Samaritan Found. v. Goodfarb - 176 Ariz. 497, 862 P.2d 870 (1993)

Rule:

There must be an attorney-client relationship before the attorney-client privilege exists. And, to be privileged, the communication must be made to or by the lawyer for the purpose of securing or giving legal advice, must be made in confidence, and must be treated as confidential. Thus, not all communications to one's lawyer are privileged.

Facts:

A child's heart stopped during surgery at the Phoenix Children's Hospital in the Good Samaritan Regional Medical Center in 1988. A Good Samaritan lawyer investigated the incident and directed a nurse paralegal to interview three nurses and a scrub technician who were present during the surgery. Each of these Samaritan employees signed a form agreeing to accept legal representation from Samaritan's legal department. The paralegal summarized the interviews in memoranda that she then submitted to corporate counsel. The child and her parents brought an action against Phoenix Children's Hospital and the physicians who participated in the surgery, alleging that the cardiac arrest and resulting impairment were caused by the defendants' medical negligence. When deposed two years later, the four Samaritan employees were unable to remember what happened in the operating room. Having learned of the existence of the interview summaries through discovery, plaintiffs sought their production. Samaritan, a non-party, and Phoenix Children's Hospital resisted, arguing that the interview summaries were protected by the attorney-client privilege and the work product doctrine. The trial court ordered production of the summaries for in camera review. It said it would strike out attorney work product and then release to the plaintiffs those portions of the summaries that would otherwise constitute witness statements. In short, the trial judge treated the documents as though they were not within the corporate attorney-client privilege, but were within the work product doctrine. Samaritan and Children's Hospital filed petitions for special action in the court of appeals arguing, among other things, that under the rule of Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), the employee communications summarized in the memoranda were within Samaritan's attorney-client privilege. The court of appeals accepted jurisdiction but denied relief. It rejected Upjohn, adopted the control group test, and created a qualified attorney-client privilege for non-control group employees. It held that only communications of control group employees were within the absolute protection of the corporation's attorney-client privilege. The court concluded that the plaintiffs had made a showing of the sort of need that is required to reach work product, and because the nurses and scrub technician were not control group employees, rejected Samaritan's claim of attorney-client privilege.

Issue:

Were the interview summaries of the Samaritan employees protected by the attorney-client privilege?

Answer:

No

Conclusion:

The court found that application of a functional approach focusing on the communication rather than the communicator resulted in a finding that the communications were not privileged. The court held that the communications were not privileged because Samaritan employees were not seeking legal advice in confidence, their actions did not subject petitioners to potential liability, their statements concerned the events going on around them and not their conduct, and the statements were not made in response to the legal consequences of their conduct within the scope of their employment. The court found that as the employees were merely witnesses to the event, their statements were not protected under an attorney-client privilege.