“Granular Privilege Review” Mandated: Anne Carlsen Center v. LeFevre and the New North Dakota Specificity Standard in Discovery Orders

Introduction

Anne Carlsen Center v. LeFevre, 2025 ND 142, is a supervisory writ decision from the North Dakota Supreme Court that reshapes the manner in which trial courts must handle claims of privilege and confidentiality during discovery. The underlying civil action involves sensitive allegations of sexual assault against a minor while in the care of the Anne Carlsen Center (“ACC”), a non-profit provider of services for developmentally disabled individuals.

When the plaintiff sought production of internal ACC documents, ACC asserted multiple protections—attorney-client privilege, work-product, statutory child-abuse report confidentiality (N.D.C.C. § 50-25.1-11), health-care peer review (N.D.C.C. ch. 23-34), and HIPAA privacy rules. The district court ordered wholesale production with little explanation. ACC petitioned for a supervisory writ, arguing that immediate review was necessary to prevent irreversible disclosure of privileged information.

The Supreme Court granted the writ, vacated the discovery order, and announced a new procedural requirement: North Dakota trial courts must issue a detailed, document-by-document, privilege-by-privilege analysis whenever ruling on contested privilege claims, and must expressly address redactions that balance disclosure with confidentiality. The decision also clarifies the burden on withholding parties and stresses the importance of legible, readable documents in in-camera reviews.

Summary of the Judgment

Supervisory Jurisdiction Invoked. The Court determined that the discovery order was not appealable and posed an immediate risk of irreparable harm, justifying extraordinary relief.
District Court Order Vacated. The April 22, 2025 order compelling disclosure is set aside.
Directive to Trial Court. On remand, the court must:
- Evaluate each contested document individually;
- State for each asserted privilege why it applies or not;
- Incorporate or require proposed redactions consistent with any privilege that partially applies;
- Ensure that the withholding party meets its burden with “a level of specificity sufficient for other parties and the court to assess the claim,” including providing readable copies of handwritten or foreign-language documents.
Burden Allocation Affirmed. ACC, as the withholding party, continues to bear the burden of proving each privilege.
Concurring Opinion. Justice Crothers agreed in the result but cautioned against dicta suggesting illegibility alone could defeat a privilege claim absent party argument.

Analysis

a) Precedents Cited

Western Horizons Living Centers v. Feland, 2014 ND 175. Established criteria for issuing supervisory writs: lack of adequate alternative remedy and prevention of injustice. The Court relied heavily on this framework to justify intervention.
Troubadour Oil & Gas, LLC v. Rustad, 2022 ND 191. Reiterated the extraordinary nature of supervisory writs. Cited for the “extraordinary case” threshold.
In re Estate of Nelson, 2015 ND 122. Articulated the requirement that trial courts must explain the evidentiary and legal basis of decisions to permit meaningful review. This case supplies the doctrinal backbone for the new specificity mandate.
Williston Basin Interstate Pipeline Co. v. Factory Mutual Insurance Co., 270 F.R.D. 456 (D.N.D. 2010). Federal authority discouraging unilateral redactions and encouraging judicial review when protective orders exist. Used to support the recommendation that trial courts inspect both unredacted documents and proposed redactions.
Astra Aktiebolag v. Andrx Pharmaceuticals, Inc., 208 F.R.D. 92 (S.D.N.Y. 2002). Stated that privilege cannot be sustained for unintelligible documents absent translation. This principle underpins paragraph 14’s discussion of unreadable handwritten notes.

b) Legal Reasoning

The Court’s reasoning operates on two tracks—procedural adequacy and substantive privilege law:

Procedural Adequacy.
- The district court’s order, confined to generic findings that “privilege does not apply,” violated the requirement that parties and reviewing courts understand the decision’s rationale (Nelson).
- Because disclosure of privileged material cannot be “taken back,” ordinary appeal after final judgment would leave ACC without an adequate remedy, satisfying the first prerequisite for supervisory relief (Western Horizons).
- The Court emphasized the importance of proposed redactions as a practical mechanism to safeguard privacy while enabling discovery, echoing federal best practices (Williston Basin).
Substantive Privilege Law.
- Attorney-Client Privilege: Only communications facilitating legal advice qualify; routine business records do not. The trial court must distinguish between the two.
- Child-Abuse Report Confidentiality (N.D.C.C. § 50-25.1-11): Confidentiality is waived for the subject of the report—in this case, the minor plaintiff. The Court signals that nuanced, document-specific analysis is required.
- Peer Review & HIPAA. These protections are not absolute and can coexist with discovery through redaction and protective orders. The Supreme Court found that sweeping reliance on these statutes without granular explanation was error.

c) Impact of the Judgment

Elevated Drafting Standards for Trial Judges. Discovery orders must now include articulated reasoning and precise rulings, adding transparency but also judicial workload.
Enhanced Privilege Logs. Litigants withholding documents must prepare meticulous logs and, where necessary, supply legible copies or translations. Boilerplate objections will likely fail.
More Frequent Use of Redactions and Protective Orders. The decision encourages partial disclosure as a balance between privacy and relevance, which may streamline or, conversely, complicate discovery negotiations.
Appellate Scrutiny. The North Dakota Supreme Court signaled a willingness to intervene where trial courts do not meet the new specificity benchmark, potentially increasing petitions for supervisory writs.
Broader Influence. Though limited to North Dakota, the ruling aligns with national trends favoring detailed privilege adjudications, making it persuasive authority in other jurisdictions.

Complex Concepts Simplified

Supervisory Writ: An extraordinary order from the Supreme Court directing a lower court to correct a ruling immediately, used only when no other adequate remedy exists.
In-Camera Review: A private inspection of documents by the judge, without disclosure to the opposing party, to decide whether privilege applies.
Privilege Log: A document catalog describing withheld materials, stating date, author, recipients, and the specific privilege claimed.
Attorney-Client Privilege vs. Work-Product:
- Attorney-Client: Protects confidential communications seeking or giving legal advice.
- Work-Product: Applies to materials created in anticipation of litigation, protecting mental impressions and strategy of counsel.
Peer Review Privilege (N.D.C.C. ch. 23-34): Shields candid evaluations of health-care professionals designed to improve quality of care.
HIPAA & Protected Health Information (PHI): Federal law safeguarding patient data but allowing disclosure subject to court order with appropriate protections.

Conclusion

Anne Carlsen Center v. LeFevre inaugurates a “granular privilege review” requirement in North Dakota. Trial courts must now craft discovery rulings that:

Address each document individually and each privilege specifically;
Articulate reasons for sustaining or rejecting every claim;
Incorporate redactions to harmonize disclosure with confidentiality;
Ensure legibility and readability of materials submitted for in-camera inspection;
Facilitate meaningful appellate review.

This heightened standard promotes transparency and fairness, ensuring that sensitive materials remain protected without impeding legitimate discovery. Attorneys must prepare for more exacting judicial scrutiny, while judges must allocate additional time to produce detailed orders. Ultimately, the decision brings North Dakota practice into closer alignment with federal norms and advances the jurisprudential goal of reasoned, reviewable trial-court decision-making.