Lund v. Hon Myers/Miller

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 04/10/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE BRADFORD D. LUND, ) ) Petitioner, ) ) v. ) ) THE HONORABLE ROBERT D. MYERS, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) DIANE DISNEY MILLER, an ) individual, et al., ) ) Real Parties in Interest. ) __________________________________) No. 1 CA-SA 12-0059 DEPARTMENT D Maricopa County Superior Court No. PB 2009-002244 DECISION ORDER This special action came on for conference on April 4, 2012, before Presiding Judge Peter B. Swann and Judges Michael J. Brown and Jon W. Thompson. The connection special with action the challenges discovery of a trial Petitioner court order Bradford in Lund s medical records in this aggressively litigated guardianship and conservatorship case. The trial court ordered production of medical records without in camera review, subject to a limited protective order, after concluding that the privilege had been waived. The waiver of privilege is not before us. Rather, 1 CA-SA 12-0059 Page 2 Petitioner argues that the trial court abused its discretion when it failed to order in camera review and impose a more meaningful protective order that would prohibit the Real Parties in Interest from disseminating the information contained in the records to persons outside the underlying case. We agree with Petitioner. The physician-patient privilege serves as a complete bar to disclosure of medical records. waived, the privacy A.R.S. § 12-2235. interests information do not evaporate. records must litigation. be disclosed But we see with medical In this case, certain medical for no associated But when the limited reason to purposes subject of the Petitioner s privacy to any greater diminution than the law requires. To this end, we conclude that the trial court abused its discretion when it declined to subject the records to in camera review by the court-appointed special master to determine which of them disclosure bear on will this not litigation. with Those reasonable documents likelihood lead whose to the discovery of admissible evidence should not be produced to the Real Parties in Interest. With respect to the protective order, the Real Parties in Interest contend that they do not need to justify their decisions [not to stipulate to a meaningful protective order] to anyone. Though it is true that 2 they were under no legal 1 CA-SA 12-0059 Page 3 obligation to stipulate to a protective order, it is difficult to discern a motive for that decision that is consistent with protection of the putative ward. The superior court bears a responsibility under the rules to protect parties from undue annoyance, embarrassment [or] oppression. 28(B); Ariz. R. Civ. P. 26(c). Ariz. R. Prob. P. We note that the Guardian ad Litem does not oppose the imposition of a more comprehensive protective order than that adopted by the trial court. And the protracted and acrimonious history of this litigation convinces us that firmer measures are necessary to protect Petitioner from such harm. In the circumstances of this case, we conclude that it was an abuse of discretion to order production of the records without a protective order that (1) limits disclosure of the medical records to parties, their counsel, experts who agree to be bound by appointees, (2) the protective prohibits order, the the disclosure court of the and court information within the documents to persons other than those persons, and (3) requires that copies of, or references to, such documents in court papers be filed under seal. For the foregoing reasons, we accept jurisdiction and grant relief in the form described above. Petitioner s motion to file Reply in Support of Petition for Special Action Under Seal is granted. The stay previously imposed is lifted. The documents shall be produced for in camera review by the special master 3 1 CA-SA 12-0059 Page 4 within two business days of the trial court s entry of a protective order that complies with this decision. /s/ ___________________________________ PETER B. SWANN, Presiding Judge 4

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