledge at issue. We disagree with Harrison’s assessment. 

Harrison’s position appears to be that Christopher was required 

to either answer questions about communications he claimed 

were privileged or waive the privilege by refusing to answer. 

Such a conclusion would render the attorney-client privilege 

essentially meaningless. Moreover, we do not construe 

Christopher’s statement that he did not act independently of his 

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conclusion that the attorney-client privilege did not apply under 

the facts of this case was erroneous.

¶21 Like attorney-client communications, attorney work 

product “prepared in anticipation of litigation or for trial” is 

subject to privilege. Utah R. Civ. P. 26(b)(6). And like the attorneyclient privilege, the work-product privilege may be waived 

through disclosure. See State v. McNearney, 2005 UT App 133, ¶ 15, 

110 P.3d 183. Moreover, a party seeking discovery may overcome 

the privilege by showing (1) that they have a “substantial need of 

the materials” and (2) that they are “unable without undue 

hardship to obtain substantially equivalent materials by other 

means.” Utah R. Civ. P. 26(b)(6).

¶22 We reject the district court’s conclusion that Jones Waldo’s 

work-product privilege was waived due to the subject matter 

being “at issue” for the same reason we reject that conclusion with 

respect to attorney-client communications. Harrison also asks us 

to infer that the court recognized its need of the materials and 

inability to obtain equivalent materials. But we are unable to 

stretch the district court’s decision that far. Even if we were to 

construe the court’s finding that certain subjects were “at issue” 

as a finding that Harrison had a substantial need of the privileged 

materials, there is nothing in the court’s ruling that can be 

construed as addressing whether Harrison was able “without 

undue hardship to obtain substantially equivalent materials by 

other means.” See id. Without such a finding, the court could not

readily disregard the work-product privilege.

¶23 Because the court erred in concluding that the attorneyclient and work-product privileges did not apply, its grant of the 

relief requested in the second SODI was erroneous. Accordingly, 

lawyers to assert a defense of good-faith reliance on counsel. See

generally Doe v. Maret, 1999 UT 74, ¶ 9, 984 P.2d 980, overruled on 

other grounds by Munson v. Chamberlain, 2007 UT 91, 173 P.3d 848.
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the court also erred in awarding Harrison its attorney fees related 

to the second SODI.

CONCLUSION

¶24 Because Appellants have not adequately challenged the 

basis of the district court’s grant of relief with respect to the first 

SODI, we decline to disturb its decision concerning that order. 

However, we vacate the district court’s grant of relief with respect 

to the second SODI, including its award of attorney fees, and 

remand this case for further proceedings consistent with this 

opinion.