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Ulibarri v. Superior Court8/22/1995
NOYES, Presiding Judge
In 1990, Patricia Ulibarri sued her former psychiatrist, Dr. Dean Gerstenberger, for medical malpractice, alleging that in 1983 and 1984 he hypnotized her and then subjected her to nonconsensual sexual relations. Gerstenberger answered that all sexual relations with Ulibarri were consensual, he filed a counterclaim accusing her of blackmailing him in 1986 by threatening to go public with their affair. Gerstenberger filed a motion for summary judgment, arguing that the complaint was time-barred because it was filed about six years after the alleged malpractice, and the applicable statute of limitations, Ariz. Rev. Stat. Ann. ("A.R.S.") section 12-542, is two years. In response to the motion, Ulibarri argued that the statute of limitations was tolled because Gerstenberger's post-hypnotic suggestions caused her to have no memory of their sexual relations until she was hypnotized by a gynecologist in 1989. The trial court granted summary judgment to Gerstenberger. Ulibarri appealed, and this court reversed and remanded, finding that Ulibarri had "raised a material fact issue as to whether she could have discovered the existence of her cause of action within the statutory time period." Ulibarri v. Gerstenberger, 178 Ariz. 151, 162, 871 P.2d 698, 709 (App. 1993).
The case is back here on a pretrial special action. Ulibarri seeks relief from trial court discovery orders that overruled her invocation of the marital communications privilege regarding one communication and the attorney-client privilege regarding another. Each communication allegedly involved pre-1987 statements by Ulibarri about her sexual relations with Gerstenberger, thus impeaching her claim that Gerstenberger caused her to not "discover" those sexual relations until 1989.
Special action jurisdiction is appropriate when no equally plain, speedy, and adequate remedy is available by appeal. See Ariz. R. P. Special Actions 1. Existence of a privilege is a question of law, and a special action is the appropriate means of relief when the trial court orders disclosure of information that a party believes is privileged. Blazek v. Superior Court, 177 Ariz. 535, 536, 869 P.2d 509, 510 (App. 1994). We accepted jurisdiction and granted relief in part, finding a limited waiver of the attorney-client privilege and no waiver of the marital privilege, with this opinion to follow.
Attorney-Client Privilege
Gerstenberger alleged that part of Ulibarri's blackmail efforts included her telling him in 1986 that she had consulted an attorney about their affair, and that the attorney had advised her to sue Gerstenberger. Ulibarri denied making these statements to Gerstenberger, and she invoked the attorney-client privilege to prevent his deposition of the attorney, J. Michael Flournoy. Gerstenberger filed a motion to depose Flournoy and the trial court found waiver of the privilege, granted the motion, and stayed the deposition pending resolution of this special action.
A.R.S. section 12-2234 provides, "In a civil action an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment." The purpose of this privilege is to encourage a client to provide all information to the attorney so the attorney can provide effective legal representation to the client. Granger v. Wisner, 134 Ariz. 377, 379, 656 P.2d 1238, 1240 (1982). The privilege protects communication between lawyer and client; "it doe
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