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Evidence - Only Person Holding Privilege Can Assert It

D'Amico v. Structural Co., 631 Az. Adv. Rep. 11 (App. Div. I, April 4, 2012) (J. Johnsen)

The Mc Leod's were getting ready to retire and saw a counselor for personal matters as well as advice as to how to transition their company at retirement. The counselor recommended they hire a "transitional" chief executive officer to assist the process. They hired the plaintiff. However, this didn't work out primarily due to disputes over compensation so the Mc Leod's company, Structural, fired her. She sued for breach of contract and bad faith. It is significant that she only sued Structural and not the Mc Leods. Structural counterclaimed for fraud, breach of fiduciary duty and unjust enrichment. The jury awarded damages to plaintiff and the defendant with a net result of judgment in the amount of $910,616 to plaintiff. Both parties appealed. The defendant's principal argument was that the trial court improperly admitted testimony concerning personal counseling from their counselor. The Arizona Court of Appeals affirmed.

It is hornbook law that only the person who holds a privilege may assert it. Here, because the Mc Leods and not Structural held the privilege only they could assert it so the evidence was properly admitted. The court did not address whether testimony by a counselor as opposed to a licensed psychologist fit within the privilege established in ARS sec. 32-2085.

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