                              IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                          GARY ABEYTA,
                           Petitioner,

                                 v.

                     HON. BRADLEY M. SOOS,
            JUDGE PRO TEMPORE OF THE SUPERIOR COURT
    OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PINAL,
                          Respondent,

                                 and

       SIERRA TUCSON, INC., AN ARIZONA CORPORATION; AND
                        HEIDI SONNTAG,

                      Real Parties in Interest.

                     No. 2 CA-SA 2013-0078
                     Filed February 19, 2014


Special Action Proceeding from the Superior Court in Pinal County
                        No. CV201301415

       JURISDICTION ACCEPTED; RELIEF GRANTED


                            COUNSEL

Kelly/Warner, PLLC, Scottsdale
By Garrick A. McFadden
Counsel for Petitioner
                           ABEYTA v. SOOS
                          Opinion of the Court

Renaud Cook Drury Mesaros, PA, Phoenix
By Charles S. Hover III
Counsel for Real Party in Interest Sierra Tucson

Lewis Brisbois Bisgaard & Smith LLP, Phoenix
By James K. Kloss and Bruce C. Smith
Counsel for Real Party in Interest Sonntag


                               OPINION

Judge Miller authored the decision of the Court, in which Presiding
Judge Vásquez and Chief Judge Howard concurred.


M I L L E R, Judge:

¶1            In this special action, petitioner Gary Abeyta challenges
the order of the respondent judge (trial judge) denying his motion
for a protective order, in which he asked that defendants Sierra
Tucson, Inc. and Heidi Sonntag be prohibited from questioning him,
a non-party fact witness, about his mental health treatment and
attendant records that had been disclosed without his consent.
“Special action review of an order compelling discovery over the
objection of a party asserting a privilege is appropriate because there
is no equally plain, speedy, or adequate remedy by appeal.” Twin
City Fire Ins. Co. v. Burke, 204 Ariz. 251, ¶ 3, 63 P.3d 282, 283 (2003);
see also Ariz. R. P. Spec. Actions 1(a) (special-action jurisdiction
warranted when no equally plain, speedy, or adequate remedy by
appeal). It also is appropriate to accept special-action jurisdiction
when, as here, the challenged ruling ultimately involves pure issues
of law that require no further fact-finding. See Salvation Army v.
Bryson, 229 Ariz. 204, ¶ 2, 273 P.3d 656 (App. 2012). We therefore
accept jurisdiction of this special action and, for the reasons stated
below, grant relief.

                      Factual and Procedural Background

¶2          “When reviewing the superior court’s denial of relief in
a special action, we view the facts in the light most favorable to

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                          Opinion of the Court

sustaining the court’s ruling.” Hornbeck v. Lusk, 217 Ariz. 581, ¶ 2,
177 P.3d 323, 324 (App. 2008). In April 2011, Abeyta began
counseling with Sonntag, a licensed clinical social worker. He and
Paul Bruno, the plaintiff in the underlying civil action, were engaged
in a long-time domestic relationship and, on Sonntag’s advice,
Bruno eventually joined Abeyta in counseling.

¶3          Sonntag advised the couple that all communications
with her “would be freely communicated to the other person,” and
in the course of the counseling she “kept one, single chart.” She
provided Abeyta and Bruno an informed consent for treatment
form, which stated that in “relational counseling, all involved parties
need to be present during counseling sessions. Counselor does not
switch from individual counseling to relational counseling or visa
versa.” During the course of counseling, Bruno and Abeyta
exchanged electronic mail messages with Sonntag about their
treatment.

¶4            In March 2012, Bruno checked into Sierra Tucson for in-
patient treatment based on Sonntag’s recommendation. While there,
Bruno injured his back after a staff member required him to move
his suitcase. Bruno brought an action against Sierra Tucson and
Sonntag, alleging breach of contract, breach of the covenant of good
faith and fair dealing, negligence, intentional misrepresentation, and
infliction of emotional distress, all in relation to his stay and injury at
Sierra Tucson.

¶5          In May 2013, Sonntag’s attorney disclosed “a copy of
the Bruno/Abeyta chart from their joint counseling with [her].”
Sonntag also noticed Abeyta’s deposition pursuant to subpoena.
Asserting privilege, Abeyta objected to the disclosure of his records
and sought a protective order against being required to submit to
questioning about those records and his treatment during the
deposition.

¶6         The trial judge denied the motion, finding Abeyta and
Bruno had “engaged in joint counseling” with Sonntag and she had
advised them “that all communications would be freely disclosed to
the other person” and they had agreed. The judge noted that
Sonntag maintained one chart for the joint counseling, which


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                         Opinion of the Court

Sonntag’s counsel intended to use in deposing Abeyta. Citing
Hahman v. Hahman, 129 Ariz. 101, 628 P.2d 984 (App. 1981), the judge
concluded that because Abeyta had agreed to joint counseling and
had “engaged in many written detailed communications with
[Sonntag] regarding her methods of treatment of [Bruno],” Abeyta
had waived any privilege.

                              Discussion

¶7            In his petition for special action relief, Abeyta contends
the trial judge abused his discretion in denying Abeyta’s motion for
a protective order because he incorrectly applied this court’s
decision in Hahman and the relevant law of privilege. In a special
action, we review the trial judge’s ruling for an abuse of discretion,
Rule 3, Ariz. R. P. Spec. Actions, and such an abuse encompasses an
error of law, Twin City Fire, 204 Ariz. 251, ¶ 10, 63 P.3d at 284-85.
The existence of a privilege is a legal question, and whether a
privilege has been waived is a mixed question of law and fact; both
are subject to our de novo review. Id.

¶8            Pursuant to A.R.S. § 32-3283(A), the confidential
relationship between a licensed clinical social worker, such as
Sonntag, and a patient “is the same as between an attorney and a
client.” And, § 32-3283(A) provides that “a licensee shall not
voluntarily or involuntarily divulge information that is received by
reason of the confidential nature of the” counseling relationship
“[u]nless a client waives this privilege in writing or in court
testimony.”     This privilege “prohibit[s] not only testimonial
disclosures in court but also pretrial discovery of information within
the scope of the privilege.” Bain v. Superior Court, 148 Ariz. 331, 333,
714 P.2d 824, 826 (1986) (discussing scope of psychologist-patient
privilege, which, like behavioral health professional-patient
privilege is equivalent to attorney-client privilege).

¶9           Abeyta asserts he did not waive his privilege “either in
writing or in court testimony,” but rather has “steadfastly asserted
the privilege.” Nothing in the record before us suggests Abeyta
testified about his treatment with Sonntag. As to a written waiver,
Sonntag relies on the informed consent for treatment form she



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                         Opinion of the Court

provided to Abeyta. But, even if Abeyta had signed that form,1 the
form itself did not address the privilege between Sonntag and
Abeyta, except to inform him that in counseling with more than one
client, all parties need to be present.2

¶10           Under Arizona Administrative Code R4-6-1105(A),
promulgated pursuant to A.R.S. § 32-3253(A)(1), “[a] licensee shall
only release or disclose client records of any information regarding a
client” “[i]n accordance with applicable federal or state law” or
“[w]ith written authorization from the client.” Such a written
authorization must include, inter alia, the name of the disclosing
person, the purpose of the disclosure, the person or entity receiving
the information, and a description of the record or information.
Ariz. Admin. Code R4-6-1105(C). Likewise, under federal law, the
Health Insurance Portability and Accountability Act’s (HIPAA)
privacy rule requires a detailed authorization for uses and
disclosures of protected health information.           See 45 C.F.R.
§ 164.508(c); see also HIPAA Frequent Questions: Authorization Use
& Disclosure, http://www.hhs.gov/hipaafaq/use/264.html (last
visited Jan. 17, 2014) (distinguishing between “consent for uses and
disclosures of protected health information for treatment” and
“‘authorization’” required “for uses and disclosures of protected
health information not otherwise allowed by privacy rule). The
consent for treatment on which Sonntag relies does not meet the
requirements for a written consent for disclosure under the above
rules. And we cannot say that, given its limited scope, which
suggested, at most, that the client waived the privilege between
those involved in joint counseling, it was sufficient to otherwise
waive Abeyta’s privilege.

¶11        Beyond a written authorization, however, in the context
of the psychologist-patient privilege, our supreme court has
determined that a patient may also waive the privilege by


      1The   form bears one signature, which is not legible.
      2 The informed consent form also referred to a “HIPAA
NOTICE OF PRIVACY PRACTICES,” but that document is not part
of the record.


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                        Opinion of the Court

“pursu[ing] a course of conduct inconsistent with observance of the
privilege.” Bain, 148 Ariz. at 334, 714 P.2d at 827. The court reached
this conclusion based on its decision in Throop v. F.E. Young & Co., 94
Ariz. 146, 158, 382 P.2d 560, 568 (1963), quoting 8 Wigmore on
Evidence § 2388, at 855 (McNaughton Rev. 1961), in which it had
ruled that a waiver occurs when a privileged claimant’s conduct
creates a situation in which “‘it would be unfair and inconsistent to
permit the retention of the privilege.’” In other words, the privilege
cannot be used as “‘both a sword and a shield.’” Id., quoting 8
Wigmore, supra, § 2388, at 855.

¶12            Sonntag argues that this is what Abeyta seeks to do.
She maintains that because Bruno “placed his mental health at issue
by suing” her, she is entitled to question Abeyta about various
aspects of their counseling. And, she contends, Abeyta cannot object
to her use of his records when Bruno has given at least some of the
records to a third party and has indicated Abeyta will testify on his
behalf about “the role . . . Sonntag played in keeping him at Sierra
Tucson” and his “loss of enjoyment of life.” Likewise, in his ruling,
the trial judge also noted Bruno’s claim of a “loss of enjoyment of
life” as a factor in deciding Abeyta had waived his privilege.

¶13        Bruno’s privilege waiver, however, does not similarly
waive Abeyta’s privilege.      Under the administrative rules
promulgated pursuant to A.R.S. § 32-3253(A)(1),

            Where a licensee provides behavioral
            health services to more than one person in
            a family, each family member who is
            legally competent to consent to authorize
            release of client records shall sign a written
            authorization to release client records
            regarding that family member or any
            information obtained from that family
            member. Without such an authorization, a
            licensee shall not disclose that family
            member’s client record or any information
            obtained from that family member.




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                         ABEYTA v. SOOS
                        Opinion of the Court

Ariz. Admin. Code R4-6-1105(E).3 Contrary to Sonntag’s assertion
that “[t]here is no Arizona statute or regulation on joint versus
individual counseling and the chart,” Arizona Administrative Code
R4-6-1103(A) requires that a licensee “ensure that a client record is
maintained for each client.” (Emphasis added). The administrative
rules in this area, therefore, contemplate that information among
participants in a joint-counseling situation will not remain
confidential, but they do require that confidentiality be maintained
as against third parties. Thus, the waiver by one participant of the
privilege is not sufficient to waive the privilege as to “information
obtained from” all participants. Ariz. Admin. Code R4-6-1105(E).

¶14           In reaching a contrary conclusion, the trial judge relied
on this court’s decision in Hahman, as does Sonntag. In Hahman, we
determined that when two or more parties employ the same
attorney, their communications are not privileged as against each
other; in a suit between the two parties, either can compel the
attorney to disclose the communications. 129 Ariz. at 103, 628 P.2d
at 986. But nothing in Hahman suggests that by choosing joint
representation or, in this case joint treatment, communications to the
attorney or therapist are not privileged in actions against third
parties. Id.; cf. Mrozinski v. Pogue, 423 S.E.2d 405, 408 (Ga. Ct. App.
1992) (“The strongest public policy considerations militate against
allowing a [mental health professional] to encourage a person to
participate in joint therapy, to obtain his trust and extract all his
confidences and place him in the most vulnerable position, and then
abandon him on the trash heap of lost privilege.”).

¶15          Indeed, contrary to Sonntag’s assertion, here, unlike the
situation in Hahman, Bruno’s suit is against third parties and not
Abeyta. Thus, Hahman does not dictate that Bruno can require
Abeyta to testify about their privileged communications if Abeyta
wishes to maintain his privilege. Hahman, 129 Ariz. at 103, 628 P.2d
at 986. If, however, Abeyta agrees to provide testimony on Bruno’s
behalf, the substance of which includes Abeyta volunteering his own
privileged information to advance Bruno’s case, the privilege is

      3The rules define “[f]amily member” to include a “significant
other.” Ariz. Admin. Code R4-6-101.


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                        Opinion of the Court

waived, and Abeyta will be open to questioning by third parties as
well. Were we to find otherwise, we would be permitting Abeyta to
use the privilege to present only that information he wishes to
disclose in support of Bruno’s claims, while shielding from Sonntag
the information she seeks. See Throop, 94 Ariz. at 158, 382 P.2d at
568. On the record before us, Bruno’s statement about Abeyta’s
testimony in his disclosure statement, noted above, is insufficient to
establish that Abeyta will testify on Bruno’s behalf in such a way as
to improperly use the privilege as a sword and a shield.4

¶16          Sonntag further suggests, and the trial judge found, that
by talking to Bruno about their treatment by Sonntag, Abeyta
waived the privilege. But, even assuming arguendo Bruno could be
considered a third party to Abeyta’s therapy, nothing in Abeyta’s
communicating with Bruno about their joint therapeutic endeavors
suggests an intent to waive the privilege. Cf. State v. Archibeque, 223
Ariz. 231, ¶ 24, 221 P.3d 1045, 1052 (App. 2009) (no waiver of clergy-
penitent privilege when husband told wife about contents of
confession); State v. Sucharew, 205 Ariz. 16, ¶¶ 11-12, 66 P.3d 59, 65
(App. 2003) (no waiver of attorney-client privilege when client’s
parents present during consultation).

¶17          Sonntag argues we can affirm the trial judge’s ruling
because HIPAA allowed her to disclose Abeyta’s records. Quoting
the federal regulation, she maintains HIPAA provides that no
authorization is required for the disclosure of “psychotherapy
notes” when the therapist uses the notes “to defend [her]self in a
legal action or other proceeding brought by the individual.”
45 C.F.R. § 164.508(a)(2)(i)(C). This provision does not apply
because Abeyta has not brought a legal action against Sonntag.


      4Notably, in his motion for a protective order, Abeyta stated:
“No written consent has been obtained by any of the parties in this
matter to disclose Mr. Abeyta’s records.” In her response to
Abeyta’s amended petition for special action, Sonntag asserts that
Bruno has conceded that the “joint counseling sessions are not
privileged in this litigation.” (Emphasis omitted.) But, Bruno’s
concession does not waive Abeyta’s privilege.


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                         ABEYTA v. SOOS
                        Opinion of the Court

¶18          Sonntag also contends we could uphold the trial judge’s
ruling based on 45 C.F.R. § 164.512(e)(1)(i) and (ii), which provide
for disclosures in judicial proceedings “in response to an order of a
court” or “in response to a subpoena, discovery request, or other
lawful process.” But Sonntag does not cite to anything in the record
before us that establishes or even suggests the privileged
information was released pursuant to a court order, subpoena, or
discovery request; they apparently were disclosed as part of the
defendants’ initial disclosures. And because the order is not
supported by the law, it cannot supply the required justification.

¶19          Sonntag also contends that Abeyta’s privileged
information is relevant to her defense and due process requires that
it be produced. In support of her argument, she relies solely on State
ex rel. Romley v. Superior Court, 172 Ariz. 232, 836 P.2d 445 (App.
1992).    That case addresses the balance between a criminal
defendant’s rights to due process and the physician-patient privilege
in the context of the Victims’ Bill of Rights. Id. Its reasoning is not
applicable here. And in any event, we cannot say Sonntag will be
deprived of a meaningful defense if the privileged information is
protected, assuming Abeyta does not attempt to testify about his
own privileged material on Bruno’s behalf. Sonntag argues Abeyta’s
privileged information is necessary to show what facilities she and
Abeyta recommended to Bruno and how Bruno ultimately chose
Sierra Tucson, and to show Bruno’s state before his injury. But she
has not shown that such evidence cannot be obtained from sources
other than Abeyta’s privileged information. Insofar as Sonntag’s
“chart” relates to Bruno and not to information obtained from
Abeyta, that information can be used, as can non-privileged
conversations between Abeyta and Bruno, and questions about
Bruno’s behavior, financial situation, or physical health could
certainly be asked outside the context of the couple’s counseling.

                             Disposition

¶20         For the reasons stated above, the trial judge’s order
denying Abeyta’s request for a protective order is vacated. The trial
court is directed to enter a protective order consistent with this
decision.



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