Salvation Army v. Bryson

• Decision Date: 02 March 2012
• Docket Number: No. 2 CA–SA 2011–0091.,2 CA–SA 2011–0091.
• Parties: The SALVATION ARMY, a foreign non-profit corporation authorized to do business in Arizona; John Matthew Kelley; and Kyna Kelley, Petitioners, v. Hon. Kyle BRYSON, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andEthan Bennett, a minor, through Rosa S. Bennett aka Rose S. Bennett, his natural mother and Guardian Ad Litem, and Rosa S. Bennett, a single woman in her individual capacity, Real Parties in Interest.
• Court: Arizona Court of Appeals

229 Ariz. 204

273 P.3d 656

629 Ariz. Adv. Rep. 11

The SALVATION ARMY, a foreign non-profit corporation authorized to do business in Arizona; John Matthew Kelley; and Kyna Kelley, Petitioners,

v.Hon. Kyle BRYSON, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andEthan Bennett, a minor, through Rosa S. Bennett aka Rose S. Bennett, his natural mother and Guardian Ad Litem, and Rosa S. Bennett, a single woman in her individual capacity, Real Parties in Interest.

No. 2 CA–SA 2011–0091.

Court of Appeals of Arizona, Division 2, Department B.

March 2, 2012.

Goering, Roberts, Rubin, Brogna, Enos & Treadwell–Rubin, P.C. By William L. Rubin, Tucson, and Melinda K. Cekander, Flagstaff, and Renaud Cook Drury Mesaros, PA By William W. Drury, Jr., John A. Klecan, and Noel C. Capps, Phoenix, Attorneys for Petitioners.

Mesch, Clark & Rothschild, P.C. By Michael J. Crawford and Douglas H. Clark, Jr., Tucson, Attorneys for Real Parties in Interest.

OPINION

ESPINOSA, Judge.

¶ 1 In this special action, petitioners the Salvation Army and John and Kyna Kelley (herein collectively referred to as the Salvation Army), defendants in the underlying personal-injury action that arose from the near drowning of real party in interest Ethan Bennett, challenge the respondent judge's order requiring them to produce redacted summaries of interviews of four of the Salvation Army's employees and six of its volunteers. An investigator had conducted the interviews at the direction of the Salvation Army's attorneys, and the Salvation Army maintains the summaries are protected by the attorney-client privilege and the work-product doctrine. We accept jurisdiction because the Salvation Army has no remedy by appeal and because “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.” Green v. Nygaard, 213 Ariz. 460, ¶ 6, 143 P.3d 393, 395 (App.2006), quoting Emergency Care Dynamics, Ltd. v. Superior Court, 188 Ariz. 32, 33, 932 P.2d 297, 298 (App.1997).

¶ 2 It also is appropriate to accept special-action jurisdiction here because, at least with respect to the interviews of the Salvation Army's employees, the challenge to the respondent judge's ruling involves “a pure issue of law that may be decided without further factual inquiry.” Winner Enters., Ltd. v. Superior Court, 159 Ariz. 106, 108, 765 P.2d 116, 118 (App.1988). For the reasons that follow, we conclude those interviews fall within the provisions of A.R.S. § 12–2234 and therefore are protected by the attorney-client privilege. Accordingly, we vacate the respondent judge's order requiring the Salvation Army to disclose summaries of the interviews of its employees, and we direct the respondent to determine whether the Salvation Army's volunteers are its “agents” under the statute, which would render the investigator's interviews of them privileged as well.

Background

¶ 3 The complaint filed in the underlying action alleges that the Salvation Army and “its employees, volunteers, officers and/or agents” negligently failed to provide adequately trained personnel to supervise children attending the organization's summer day camp and swimming at its Temple Corps Community Center swimming pool in Tucson. The complaint further alleges that, as a result, Ethan Bennett sustained permanent injuries when he nearly drowned there on June 2, 2009. During discovery, the Bennetts sought production of “copies of all tapes and interview notes of all witnesses tape recorded and interviewed by Vivian Consoli,” a private investigator retained by the Salvation Army's counsel to investigate the incident. The Salvation Army objected to production of Consoli's interview summaries on the ground that those documents were “protected by the attorney client privilege and the work-product doctrine.” It also asserted the request for production was “overbroad and unduly burdensome in that it does not set a time-frame or identify the interviewees and literally asks for all tapes and interview notes for all interviews ever conducted by Ms. Consoli.”

¶ 4 The Bennetts filed a “Motion to Resolve Pending Discovery Disputes between the Parties,” listing Consoli's summaries as among “documents and information previously requested” that the Salvation Army had not produced. In response, the Salvation Army cited its earlier objections to disclosure of the summaries, maintaining “those investigative materials are privileged and will not be produced.” Relying on Rule 26(b)(3), Ariz. R. Civ. P., and Longs Drug Stores v. Howe, 134 Ariz. 424, 430, 657 P.2d 412, 418 (1983), the Salvation Army further argued Consoli's summaries revealed its attorneys' mental processes and consequently were entitled to protection from disclosure. It also maintained the Bennetts could not show “substantial need” for Consoli's summaries of her interviews with Salvation Army employees and volunteers, as required by Rule 26(b)(3), “because they have already deposed all of The Salvation Army's employees and volunteers who were at the pool on June 2, 2009, as well as some of the children who were there that day.”

¶ 5 At a hearing on their discovery motion, the Bennetts claimed they had no ability to interview witnesses “within a couple of weeks” after the incident, as Consoli had, and so had a substantial need for any witness statements found in the summaries and no other way to obtain “what they said or remembered at that time.” They asserted that “the substance of what [the witnesses] said” during the interviews “is not privileged,” even if Consoli's “thoughts and impressions” in preparing the summaries were protected under the work-product doctrine.

¶ 6 In response, the Salvation Army noted it had released redacted summaries of interviews Consoli had conducted of children attending the day camp, as previously directed by another judge, but it argued those disclosures were justified by the “special, unique circumstances” associated with child witnesses. It maintained the interviews Consoli had conducted of the children should not be “analogize[d]” to the interviews she had conducted of Salvation Army employees or volunteers. As to the latter, the Salvation Army stated, “[A]ny of those interview summaries where she's communicating her thoughts and impressions to [counsel] are privileged. They're work product.” It emphasized that, in conducting the interviews, Consoli had been an “agent of defense counsel,” acting “at his order[,] undertaking directions from him[, and] reporting to him,” and it maintained Consoli's summaries, made “at the specific request of defense counsel [who asked] for certain interviews ... is work product, period.” It again contended the Bennetts had made no showing of “substantial need” for the summaries or an “inability” to obtain the information contained in them by other means, see Ariz. R. Civ. P. 26(b)(3), because they had deposed the same employees and volunteers that Consoli had interviewed.

¶ 7 After argument, the respondent judge directed the Salvation Army to “redact the work product” from Consoli's interview summaries and disclose the redacted summaries to the Bennetts.¹ The Salvation Army filed a motion for reconsideration and, citing § 12–2234, argued Consoli's summaries were protected by attorney-client privilege as well as the work-product doctrine. The respondent declined to reconsider his ruling and denied the motion without further comment. This special action followed.

Discussion

¶ 8 We will grant special-action relief from a discovery order only if we find the respondent judge has abused his discretion or exceeded his jurisdiction or legal authority. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 10, 63 P.3d 282, 284–85 (2003). But an “ ‘error of law ... in the process of reaching [a] discretionary conclusion’ ” may constitute an abuse of discretion, and “[w]hether a privilege exists is largely a question of law, which we ... review de novo.” Id., quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982) (alteration in Twin City ).

¶ 9 The Salvation Army relies on both the attorney-client privilege and the work-product doctrine in arguing the respondent judge abused his discretion by ordering it to produce redacted versions of Consoli's summaries. Those concepts are distinct and often pertain to different subjects, and their application to the same material may produce different results with respect to disclosure. It appears the Salvation Army conflated the two doctrines at the hearing on the Bennetts' discovery motion. At that time, it emphasized that the Bennetts were seeking summaries of interviews of employees and volunteers, but it failed to articulate the relevance of this fact. Although the relationship of the interviewed individuals to the corporation is material to a claim that the communications were protected by the attorney-client privilege held by a corporate client, it is irrelevant to the question of whether counsel's summaries of oral statements made by witnesses are protected by the work-product doctrine.² Compare § 12–2234 with Ariz. R. Civ. P. 26(b)(3). Accordingly, we begin by distinguishing the two concepts.

Work–Product Doctrine

¶ 10 Generally, “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Ariz. R. Civ. P. 26(b)(1)(A) (emphasis added). Thus, the protection afforded an attorney's work product, codified in Rule 26(b)(3), never has pertained to privileged communications between attorney and client, but instead addresses the “discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of [Rule 26] and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney).” Id. (...