In connection with a post-commitment proceeding for a sexually violent person (an “SVP”), the SVP’s counsel sought to informally interview employees of the Arizona Department of Health Services, Arizona State Hospital and the Arizona Community Protection and Treatment Center (“ACPTC”). After the State resisted those efforts, the superior court held that the criminal rules for conducting interviews would be applied in the context of an SVP post-commitment hearing because the proceeding was more analogous to a criminal proceeding. The trial court explained that under the criminal rules, the defense may request an interview, and if the State fails to set up an interview, the defense may contact the ACPTC employee directly. If the employee refuses to be interviewed, the defense may take the employee’s deposition at the State’s expense.
The Court of Appeals accepted special action jurisdiction, and held that the Arizona Rules of Civil Procedure and Ethical Rule 4.2 govern such proceedings because the legislature expressly provided that the civil rules apply, A.R.S. § 36-3704(B), and because ACPTC employees are agents/employees of the State. The Court nevertheless observed that the trial court has considerable discretion under the civil rules and has discretion to order and control discovery. However, it expressed no opinion on whether or how that discretion could properly be applied in this context to achieve the same result. The Court also expressed no opinion on whether discovery costs in an SVP case may be shifted to the State under the civil rules or some other statutory or constitutional authority.
Judge Irvine authored the opinion; Judges Timmer and Kessler concurred.