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Evidence – Social Worker Privilege – Waiver By Written Agreement

Abeyta v, Soos, 680 Ariz. Adv. Rep. 26 (App. Div. II, February 19, 2014) (J. Miller)

Plaintiff and his domestic partner sought counseling with licensed clinical social worker Sontag at Sierra of Tucson. It was understood that both the plaintiff and his partner would be counseled together and all communications to one would be communicated to the other. Eventually, plaintiff checked into Sierra where he injured his back when a staff member told him to move his luggage. He eventually sued Sontag and Sierra regarding the injury and counseling, alleging negligence, breach of contract, bad faith, intentional misrepresentation and infliction of emotional distress.

During the course of the litigation, defendant Sontag produced portions of the counseling records regarding plaintiff and his partner and subpoenaed the partner for a deposition. The partner sought a protective order claiming social worker privilege which was denied by the trial court based upon the fact the plaintiff and partner had agreed to joint counseling and the free exchange of communications to the counselor to each partner. This special action followed and the Arizona Court of Appeals accepted jurisdiction and granted relief.

ARS sec. 32-3283(A) creates a privilege regarding communications to a licensed social worker the same as the attorney client privilege and the privilege extends to records as well as testimony both in trial and discovery. Waiver of the privilege can occur by written agreement or a course of conduct, particularly when a party seeks to use the privilege as both a sword and a shield. Sontag argued that Hahman v. Hahman, 129 Riz. 101, 628 P.2d 984 (App. 1981) which holds the attorney client privilege is waived when two parties seek counsel from the same attorney and then sue each other supports the existence of a waiver here. However, the court distinguished this case on the basis the case at bar did not involve a claim by one party to the confidential communication against the other; use of a shield and sword.

The court further held that while HIPPA allows a therapist to use records to defend a claim brought by a patient, it does not allow the disclosure or use of the records of a nonparty to the claim who has not otherwise waived the claim.

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