The Salvation Army v. Bryson, 629 Ariz. Adv. Rep. 11 (App. Div. II, March 2, 2012) (J. Espinosa)
EVIDENCE—SUMMARIZED STATEMENTS OBTAINED OF EMPLOYEES AND AGENTS OF DEFENDANT BY INVESTIGATOR UNDER DIRECTION OF DEFENDANT'S CORPORATE COUNSEL ARE PROTECTED BY THE ATTORNEY CLIENT PRIVILEGE
Plaintiff sued the Salvation Army for allegedly negligently causing his near drowning. The trial court ordered production of redacted summaries of interviews of four of the defendants employees and six of its volunteers conducted by an investigator at the behest of the Salvation Army's corporate counsel. The defendant brought this special action claiming these summaries were subject to the attorney client privilege and work product doctrine. The Arizona Court of Appeal granted relief finding the employee statement summaries were privileged and directing the trial court to determine if the volunteers were agents of the defendant rendering their summarized statements likewise privileged.
First the court of appeals distinguished the work product doctrine from the attorney client privilege. The work product doctrine protects otherwise discoverable material when disclosure would reveal “mental impressions, conclusions, opinions or legal theories of an attorney or representative of a party.” However, this protection is qualified by the exception that a showing “of substantial need and an inability without undue hardship to obtain the substantial equivalent by other means” will require production. In contrast, the attorney client privilege recognizes no such exception. Privileged material is not discoverable in the first instance.
Arizona Revised Statute section 12-2234 provides protection from disclosure “communications between a corporation's attorney—or his paralegal, assistant, secretary stenographer or clerk and any employee, agent or member . . . [f]or the purpose of obtaining information in order to provide legal advice.” Here the redacted summaries were found to be statements obtained by corporate counsel's assistant from employees of the corporation for the purpose of giving legal advice and therefore privileged. However, whether the same protection applies to the redacted summaries of statements from the volunteers turns upon whether or not these volunteers were in fact agents of the defendant. While the defendant asserts they were there were no facts in the record to support the assertion so the matter is remanded to the trial court for determination.