Arizona Court of Appeals Division Two Holds That Social Worker Cannot Use Joint Therapy Records of Non-Party in Litigation.

A social worker counseled jointly counseled two men, Abeyta and Bruno, and kept a joint chart about their counseling.  Bruno sued the social worker for a variety of torts.  The social worker disclosed the joint counseling chart to Bruno in litigation and noticed Abeyta’s deposition, even though Abeyta was not a party to the litigation.  Abeyta sought a protective order to prevent him from having to testify about his treatment.  The Superior Court denied his motion.  The Court of Appeals accepted special action review and directed the Superior Court to enter such a protective order.

The court reasoned that Abeyta had a privileged relationship with the social worker.  Under A.R.S. § 32-3283(A), a social worker and a patient have the same privilege as an attorney and a client.  The social worker may not divulge confidential information about the patient unless the patient waives the privilege.  Although Bruno and Abeyta agreed to joint counseling in which their information would not remain confidential as between the two of them, the social worker had to maintain the confidentiality of Abeyta’s information as against third parties.  Even if Bruno waived his privilege when he sued his social worker, Bruno’s waiver did not waive Abeyta’s privilege.  The social worker may defend herself using information from the joint counseling chart only so far as it relates to Bruno, but she may not use information related to Abeyta from the chart or from privileged conversations.

Judge Miller authored the opinion; Judge Vásquez and Chief Judge Howard concurred.