Arizona Court of Appeals Division Two Holds That Superior Court Judge Abused His Discretion in Requiring Disclosure of Privileged Summaries of Interviews with Organization’s Employees.

The Bennetts sued the Salvation Army after their son nearly drowned in a swimming pool during a summer day camp run by the organization.  During discovery, the Bennetts sought production of notes taken by the investigator hired by the Salvation Army’s counsel from her interviews with the Salvation Army’s employees and volunteers following the incident.  The Salvation Army objected, arguing that the interview summaries were protected by the attorney-client privilege and the work-product doctrine.  The superior court judge ordered the Salvation Army to “redact work product” from the summaries and disclose the redacted summaries to the Bennetts.  The Salvation Army sought review via special action.

The Court of Appeals accepted special action jurisdiction and granted relief in part.  The Court first noted that the Salvation Army had conflated the attorney-client privilege and the work-product doctrine and thus began by distinguishing the two concepts.  Materials covered by the attorney-client privilege are not discoverable under Arizona Rule of Civil Procedure 26.  The work-product protection, codified in Arizona Rule of Civil Procedure 26(b)(3), applies to materials that are otherwise discoverable, and thus does not apply to privileged materials.  The work-product doctrine protects materials that were prepared in anticipation of litigation, but such materials may be disclosed to the other party if that party shows a “substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”  Ariz. R. Civ. P. 26(b)(3).  If a court orders disclosure of trial preparation materials, “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation” must remain protected.  Id.

The attorney-client privilege for civil actions is codified in A.R.S. § 12-2234.  In the context of an organizational client, the statute prohibits disclosure of communication between a lawyer or a lawyer’s agent and an “employee, agent or member of the entity”  if the communication is for the purpose of providing legal advice or for the purpose of obtaining information to provide legal advice.  In this case, because the communications between the lawyer’s investigator and the Salvation Army’s employees fit into this broad statutory definition, they were privileged, and the superior court should not have ordered them disclosed.

With respect to the investigator’s notes regarding her interviews with the Salvation Army’s volunteers, the Court of Appeals concluded that it was a fact issue whether the volunteers were agents of the organization for the purposes of the attorney-client privilege.  Because the record on this issue had not been developed in the superior court, the Court declined to resolve this issue.  Instead, it directed the superior court judge to determine whether the volunteers were “agents” or “members” of the Salvation Army under A.R.S. § 12-2234 and thus whether the summaries of their interviews were likewise privileged.

Judge Espinosa authored the opinion; Judges Vasquez and Kelly concurred.