Catrone v. Miles

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ANDREW CATRONE, as next friend of PATRICK CATRONE, his minor child, Plaintiffs/Petitioners, v. THE HONORABLE ROBERT E. MILES, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, MERCY HEALTHCARE ARIZONA, INC., an Arizona corporation, dba ST. JOSEPH S HOSPITAL AND MEDICAL CENTER; CATHOLIC HEALTHCARE WEST, a foreign corporation, dba ST. JOSEPH S HOSPITAL AND MEDICAL CENTER; LOUIS G. TRUNZO, M.D. and JOANN KOLNICK, husband and wife; NORTH VALLEY PEDIATRICS, P.C., an Arizona professional corporation; NORTH VALLEY PEDIATRICS-NORTH BELL P.C., formerly known as NORTH VALLEY PEDIATRICS-TATUM, P.C.; an Arizona professional corporation, Defendants/Real Parties in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-SA 06-0277 DEPARTMENT B O P I N I O N FILED 6-26-07 Petition for Special Action from the Superior Court in Maricopa County Cause No. CV2003-012904 The Honorable Robert E. Miles, Judge JURISDICTION ACCEPTED; RELIEF DENIED Harris, Powers & Cunningham, PLLC by Frank I. Powers and John M. Matter Attorneys for Plaintiffs/Petitioners Phoenix Olson, Jantsch & Bakker, P.A. by Thomas G. Bakker and Jill L. Hirneisen Attorneys for Defendant Catholic Healthcare West dba St. Joseph s Hospital and Medical Center Phoenix Campbell, Yost, Clare & Norell, P.C. by Jeffrey J. Campbell and Erica J. Dickson Attorneys for Defendants Trunzo, Kolnick, North Valley Pediatrics, P.C. and North Valley Pediatrics-North Bell, P.C. Phoenix B A R K E R, Judge ¶1 We treat in this special action several issues of first impression as to the discoverability of special education records. For the reasons that follow, we accept jurisdiction and deny relief from the trial court s order requiring their production in this case. Facts and Procedural History ¶2 born On January 9, 1999, Patrick Catrone ( Patrick ) was at St. Joseph s Hospital and Medical Center ( St. Joseph s ) to Andrew Catrone ( Father ) and Stephanie Catrone. Patrick was discharged Because Patrick from experienced the hospital health following difficulties, brought him back on January 13, 1999. 2 the his day. parents Patrick was diagnosed with hyperbilirubinemia1 and treated. malpractice suit professionals Defendants ). against who St. provided Father filed a medical Joseph s care to and certain Patrick medical (collectively Father alleges that Defendants were negligent in diagnosing and/or treating Patrick and that as a result Patrick has suffered injuries severe include and hearing permanent loss, injuries. sensory The motor alleged deficits, neurobehavorial problems, communication disorders, and impaired cognitive functions. ¶3 of Patrick s brother, Austin Catrone ( Austin ), was born the During Austin same the parents deposition was also in approximately of Father, special disabilities. The comprehension difficulties one year Defendants education disabilities and before discovered for included cognitive Patrick. his that learning speech and impairments. In support of the theory that Patrick s impairments were genetic and not the result of allegedly negligent medical practices, Defendants moved to compel the production of Austin s medical and academic records. Patrick objected. 1 Hyperbilirubinemia is excessive concentrations of bilirubin in the blood, which may lead to jaundice. Dorland s Illustrated Medical Dictionary 628 (W.B. Saunders Co. 26th ed. 1981). Bilirubin is a bile pigment that normally circulates in plasma . . . and is taken up by the liver cells. Id. at 167. 3 ¶4 The trial court initially ordered the production of Austin s medical education files and academic subject to disclosure of the records. records a within protective his order special limiting In the first special action filed in this case, we reversed as to the medical records, finding that they were privileged and undiscoverable. CA-SA 05-0062 (Ariz. App. ( Memorandum Decision ). Apr. 21, Catrone v. Fields, 1 2005) (mem. decision) That issue is not before us in this special action. ¶5 is Concerning the academic records, we noted that [i]t plausible information physical, that, dealing within with behavioral, privileged. Austin s the and Id. at 9. scholastic diagnosis mental and disorders, records is treatment of which may be At the time of the special action, the academic records had not been submitted for in-camera review in the trial court. Id. We le[ft] consideration of any alleged academic record privilege to the superior court on remand. Id. at 8-9 n.5. ¶6 Defendants then filed in the trial court a motion for in-camera review of Austin s academic records. The trial court concluded that Father had not established a Special Education Records Privilege. records be submitted The trial under court seal for then ordered in-camera that the review to determine if the records contained any information subject to 4 the physician-patient privilege. After conducting an in-camera review of the records, the trial court ordered production of the documents with the exception of certain pages and redactions of information subject to the physician-patient privilege. Due to the significant privacy concerns at issue, the trial court also ordered that the parties agree to and present to it a protective order for the documents. ¶7 Father filed a motion for reconsideration requesting that the exempt trial from court review production revised privilege log. the academic additional records information again specified and in a Father also asked the trial court to reconsider the discoverability of all the academic records on the grounds that Austin s privacy interests outweighed the need for the records. review and information The trial court conducted a second in-camera specified subject further to the exemptions and physician-patient redactions privilege. of The trial court denied the motion in all other respects, stating that the fact that a school psychologist or physical therapist may have goals input does records. ¶8 into not a make student s the educational records related evaluations thereto and medical This special action followed. Special action jurisdiction is highly discretionary. See State ex rel. McDougall v. Superior Court, 186 Ariz. 218, 219-20, 920 P.2d 784, 785-86 (App. 5 1996). Jurisdiction is appropriate when there is no adequate remedy by way of appeal. Sun Health Corp. v. Myers, 205 Ariz. 315, 317, ¶ 2, 70 P.3d 444, 446 (App. 2003). for the action prior Because an appeal offers no adequate remedy disclosure jurisdiction privilege. Id. is of privileged proper to information, determine a special question of Accordingly, special action jurisdiction is appropriate here. Discussion ¶9 Father raises three issues in this special action. First, are special education records protected by the medical records privilege created by Arizona Revised Statutes ( A.R.S. ) section 12-2292 (Supp. 2006)? records protected by an educational education records privilege? by privilege, did the Second, are special education trial records and/or special Third, if they are not protected court abuse its compelling production of the academic records? discretion in We address each issue in turn. 1. Medical Records Privilege ¶10 are Father argues that Austin s special education records privileged under A.R.S. § 12-2292.2 the medical records privilege statute, The existence of a privilege is a legal issue 2 Father contests on grounds of the medical privilege only the trial court s ruling on the motion for reconsideration, the revised privilege log, and the documents submitted for the second in-camera review. 6 that we review de novo. State v. Miles, 211 Ariz. 475, 477, ¶ 7, 123 P.3d 669, 671 (App. 2005). impede the truth-finding restrictively interpreted. Privilege statutes, which function of the courts, are Church of Jesus Christ of Latter- Day Saints v. Superior Court, 159 Ariz. 24, 29, 764 P.2d 759, 764 (App. 1988). ¶11 Unless otherwise provided by law, records . . . are privileged and confidential. 2292. all medical A.R.S. § 12- The term medical records refers to all communications related to a patient s physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including medical records that are prepared by a health care provider or by other providers. A.R.S. § 12-2291(5) (Supp. 2006). Health care provider is any person who is licensed pursuant to title 32 and who maintains medical records. title 32 therapists, Id. at (4)(a). requires licenses As it pertains to our inquiry, for psychologists,3 medical occupational behavioral health professionals. doctors, physical therapists, and A.R.S. §§ 32-1455(A)(1) (2002) 3 The chapter requiring a license for psychologists does not apply to a school psychologist employed in a common school, high school or charter school setting and certified to use that title by the department of education if the services or activities are a part of the duties of that person s common school, high school or charter school employment. A.R.S. § 322075(A)(1) (Supp. 2006). 7 (medical doctors); 32-2021(A) (Supp. 2006) (physical therapists); 32-2084(A) (2002) (behavioral (psychologists); health counselors, and professionals family 32-3286(A) such as therapists); (Supp. social 2006) workers, 32-3421(A) (2002) (occupational therapists). ¶12 The United States Code of Federal Regulations defines special education as specially designed instruction . . . to meet the unique needs of a child with a disability, including (i) [i]nstruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings. § 300.26(a)(1) (July 1, 2006), renumbered as § 300.39(a)(1) (effective October 13, 2006).4 34 C.F.R. 34 C.F.R. In the initial evaluation of the child, the evaluators must gather functional and developmental information to determine if the child has a disability and individualized § 300.532(b) determine education (July § 300.304(b)(1) § 300.320(a) to 1, 1, content program 2006), (effective (July the 2006 4 the child s 34 C.F.R. as 34 C.F.R. 2006); 34 C.F.R. ( IEP ). renumbered October and of 13, October 13, 2006). The The latest published edition of the Code of Federal Regulations was revised as of July 1, 2006. The Code was updated, however, on October 13, 2006, affecting the numbering of many of the regulations we cite here. The renumbering is yet to be reflected in the published version. We will therefore provide citations to both the July 1, 2006 published regulations, as well as their recent renumbering as of October 13, 2006. 8 regulations require that [a]t least one person qualified to conduct individual diagnostic examinations of children, such as a school psychologist, speech-language pathologist, or remedial reading teacher participate in determining whether a child has a disability. 34 C.F.R. § 300.540(b) (July 1, 2006), renumbered as 34 C.F.R. § 300.308(b) (effective October 13, 2006). must include affects the a of [h]ow child s involvement 34 § curriculum. renumbered statement as C.F.R. 34 October 13, 2006). and the child s progress 300.347(a)(1)(i) C.F.R. in The IEP disability the (July § 300.320(a)(1)(i) general 1, 2006), (effective The IEP must also contain measurable annual goals that meet the educational needs that result from the child s disability. Id. at (a)(2) (July 1, 2006 and October 13, 2006). ¶13 records Father objects to the production of special education signed by a school psychologist, physical occupational therapist, or a speech therapist. include written determinations, preliminary notices IEPs, matter and that of progress a school therapist, These documents evaluations, reviews. psychologist disability We note need as not a be licensed according to title 32 if he or she is certified instead by the Department of Education. See A.R.S. § 32-2075(A)(1). Additionally, the medical records privilege does not apply to speech therapists as title 32 does not require licensing for 9 speech therapists. See A.R.S. §§ 12-2291(4)(a) and 32-101 - 4161 (2002 & Supp. 2006). ¶14 The statutory privilege for medical records covers only those records that relate to the physical or mental health or condition of a patient and are maintained for purposes of patient diagnosis or treatment. added). While special A.R.S. § 12-2291(5) (emphasis education records do relate to the physical or mental health or condition of the student, they are created for the purpose of tailoring an educational program that will best formulation of disabilities in diagnosis or accommodate an a educational school treatment medical setting. the of setting a child s plan is person disability. for not with the The students with same the as disabilities in a Some of the records in the educational setting may be privileged and some may not. However, the participation of a school psychologist or therapist in the process does not alter the fact that much of the special education records are maintained for the purpose of education and not treatment. See J.N. By and Through Hager v. Bellingham Sch. Dist. No. 501, 871 P.2d 1106, 1115 (Wash. Ct. App. 1994) (holding that records of student s evaluation by school psychologist were not subject to the psychologist-patient privilege because the student and his mother did not expect the communications to remain confidential and because the purpose of the interview was to . . . assess[] 10 [the student s] need for special education services, not for the purpose of treatment or counseling ). ¶15 are Accordingly, we hold that special education records not protected privilege. in their entirety by the medical records In so doing, we recognize that certain information contained within special education records may be protected by the medical records privilege. The trial judge properly addressed this concern by conducting an in camera review of the documents and withholding and redacting protected by the medical privilege.5 specific information We further hold that the other records were not so privileged. 2. Alleged Special Education Records Privilege ¶16 Father next argues that the documents and information the trial court has required him to produce are subject to a special education records privilege created by state and federal 5 Defendants have not argued in this special action or below that the trial court withheld documents or information that were not covered by the medical records privilege. The parties did not submit to this court and do not contest the withheld documents or redacted information from the trial court s first in camera review. Patrick has submitted to this court the documents included in the motion for reconsideration and reviewed in the second in camera review. In its order on the motion for reconsideration, the trial court exempted one listed document from production and indicated that it had highlighted information to be redacted on six other listed documents. As Defendants have not claimed the trial court highlighted for redaction information not covered by the medical records privilege, we do not review the highlighted information to determine if it does fall into the medical records privilege. 11 law.6 The existence of a privilege and issues of statutory interpretation are legal issues that we review de novo. Miles, 211 Ariz. at 477, ¶ 7, 123 P.3d at 671; Stapert v. Ariz. Bd. of Psychologist Exam rs, 210 Ariz. 177, 179, ¶ 7, 108 P.3d 956, 958 (App. 2005). ¶17 Arizona law provides that [t]he right to inspect and review educational records and the release of or access to these records, other information or instructional materials is governed by federal law in the family educational and privacy rights act of 1974 (20 [U.S.C.] §§ 1232g, 1232h and 1232i), and federal regulations issued pursuant to such act. A.R.S. § 15-141(A) (Supp. 2006). The Family Educational Rights and Privacy Act of 1974 ( FERPA ), 20 U.S.C. § 1232g (2000 & Supp. 2006), states the following concerning the release of educational records: (2) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection, unless (A) there is written consent from the student s parents specifying records to be released . . . or 6 The documents subject to this argument include the documents that were the subject of the medical records privilege argument and all remaining documents. 12 (B) except as provided in paragraph (1)(J) [creating exceptions for subpoenas issued for Federal grand jury and law enforcement purposes], such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency. 20 U.S.C. § 1232g(b)(2). The federal regulations track the statute and allow disclosure without consent if [t]he disclosure is to comply with a judicial order or lawfully issued subpoena. 34 C.F.R. § 99.31(a)(9)(i) (July 1, 2006 and October 13, 2006). Thus, there is no statutory bar precluding production of the records, only requirements that must be met before disclosure can occur. ¶18 In general, a privilege disclosure even by court order. will protect records from See Ornelas v. Fry, 151 Ariz. 324, 329, 727 P.2d 819, 824 (App. 1986) (holding that plaintiffs may not compel discovery of a doctor s alcoholism treatment records pursuant to A.R.S. § 12-2235 (2003) (physician-patient privilege), in negligence action against doctor); Bain v. Superior Court, 148 Ariz. 331, 333, 714 P.2d 824, 826 (1986) (denying motion to compel discovery of records from sessions with psychologist pursuant to (psychologist-patient privilege)). A.R.S. (2002) However, the legislature may create exceptions to statutory privileges. 13 § 32-2085 Martin v. Reinstein, 195 Ariz. 293, 320, ¶ 96, 987 P.2d 779, 806 (App. 1999) (stating that statutory privileges, such as the physician-patient privilege, may be limited by the legislature, for example, by disregarding the privilege in weighing the needs of parties to civil litigation ); State ex rel. Udall v. Superior Court, 183 Ariz. 462, 465, 904 P.2d 1286, 1289 (App. 1995) (stating that statute abrogates physician-patient privilege in cases involving abuse of a child); State v. Wilson, 200 Ariz. 390, 394-95, ¶ 11, 26 P.3d 1161, 1165-66 (App. 2001) (stating that physician- patient privilege is not absolute as legislature has created exceptions). Thus, we must look at the statute that creates the statutory privilege to determine what privileged means in a specific context. The same is true of statutes certain records or communications confidential. that make See Hanson v. Rowe, 18 Ariz. App. 131, 134, 500 P.2d 916, 919 (1972) (holding that statute making child welfare agency records confidential but disclosable pursuant to a court order did not create an absolute privilege for such records). ¶19 term The above federal and state statutes do not use the privileged with respect to educational records. The statutes do not create an independent privilege for educational records. See also State v. Birdsall, 116 Ariz. 196, 198-99, 568 P.2d 1094, 1096-97 (App. 1977) (concluding that FERPA and the predecessor statute to A.R.S. § 15-141 permitted disclosure of 14 school records judicial pursuant order). conclusion. to Other a subpoena duces jurisdictions have tecum reached or other the same See Rios v. Read, 73 F.R.D. 589, 598 (E.D.N.Y. 1977) ( It is obvious . . . that [FERPA] does not provide a privilege against disclosure of student records. ); Victory Outreach Ctr. v. City of Philadelphia, 233 F.R.D. 419, 420 (E.D. Pa. 2005) (authorizing the release of personally identifiable information contained in educational records pursuant to a subpoena in a civil suit); Anderson by Anderson v. Seigel, 668 N.Y.S.2d A.D.2d 1003, 409 1005 (N.Y. (N.Y. App. Sup. Div. Ct. 1998) 1998) ( it is rev d well in part settled 255 that academic and school records generally are not protected by any privilege ); Zaal v. State, 602 A.2d 1247, 1255 (Md. 1992) ( [FERPA] did not . . . create a privilege against disclosure of student records to be invoked by the school, the student, or his or her parents ); Reeg v. Fetzer, 78 F.R.D. 34, 36 (W.D. Okla. 1976) (holding that educational records are not privileged under FERPA); Gaumond v. Trinity Repertory Co., 909 A.2d 512, 517-19 (R.I. 2006) (holding that FERPA and state law did not create an educational records privilege). At most, the federal and state statutes make educational records confidential, although FERPA does not use this term. Regardless of the term we apply, the protections afforded to educational records by statute do not prohibit, but rather permit, disclosure pursuant to court order. 15 See D.L. v. Unified Sch. Dist. #497, 270 F. Supp. 2d 1217, 1244 (D. Kan. 2002), aff d in part, vacated in part on other grounds, 392 F.3d 1223 (10th Cir. 2004) ( The regulation at issue [34 C.F.R. § 99.31(a)(9)(i)] clearly information be confidential may provides disclosed that otherwise pursuant to court Individuals with order. ). ¶20 Father Disabilities also Education argues Act that the ( IDEA ), 20 U.S.C. §§ 1401-1482 (2000 & Supp. 2006), creates a privilege for special education records. The IDEA states that [t]he Secretary shall take appropriate action, in accordance with § 1232g of this title, to ensure the protection of the confidentiality of any personally identifiable maintained data, [by subchapter. information, educational and records agencies] collected pursuant 20 U.S.C. § 1417(c) (Supp. 2006). to or this One provision of the subchapter requires the states to develop, review, and revise an IEP for each child with a disability. 20 U.S.C. § 1412(a)(4) (Supp. 2006). ¶21 that As with FERPA, § 1417(c) of the IDEA does not state special education records are privileged. The privileged and confidential are not interchangeable. terms Ariz. Dep t of Econ. Sec. v. O Neil, 183 Ariz. 196, 197, 901 P.2d 1226, 1227 (App. 1995); see also Hanson, 18 Ariz. App. at 133, 500 P.2d at 918 (holding that 16 statute making child welfare agency court records order records). confidential did not create but an disclosable absolute pursuant privilege for to a such Instead, it provides special education records the protections accorded education records in general in 20 U.S.C. § 1232g. And, as set forth above, § 1232g does not create an independent privilege for educational records. Section 1232g allows educational records to be produced pursuant to judicial order or subpoena. ¶22 In sum, the federal and state statutes discussed above do not create an independent privilege for educational records in general recognize or and information, the subset respect yet the of that special these legislative education records bodies records. contain involved We sensitive have not created a privilege precluding production of this information. 3. Confidentiality of Special Education Records ¶23 In the alternative, Father argues that Austin has an expectation of privacy in his special education records that precludes their disclosure. This claim is based on the specific statutory language that provides for confidentiality. As part of this argument, Father claims that Defendants must show, and have not, a need for the records that outweighs Austin s privacy interest. We review the trial court s decisions in discovery issues for abuse of discretion. State Farm Mut. Auto. Ins. Co. v. Superior Court, 167 Ariz. 135, 137-38, 804 P.2d 1323, 1325-26 17 (App. 1991). We review any implicated legal issues de novo. Miles, 211 Ariz. at 477, ¶ 7, 123 P.3d at 671. a. The Applicable Standard ¶24 As previously noted, A.R.S. § 15-141(A) incorporates the provisions in FERPA relating to the release of and access to education records. While FERPA does not create a privilege in education it records, educational agency § 1232g(b)(1). education can In records does as limit release addition, the instances such records. the IDEA confidential. in refers 20 U.S.C. which 20 to an U.S.C. special § 1417(c). These express statutory mandates recognize privacy interests in special education records that Father may invoke on behalf of his son. ¶25 We now turn to the impact that the confidentiality of the records has on their discoverability in the present special action. We emphasize that the issue here is not relevancy for admissibility at trial, but whether the standard for pre-trial discovery of the documents is met. The requirement of relevancy at the discovery stage is more loosely construed than that required at trial. Brown v. Superior Court, 137 Ariz. 327, 332, 670 P.2d 725, 730 (1983). Discovery may extend to any matter, not privileged, which is relevant to the subject matter involved in the pending 18 action and reasonably calculated to lead to the discovery of admissible evidence. Ariz. R. Civ. P. 26(b)(1). ¶26 There jurisdictions is as to a substantial whether the disparity among confidentiality the required by statute is a factor in considering discoverability or whether confidentiality is to be considered only by limiting the persons to whom the discoverable material can be disclosed. See Rios, 73 F.R.D. at 599 (holding by federal district court that before a court orders disclosure of educational records, the party seeking disclosure is required to demonstrate a genuine need for the information that outweighs the privacy interest of the students ); Zaal, 602 A.2d at 1256 (holding by Maryland Court of Appeals that significantly congressional heavy policy burden on evidenced the party by FERPA seeking places access to student records ); Poole v. Hawkeye Area Cmty. Action Program, 666 N.W.2d 560, 565 (Iowa 2003) (holding that the school records of the plaintiffs nonparty siblings were admissible at trial when expert testimony established that the records were relevant according to standard relevancy test); Anderson by Anderson, 255 A.D.2d at 410 (applying standard relevancy test to determine discoverability of academic and school records of plaintiff s mother and Determinism, Exposure siblings); Jennifer and The Example B.U. L. Torts: Litigation, 77 19 Wriggins, Rev. of Genetics, Discovery 1025, in 1086-87 IQ, Lead (1997) (arguing for restrictions privacy interests); on Melissa non-party E. discovery Rosenthal, to Note, protect Liberal Discovery of Non-Party Records: In Defense of the Defense, 7 Cardozo Women s L.J. 59, 81-82 (2000) (arguing that records of non-parties should be discoverable if shown to be relevant). ¶27 Applying Arizona law, we treat the statutory requirement of confidentiality to be an additional factor the trial court must consider before disclosure may occur. The trial court must first apply the traditional relevance standard to determine whether the records sought are reasonably calculated to lead to the discovery of admissible evidence. Ariz. R. Civ. P. 26(b)(1). If the records sought meet this test, the trial court must then determine whether the statutory interest in confidentiality substantially outweighs the interest in the production of the documents. fashion for otherwise several reasons. discoverable We phrase the test in this First, material limiting impedes the production truth-finding purpose of the courts: Testimonial exclusionary rules and privileges contravene the fundamental principle that the public . . . has a right to every man s evidence. As such, they must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. 20 of Trammel v. U.S., 445 U.S. 40, 50-51 (1980) (citations omitted); see also United States v. Nixon, 418 U.S. 683, 709-710 (1974) (discussing the importance of a complete presentation of evidence at trial); Church of Jesus Christ of Latter-day Saints, 159 Ariz. at 29, 764 P.2d at 764 ( Privilege statutes, which impede the truth-finding function of the courts, are restrictively interpreted. ). ¶28 Second, legislative bodies know how to specify that materials will be privileged, and not subject to disclosure, as opposed to confidential but nonetheless subject to disclosure. See Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 530-31, ¶ 20, 57 P.3d 384, 389-90 (2002) (rejecting argument that the legislature intended a showing of gross negligence when the statute spoke only of negligence because the legislature surely knows how to require a showing of gross negligence, having used that term in a great number of statutes ); State v. Ault, 157 Ariz. 516, 520, 759 P.2d 1320, 1324 (1988) ( Because the legislature obviously knew how to require a jury finding when that was its intention and did not make such a provision here, we conclude seriousness to that require the a legislature separate did finding not by intend the trier for of fact. ); Roubos v. Miller, 214 Ariz. 416, 420, ¶ 20, 153 P.3d 1045, 1049 (2007) ( The legislature 21 knows how to exempt proceedings when it wishes to do so, and it has not chosen to exempt civil infraction proceedings. ) (citation omitted). ¶29 made Neither the Congress nor the Arizona State Legislature educational records privileged and not diclosure; they only made them confidential. subject to Thus, to effect a total prohibition on disclosure of the records, as contrasted with a permit, restricted the statutory particular disclosure confidential proponent case that non-disclosure must of confidentiality is no restrictions the protect that requirement that will of disclosure on the show so statutes that great extent statutory the in of interest a the in confidentiality. ¶30 In determining whether the statutory interest in the confidentiality outweighs the of the interest in documents their at issue production, the substantially trial court should consider the following factors: (1) the strength of the relationship between the confidential information and the issue in dispute, see Zaal, 602 A.2d at 1261; (2) the harm that may result from the dissemination of the confidential information, see id. at 1262; (3) whether protective devices limiting the disclosure of the information (such as in-camera inspections and need-to-know orders) can significantly reduce the harm from dissemination, see Jolly v. Superior Court, 112 Ariz. 186, 191, 540 P.2d 658, 663 (1975); (4) whether the information can be 22 obtained from some other source that is either more convenient [or] less burdensome, see Ariz. R. Civ. P. 26(b)(1); (5) whether the party seeking to preclude production is the party that put the need for the documents at issue, see Danielson v. Superior Court, 157 Ariz. 41, 43, 754 P.2d 1145, 1147 (App. 1978) (stating that physician-patient privilege is waived when party claiming privilege puts medical condition at issue); State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 61, ¶ 23, 13 P.3d 1169, 1178 (2000) (citing Ulibarri v. Superior Court, 184 Ariz. 382, 385, 909 P.2d 449, 452 (App. 1995)) (stating that a waiver [of the attorney-client privilege] can be implied when a party injects a matter that, in the context of the case, creates such a need for the opponent to obtain the information allegedly protected by the privilege that it would be unfair to allow that party to assert the privilege ); and (6) any other factors pertinent to determining whether confidentiality should outweigh production. See Ariz. R. Civ. P. 26(c)(2) ( The burden of showing good cause for [a protective] order shall remain with the party seeking confidentiality. ). ¶31 When a party makes a discovery request for material that the trial court has found discoverable pursuant to Rule 26(b)(1), the interests in satisfactorily protected by confidentiality in camera may review typically and an be order limiting disclosure of the information to those with a need to 23 know for purposes of the litigation. See Hanson, 18 Ariz. App. at 135, 500 P.2d at 920; Ariz. Portland Cement Co. v. Ariz. State T.C., 185 Ariz. 354, 357, 916 P.2d 1070, 1073 (App. 1995); Pima County v. Harte, 131 Ariz. 68, 70, 638 P.2d 735, 737 (1981); Cornet Stores v. Superior Court, 108 Ariz. 84, 88, 492 P.2d 1191, 1195 (1972). Further, these interests can be protected at trial through the sealing of the record and (if requested and appropriate) the closing of the courtroom to certain portions of the trial proceedings where the confidential information is discussed. See Ariz. R. Sup. Ct. 123(c)(1) ( public access to some court records may be restricted to protect confidentiality interests); In re Iowa Freedom of Info. Council, 724 F.2d 658, 661-62 (8th Cir. 1983) (permitting trial court to close proceedings to protect confidentiality of trade secrets); Republican Co. v. Appeals Court, 812 N.E.2d 887, 892 (Mass. 2004) ( The public's right of access to judicial records, including transcripts, evidence, memoranda, and court orders, may be restricted, but only on a showing of good cause. ). However, we decline to rule out the prospect that in some circumstances the statutory interest in confidentiality may be so great as to completely preclude production of otherwise discoverable information.7 7 Plaintiff also bases his claim of a violation of privacy issues on constitutional, as contrasted with statutory, 24 b. ¶32 Applying the Standard We now turn to the application of this standard to the facts in this case. Applying the first factor, the strength of the relationship between the confidential information and the issue in dispute, we note that the discovery sought is strongly related to the core issue in the litigation: whether the disabilities at issue were caused by Defendants malpractice or by other sources. Christopher Cunniff, a medical doctor, submitted an affidavit stating that, to a reasonable degree of medical probability, Patrick s family history was a contributing factor to his alleged disabilities and that the characteristics exhibited in Patrick [] appear to be familial characteristics. 8 He then opined that Austin s academic records are relevant and material to my expert review, analysis and consideration developmental of the disabilities source found and in etiology Patrick. of alleged Familial grounds. We reject the constitutional argument because it was not raised in the trial court. 8 We do not hold that an expert affidavit is always necessary to show relevance or discoverability in a case where confidentiality, and thus privacy, interests are at stake. See Baldwin by Baldwin v. Franklin General Hosp., 151 A.D.2d 532, 533 (N.Y. App. Div. 1989) (holding that relevance and discoverability of academic records were established by mother s testimony that brother of plaintiff also had speech impairment and learning difficulties requiring special education). That will depend on the nature of the claim and the information at issue. 25 characteristics are those tending to occur in more members of a family than Collegiate 2001). trial expected by Dictionary chance 419 alone. (Frederick Merriam-Webster s C. Mish ed., 10th ed. Thus, the affidavit presents evidence from which the court relevant could to a properly core issue conclude in the that case: the records whether were Patrick s disabilities are familial characteristics and part of a family history contrasted that with malpractice. nonparty contributed injuries to the resulting See Poole, 666 siblings school records alleged from N.W.2d were disabilities, any at 565 alleged medical (holding relevant as because that of expert testimony that genetics may account for some of the symptoms exhibited by the plaintiffs ); Wepy by Wepy v. Shen, 175 A.D.2d 124, 125 (N.Y. App. Div. 1991) (holding academic records of siblings admissible based on expert affidavit stating that a possible connection existed between the neurological problems of the plaintiff and those of her siblings, which would support a defense that the injuries sustained by the plaintiff have a genetic cause ).9 9 In Monica W. v. Milevoi, 252 A.D.2d 260 (N.Y. App. Div. 1999), the appellate court affirmed the trial court s decision precluding disclosure of educational records. The court found that the material is privileged, id. at 263, an interpretation of the statute with which we disagree. There was likewise no affidavit presented by an expert, and the relevance of the requested information to any claim or defense in the 26 ¶33 The second and third factors deal with the harm that may result from the disclosure and the ability to limit that harm. The trial court acted properly in considering and safeguarding confidentiality and privacy interests when it (1) conducted an in camera review of the confidential special education records and (2) issued a protective order limiting the dissemination of these records to those with a need to know for purposes of this litigation. Plaintiffs did not show that there would be substantial harm that would occur based on the limited disclosure allowed by the trial court. ¶34 that As to the fourth factor, there was likewise no showing this same information could be obtained from a more convenient or less burdensome source. ¶35 The fifth factor goes to the relationship between the party seeking to preclude production and that of the party who put the matter at issue: whether the party seeking to preclude production is the party that put the need for the documents at issue . Supra Patrick s. ¶ 30. Here, the records are Austin s, Austin did not put this matter at issue. not Austin s father, on behalf of Patrick (but not Austin), put the matter at issue. This factor weighs in favor of Austin s position. Regardless, once the matter was put at issue by Austin s father, action [had] not been established. Id. These are substantially different from those in the case at hand. 27 facts Austin s educational records going to familial characteristics became relevant, as set forth by Dr. Cuniff and determined by the trial court. We emphasize that there is no issue here as to whether the medical records privilege held by Austin has been waived; the trial court expressly precluded production of those documents.10 ¶36 to Applying these factors, there is nothing that leads us conclude that the trial court abused its discretion in allowing production of these documents on a restricted basis. In fact, the production after an in camera review, with limitations based on a need to know basis, is virtually a textbook description of how such a discovery matter should be handled. 10 When a minor child s parents file a medical malpractice action on the child s behalf, the parents, as legal guardians, hold the physician-patient privilege. See Duquette v. Superior Court, 161 Ariz. 269, 272 n.5, 778 P.2d 634, 637 n.5 (App. 1989). The parents thus have the right to waive the privilege. See id. (holding that parents of minor child waived physician-patient privilege of child by putting child s medical condition at issue). Other states have held that a parent who brings a medical malpractice action on behalf of one child does not waive the physician-patient privilege in favor of the child s siblings. See Kunz v. S. Suburban Hosp., 761 N.E.2d 1243, 1247-48 (Ill. App. Ct. 2001); Scharlack v. Richmond Mem l Hosp., 102 A.D.2d 886, 887-88 (N.Y. App. Div. 1984). The issue is not presented for our review here, as we deal with records that are confidential but subject to disclosure, as contrasted with medical records that are not subject to disclosure if there is a privilege that has not been waived. 28 Conclusion ¶37 For the foregoing reasons, we affirm the order of the trial court regarding the discovery of the special education records at issue in this special action. ____________________________ DANIEL A. BARKER, Judge CONCURRING: _________________________________ PATRICIA K. NORRIS, Presiding Judge _________________________________ JON W. THOMPSON, Judge 29

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