State ex rel. Corbin v. Weaver
| Decision Date | 22 March 1984 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 680 P.2d 833,140 Ariz. 123 |
| Parties | The STATE of Arizona, ex rel., The Honorable Robert K. CORBIN, the Attorney General, and the Civil Rights Division of the Arizona Department of Law, Applicant/Appellant, v. A.B. WEAVER, Respondent/Appellee. 4986. |
| Court | Arizona Court of Appeals |
This action arose out of a subpoena enforcement proceeding brought by appellant Arizona Civil Rights Division (Division) against appellee University of Arizona (University) through its agent, A.B. Weaver, pursuant to A.R.S. § 41-1403. 1 The trial court refused to require the University to produce certain documents pursuant to the Division's subpoena of Weaver.
The case was commenced administratively by Dr. John C. Reinbold who, on August 2, 1982, filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that he had been discriminatorily terminated from his employment with the University because of his age and his sex. The EEOC referred that charge to the Division on August 19, 1982. The Division then processed the charge as provided by A.R.S. § 41-1481 and began its investigation.
On March 28, 1983, the Division issued to A.B. Weaver an administrative subpoena duces tecum which called for the testimony of Weaver and the production of documents compiled or reviewed during the University's Affirmative Action Office investigation of Reinbold's complaint. 2 On April 4, 1983, the University delivered to the Division a Petition to Revoke, Limit and/or Modify the subpoena in question. The Division denied this Petition on April 5, 1983. Weaver did not appear and the University did not produce the requested documents when the subpoena was returnable on April 6, 1983.
On April 14, 1983, a meeting between legal representatives of the Division and the University took place during which time the parties attempted to resolve the dispute concerning the disputes in the Affirmative Action Office files. During that meeting, the University agreed to produce all documents in the file except those which they believed to be privileged.
When these documents had not been produced by April 25, 1983, the Division commenced this subpoena enforcement action by filing an Application for Order to Show Cause and Order Enforcing Subpoena. That Application sought to require the University to show cause why it should not produce the materials sought in the subpoena of March 28, 1983, and an order of the court requiring such production. The following day the University produced some of the documents sought and a letter explaining a claimed basis for confidentiality of the remaining documents. That letter read as follows:
"Enclosed you will find a number of documents that are being provided to the Division in response to the Division's request for information concerning the internal investigation conducted by the University Affirmative Action Office, specifically by Dr. Felix Goodwin, concerning Dr. Rheinbold's [sic] allegations of employment discrimination with respect to his termination.
The documents being provided to you were prepared, compiled or reviewed in connection with the University's investigation of Dr. Rheinbold's [sic] internal complaint of discrimination.
There are some memoranda, reports and documents which are not being provided to the Division, copies of which are located in the Affirmative Action Office investigative file, because those documents are considered to be privileged or otherwise non-discoverable. The following is a list of those documents:
Document Reason for Non-Disclosure
-------- -------------------------
1. Confidential Memorandum Irrelevant, does not relate to
dated June 21, 1982 from Affirmative Action issues
Floyd A. Swenson to Robert
A. Peterson
2. Memorandum dated June Irrelevant; contains conclusions
21, 1982, from Dr. Felix and opinions; prepared
Goodwin to Dr. Jean Kearns, in anticipation of litigation or
preliminary Affirmative administrative action
Action investigative report. contains self-critical analysis;
work product privilege.
3. An undated document Irrelevant; contains conclusions;
from Dr. William Clauss to work product privilege;
Dr. Felix Goodwin containing witness is available to
responses to investigative be interviewed.
questions.
4.Investigative notes of Dr. Irrelevant; conclusionary;
Goodwin; the following people prepared in anticipation of litigation
were interviewed: John or administrative action;
Edwards, Robert Conter, William witnessess to be available
Clauss, John Rheinbold, to be interviewed by
(sic) Cathy Ulman, Judith ACRD; work product privilege.
Enz, Richard Saltford, Harry
Norman, Barbara Hartman,
Larry Nelson.
5.Handwritten notes, undated, Attorney client privilege,
prepared by University work product privilege.
Counsel Max Jarrett and
Lynne Wood.
6.Memorandum dated Attorney client privilege;
August 27, 1982 from Dr. Felix prepared at the direction of
Goodwin to Dr. William Counsel; work product privilege.
Clauss.
7.Memorandum dated Irrelevant; attorney client
September 1, 1982, from Dr. privilege; work product privilege;
William Clauss to Dr. Felix prepared in anticipation
Goodwin, with 17 exhibits of litigation or administrative
(the letter is not being provided, action; witness available to
however all 17 exhibits be interviewed.
are being provided to the Division.)
Five exhibits have
already been provided to the
Division as exhibits numbered
13, 14, 16, 17, and 18 to the
Position Statement.
8.Letter dated May 23, 1982, Irrelevant; this concerns a
from Richard Saltford to the separate complaint and
Affirmative Action Office. Affirmative Action issues.
All of these documents were furnished the trial court for in camera examination and we have them in our appellate record. The 8 documents consist of a total of 50 pages. The Division subsequently modified its Application to seek only those documents which the University had thus withheld. To supplement those facts previously set forth are pertinent portions of the stipulated facts submitted to the court as follows:
"1. On May 18, 1982, Dr. John C. Reinbold filed an internal letter of complaint to the Affirmative Action Office at the University of Arizona....
2. On May 25, 1982, Dr. Jean R. Kearns responded to Dr. Reinbold, indicating that his complaint had been received by her office and informing him that Dr. Felix Goodwin would be in charge of investigating Reinbold's complaint concerning affirmative action and fair employment practices....
3. Dr. Goodwin conducted the internal investigation on behalf of the Affirmative Action Office and reported his preliminary findings to Dr. Kearns in memorandum dated June 21, 1982. That document was not released to the Arizona Civil Rights Division in response to its request for the internal Affirmative Action Office file in this matter because it is considered by the University to be privileged as a self-critical analysis, irrelevant and containing conclusions and opinions.
4. Because Dr. Kearns had resigned as Affirmative Action Officer for the University of Arizona effective June 30, 1982, the Affirmative Action Office file was forwarded to Lynne O. Wood, University Attorney, assigned to advise the Affirmative Action Office. Ms. Wood reviewed the investigative file and determined that more investigation was required before a determination could be made concerning Dr. Reinbold's allegations of violations of affirmative action, regulations and unfair employment practices. Ms. Wood met with Dr. Goodwin and directed him to conduct further investigation. Those handwritten notes have been withheld from the Arizona Civil Rights Division and identified as document # 5 in a letter from Ms. Wood to Mr. David Brown of the Arizona Civil Rights division dated April 26, 1983; a copy of which is attached herein as Exhibit C and incorporated by reference herein.
5. On August 2, 1982, Reinbold filed a charge of age and sex discrimination with the Equal Employment Opportunity Commission (EEOC) against the University of Arizona, Continuing Education Division. That charge was received by the University on August 17, 1982. On that same day, Ms. Wood distributed copies of the charge to the appropriate University and Regents officials, indicating that she would be directing the investigation of this charge and that Dr. Felix Goodwin would be assisting her in preparing the Affirmative Action investigative report and recommendations. Normally, this letter would have been written by the Affirmative Action Officer. However, at that time the Affirmative Action Officer position was unfilled and the acting Affirmative Action Officer was on vacation. The normal University procedure when a charge of discrimination is received from any investigative agency is for the Affirmative Action Officer to send out such a notice at the direction of the University Attorney. The University Attorney's office, specifically Ms. Wood of that office, is responsible for overseeing the investigation, interacting with the investigative agency, preparing any documents which are sent to the investigative agency and accompanying supervisory employees and agents of the University when they are interviewed by the investigative agency. At all times, Ms. Wood acted in her capacity as University Attorney.
6. The EEOC deferred...
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