Ulibarri v. Superior Court in and for County of Coconino

• Court: Arizona Court of Appeals
• Writing for the Court: NOYES; GRANT; LANKFORD
• Citation: Ulibarri v. Superior Court in and for County of Coconino, 909 P.2d 449, 184 Ariz. 382 (Ariz. App. 1995)
• Decision Date: 22 August 1995
• Docket Number: CA-SA
• Parties: Patricia ULIBARRI and Peter Ulibarri, her husband, Petitioners, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF COCONINO, the Honorable James Hancock, a judge thereof, (sitting in Yavapai County), Respondent Judge, Dean GERSTENBERGER and Marta Gerstenberger, Real Parties in Interest. 195-0026.

Page 449

909 P.2d 449

184 Ariz. 382

Patricia ULIBARRI and Peter Ulibarri, her husband, Petitioners, v. SUPERIOR COURT of the State of Arizona, in and for the COUNTY OF COCONINO, the Honorable James Hancock, a judge thereof, (sitting in Yavapai County), Respondent Judge Dean GERSTENBERGER and Marta Gerstenberger, Real Parties in Interest.

1 CA-SA 95-0026.

Court of Appeals of Arizona Division 1, Department C.

Aug. 22, 1995.

As Corrected Aug. 22, 1995.

Petition for Review Denied and

Cross-Petition for Review Granted

Jan. 17, 1996. ^*

[184 Ariz. 384] Van Baalen Law Offices by Peter T. Van Baalen and Richard T. Weissman, Phoenix, for petitioners.

Jones, Skelton & Hochuli by Peter G. Kline, Bruce D. Crawford and Marc D. Blonstein, Phoenix, for real parties in interest.

OPINION

NOYES, Presiding Judge.

In 1990, Patricia Ulibarri sued her former psychiatrist, Dr. Dean Gerstenberger, for medical malpractice, alleging that in 1983 and 1984 he hypnotized her and then subjected her to nonconsensual sexual relations. Gerstenberger answered that all sexual relations with Ulibarri were consensual, he filed a counterclaim accusing her of blackmailing him in 1986 by threatening to go public with their affair. Gerstenberger filed a motion for summary judgment, arguing that the complaint was time-barred because it was filed about six years after the alleged malpractice, and the applicable statute of limitations, Ariz.Rev.Stat.Ann. ("A.R.S.") section 12-542, is two years. In response to the motion, Ulibarri argued that the statute of limitations was tolled because Gerstenberger's post-hypnotic suggestions caused her to have no memory of their sexual relations until she was hypnotized by a gynecologist in 1989. The trial court granted summary judgment to Gerstenberger. Ulibarri appealed, and this court reversed and remanded, finding that Ulibarri had "raised a material fact issue as to whether she could have discovered the existence of her cause of action within the statutory time period." Ulibarri v. Gerstenberger, 178 Ariz. 151, 162, 871 P.2d 698, 709 (App.1993).

The case is back here on a pretrial special action. Ulibarri seeks relief from trial court discovery orders that overruled her invocation of the marital communications privilege regarding one communication and the attorney-client privilege regarding another. Each communication allegedly involved pre-1987 statements by Ulibarri about her sexual relations with Gerstenberger, thus impeaching her claim that Gerstenberger caused her to not "discover" those sexual relations until 1989.

Special action jurisdiction is appropriate when no equally plain, speedy, and adequate remedy is available by appeal. See Ariz.R.P. Special Actions 1. Existence of a privilege is a question of law, and a special action is the appropriate means of relief when the trial court orders disclosure of information that a party believes is privileged. Blazek v. Superior Court, 177 Ariz. 535, 536, 869 P.2d 509, 510 (App.1994). We accepted jurisdiction and granted relief in part, finding a limited waiver of the attorney-client privilege and no waiver of the marital privilege, with this opinion to follow.

Attorney-Client Privilege

Gerstenberger alleged that part of Ulibarri's blackmail efforts included her telling him in 1986 that she had consulted an attorney about their affair, and that the attorney had advised her to sue Gerstenberger. Ulibarri denied making these statements to Gerstenberger, and she invoked the attorney-client privilege to prevent his deposition of the attorney, J. Michael Flournoy. Gerstenberger filed a motion to depose Flournoy and the trial court found waiver of the privilege, granted the motion, and stayed the deposition pending resolution of this special action.

A.R.S. section 12-2234 provides, "In a civil action an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment." The purpose of this privilege is to encourage a client to provide all information to the attorney so the attorney can provide effective legal representation to the client. Granger v. Wisner, 134 Ariz. 377, 379, 656 P.2d 1238, 1240 (1982). The privilege protects communication between lawyer and client; "[i]t does not extend to facts which are not part of the communication between lawyer and client." Id. at 379-80, 656 P.2d at 1240-41. "Thus, the fact that a client has consulted an attorney, the identity of the client, and the dates and number of visits to the attorney are normally outside the scope and purpose of the privilege." Id. at 380, 656 P.2d at 1241.

If Ulibarri consulted Flournoy as alleged, the above-mentioned facts would not be privileged, but any communications between them would be, unless the privilege has been waived. We find limited waiver here because a client waives the privilege by disclosing confidential communications to a third party, and Ulibarri allegedly did that by threatening Gerstenberger with those communications. See Morris K. Udall et al., Law of Evidence § 71 (3d ed.1991). A client also waives the privilege when her conduct places her in such a position with reference to the evidence that to permit retention of the privilege would be unfair and inconsistent. Buffa v. Scott, 147 Ariz. 140, 143, 708 P.2d 1331, 1334 (App.1985) (citing 8 John H. Wigmore, Evidence § 2388, at 855 (1961)). Ulibarri having allegedly threatened Gerstenberger with her attorney-client communications, and Ulibarri having denied those allegations, it is only fair that Gerstenberger be allowed to ask the attorney whether those alleged communications occurred. The privilege may not be used as both a sword and a shield. Id.

[Claimant] is not permitted to thrust his lack of knowledge into the litigation as a foundation or condition necessary to sustain his claim against [defendant] while simultaneously retaining the lawyer-client privilege to frustrate proof of knowledge negating the very foundation or condition necessary to prevail on the claim asserted against [defendant]. Such tactic would repudiate the sword-shield maxim....

League v. Vanice, 221 Neb. 34, 374 N.W.2d 849, 856 (1985); Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533, 544 (Colo.1989); see Throop v. F.E. Young and Co., 94 Ariz. 146, 157-58, 382 P.2d 560, 567-68 (1963) ("The claim of privilege to buttress such a [seemingly false] position is contrary to the spirit of the privilege and the purpose of trials to ascertain the truth.").

In arguing that the privilege should be upheld, Ulibarri relies heavily on Certainteed Corp. v. United Pacific Ins. Co., 158 Ariz. 273, 762 P.2d 560 (App.1988). There, plaintiff alleged that defendant was estopped by its own conduct from raising a statute of limitations defense. When defendant sought to discover communications between plaintiff and its attorney, the court upheld plaintiff's invocation of the attorney-client privilege, reasoning that communications between plaintiff and its attorneys "are not in issue. What is in issue is the conduct of [defendant]." Id. at 279, 762 P.2d 566.

Ulibarri argues that Certainteed is analogous because Gerstenberger's conduct in causing suppression of her memory of their sexual relations estops him from asserting the statute of limitations defense. We agree that the cases are analogous to that extent. But there are additional factors in this case which distinguish it from Certainteed: Ulibarri placed in issue her pre-1988 memory of Gerstenberger's conduct; she allegedly disclosed attorney-client communications reflecting her 1986 memory of that conduct; and she denied making that disclosure, thus placing in issue the existence of those attorney-client communications.

We hold that there has been a limited waiver of the attorney-client privilege regarding Ulibarri's 1986 alleged communications with Flournoy about her sexual relations with Gerstenberger. The content of any of this communication between Ulibarri and Flournoy is discoverable only to the extent that it concerns her 1986 memory of events for which she sued Gerstenberger in 1990. We do not dictate what questions can be asked of either Ulibarri or Flournoy, but our holding should be construed to permit the fewest and most narrowly-drawn questions as will provide necessary information regarding the specific issue on which waiver has been found. What we stated recently regarding a similar privilege applies to the attorney-client privilege as well: "The scope of an implied waiver of the psychologist-patient privilege is limited only to those communications concerning the specific condition which petitioner has placed at issue." Blazek, 177 Ariz. at 542, 869 P.2d at 516. ¹

Marital Communications Privilege

In 1994, Gerstenberger's investigator had a tape-recorded telephonic interview with Ulibarri's ex-husband, Michael. Michael had married Ulibarri in November 1984 and left her about ten months later. They did not stay in touch. After Gerstenberger's investigator assured Michael that he and Ulibarri were in fact divorced (in August 1985), Michael delighted the investigator with anecdotes and opinions about Ulibarri. One of the things Michael disclosed to the investigator, several times, was that Ulibarri had told him during their marriage that she had a sexual affair with Gerstenberger before their marriage. As the interview drew to a close the investigator said: "Mike, you've been wonderful, if you have any questions for me, give me a call, you've got my 800 number." Michael said: "Yea, well you've eased my mind. I thought maybe I was still married to her."

Gerstenberger's attorneys noticed Michael for a videotaped deposition in Phoenix. Ulibarri's attorneys, unaware of what was coming, agreed to the deposition and to pay half of Michael's travel expenses. When Ulibarri's attorneys asked to see a transcript of Michael's interview with the investigator,...