Green v. Nygaard

Decision Date28 September 2006
Docket NumberNo. 2 CA-SA 2006-0062.,2 CA-SA 2006-0062.
Citation213 Ariz. 460,143 P.3d 393
PartiesLisa Frank GREEN, Petitioner, v. Hon. Karen NYGAARD, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and James Green, Real Party in Interest.
CourtArizona Court of Appeals

Karp Heurlin Weiss By Leonard Karp and Laura Belleau, Tucson, Attorneys for Petitioner.

Kathleen A. McCarthy & Associates, P.L.L.C. By Kathleen A. McCarthy and Scott Lieberman, Tucson, Attorneys for Real Party in Interest.


PELANDER, Chief Judge.

¶ 1 At issue in this special action, which arises from a dissolution of marriage action, is the scope of discovery permitted of an expert accountant retained in anticipation of litigation who was initially listed as a witness and who testified about matters pendente lite but was withdrawn as a witness before trial. Petitioner Lisa Frank Green contends the respondent judge abused her discretion when she granted real party in interest James Green's motion to compel production of the expert's "entire file pertaining to Lisa and/or James Green and/or Lisa Frank Inc." In the context of the specific facts of this case, we agree. Accordingly, we accept jurisdiction of the special action and grant relief by vacating the respondent judge's discovery order.


¶ 2 The discovery dispute arose after a pre-decree hearing was convened to address the parties' possession of liquid assets pendente lite. Lisa had called Byron Fox, a financial consultant, to testify at the hearing on March 24, 2006, and designated him as an expert witness for trial while the continued hearing was still pending. On March 28, James subpoenaed Fox's entire file relating to the parties and Lisa Frank Inc., to be produced at the continued hearing on March 31. Lisa objected to the subpoena.

¶ 3 On March 31, Fox sent a letter to James's counsel objecting to the requested production and did not produce any materials when he appeared at the scheduled hearing that day. After Lisa's counsel complained that she had been given inadequate time to brief her objection to the subpoena, the respondent judge delayed ruling on production of the file pending further briefing. At the respondent's suggestion, James cross-examined Fox that day and reserved the right to recall him if the court later ordered disclosures pursuant to the subpoena.

¶ 4 Sometime after that hearing, Lisa produced only those portions of Fox's file she believed to be related to the subject matter of his testimony at the hearing and expected testimony at trial. Lisa also moved to modify James's subpoena to limit the scope of production to those documents related to the subject of Fox's testimony.1 James opposed that motion and on May 23 moved to compel the production of all documents requested in his subpoena. The two motions were set for hearing on June 27. Before that hearing was held, however, two critical events occurred: (1) on May 26, the respondent judge approved a stipulation of the parties that resolved the distribution of liquid assets pendente lite and vacated all further hearings on that issue, and (2) on June 6, Lisa withdrew her designation of Fox as a trial witness.

¶ 5 After the June 27 hearing on the parties' discovery dispute, the respondent judge concluded that Lisa,

by calling Mr. Fox as a witness to testify in preliminary matters not only as to facts, but also by giving opinion testimony, ha[d] waived any privilege that may have existed regarding Mr. Fox as a consulting expert with respect to the issues before this court, regardless of whether Mr. Fox has testified to the issues to date or not.

The respondent judge then compelled disclosure of Fox's files, in their entirety, as requested in James's subpoena. This petition for special action followed.


¶ 6 Although we do not "routinely entertain petitions for extraordinary relief on discovery matters," Jolly v. Superior Court, 112 Ariz. 186, 188, 540 P.2d 658, 660 (1975), special action jurisdiction may be appropriate because a discovery order is not appealable. See Ariz. R.P. Spec. Actions 1(a), 17B A.R.S.; A.R.S. § 12-2101; Michael Weller, Inc. v. Aetna Cas. & Sur. Co., 126 Ariz. 323, 327, 614 P.2d 865, 869 (App.1980). Moreover, a special action "`is the proper means to seek relief'" when a party believes a trial court has ordered disclosure of material protected by a privilege or work product shield. Emergency Care Dynamics, Ltd. v. Superior Court, 188 Ariz. 32, 33, 932 P.2d 297, 298 (App.1997) (work product immunity), quoting Church of Jesus Christ of Latter-Day Saints v. Superior Court, 159 Ariz. 24, 25-26, 764 P.2d 759, 760-61 (App.1988) (clergy-penitent privilege); see also Yuma Reg'l Med. Ctr. v. Superior Court, 175 Ariz. 72, 74, 852 P.2d 1256, 1258 (App.1993) (peer review privilege). Special action jurisdiction also is appropriate when the issue involves interpretation or application of civil procedure rules, see Jones v. Buchanan, 177 Ariz. 410, 411, 868 P.2d 993, 994 (App.1993), and when the respondent judge's alleged abuse of discretion concerns "a pure issue of law that may be decided without further factual inquiry." Winner Enterprises, Ltd. v. Superior Court, 159 Ariz. 106, 108, 765 P.2d 116, 118 (App.1988) (motion to intervene pursuant to Rule 24, Ariz. R. Civ. P., 16 A.R.S., Pt. 1). Finally, this special action presents issues of first impression, further warranting acceptance of jurisdiction. E.g., Callan v. Bernini, 213 Ariz. 257, ¶ 4, 141 P.3d 737 (App.2006). For all these reasons, we accept jurisdiction of this special action.


¶ 7 A trial court has broad discretion in resolving discovery disputes. Brown v. Superior Court, 137 Ariz. 327, 331, 670 P.2d 725, 729 (1983). "But when a judge commits an `error of law . . . in the process of reaching [a] discretionary conclusion,' [s]he may be regarded as having abused [her] discretion." Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 285 (2003), quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982) (first two alterations in Twin City). Rule 26(b)(4)(A), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, permits discovery as a matter of course from "any person who has been identified as an expert whose opinions may be presented at trial." But Rule 26(b)(4) also "distinguishes sharply between testimonial and consulting experts." Emergency Care Dynamics, 188 Ariz. at 36, 932 P.2d at 301; compare Ariz. R. Civ. P. 26(b)(4)(A) and 26(b)(4)(B). Thus, although "Arizona authorities have granted expansive scope for . . . pretrial discovery from expert witnesses," and that scope encompasses discovery related to "the expert's relations with the hiring party and its counsel," discovery from consulting experts is prohibited "except `upon a showing of exceptional circumstances.'" Emergency Care Dynamics, 188 Ariz. at 35-36, 932 P.2d at 300-01, quoting Ariz. R. Civ. P. 26(b)(4)(B); see also State ex rel. Miller v. Superior Court, 154 Ariz. 363, 364-65, 742 P.2d 864, 865-66 (App.1987).

¶ 8 In Emergency Care Dynamics, Division One of this court addressed the discovery available when an expert has been retained as both a consultant and an expert witness and held that a party waives the work product protection ordinarily afforded the work of a consulting expert when the party designates that expert to testify at trial. 188 Ariz. at 36, 932 P.2d at 301. As that court explained: "An expert may be either a witness or a protected consultant, but not both. `Counsel must choose.'" Id., quoting Furniture World, Inc. v. D.A.V. Thrift Stores, Inc., 168 F.R.D. 61, 63 (D.N.M. 1996).

¶ 9 In further construing the rule it had announced in Emergency Care Dynamics, Division One has stated that "a party who has named a consultant as an expert can reinstate the [work product shield] by removing that designation before expert opinion evidence is offered through production of a report, responses to discovery, or expert testimony." Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm'n, 211 Ariz. 337, ¶ 83, 121 P.3d 843, 865 (App.2005). As Division One said in Arizona Minority Coalition:

[O]nce an expert witness is redesignated, the opposing party is strictly limited to disclosure related to the new designation. See, e.g., Mantolete v. Bolger, 96 F.R.D. 179, 182 ([D.Ariz.] 1982). In Mantolete, the court reasoned that when a defendant changed its expert's designation from "testifying expert" to "non-testifying" expert under Rule 26(b)(4) of the Federal Rules of Civil Procedure, discovery by plaintiff was limited to the restrictions set forth for non-testifying experts. Id. The court rejected the plaintiff's argument that the redesignation of the witness was simply a way to avoid discovery and thus a gross abuse of the federal rules. Id. at 182 n. 2. Instead, the court opined that the "defendant is permitted to execute the trial strategy it deems appropriate to defend its case; this extends to changing the status of an expert, which thereby narrows the scope of discovery." Id.

211 Ariz. 337, ¶ 84, 121 P.3d at 865.

¶ 10 Although Arizona Minority Coalition found reinstatement of work product protection occurs when a witness designation is withdrawn "before expert opinion evidence is offered," id. ¶ 83, the court there was not required to address the issue raised here: Whether the work product protection associated with an expert consultant may be restored by withdrawing an expert's witness designation after that expert has testified for a limited purpose during a pretrial hearing and after the parties have resolved by stipulation the matter on which the expert previously testified. Thus, we address this issue as a matter of first impression.

¶ 11 First, we concur with Division One that the "mere . . . designation" of an expert witness does not create "a permanent waiver of [work product protection] that [can]not be...

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