                                                                 FILED BY CLERK
                         IN THE COURT OF APPEALS
                             STATE OF ARIZONA                       APR 30 2012
                               DIVISION TWO
                                                                      COURT OF APPEALS
                                                                        DIVISION TWO


JOSEPH M. ARPAIO and AVA ARPAIO,              )
husband and wife; KARYN                       )
KLEINSCHMIDT, nka Karyn Markwell;             )
RANDAL S. HARENBERG and                       )
CARLENE HARENBERG, husband and                )   2 CA-SA 2012-0015
wife; SANDRA M. GARFIAS,                      )   DEPARTMENT B
                                              )
                               Petitioners,   )   OPINION
                                              )
             v.                               )
                                              )
HON. GILBERTO V. FIGUEROA, Judge              )
of the Superior Court of the State of         )
Arizona, in and for the County of Pinal,      )
                                              )
                             Respondent,      )
                                              )
             and                              )
                                              )
JENNIFER BRAILLARD,                           )
                                              )
                    Real Party in Interest.   )
                                              )


                          SPECIAL ACTION PROCEEDING

                     Pinal County Cause No. S1100CV200601548

                   JURISDICTION ACCEPTED; RELIEF GRANTED


Struck Wieneke & Love, P.L.C.
 By Daniel P. Struck, Amy L. Nguyen,
     and Nicholas D. Acedo                                               Chandler
                                                          Attorneys for Petitioners
Stinson Morrison Hecker, LLP
 By Michael C. Manning, Larry J. Wulkan,
     Leslie E. O’Hara, and Stefan M. Palys                                       Phoenix
                                                      Attorneys for Real Party in Interest


V Á S Q U E Z, Presiding Judge.


¶1            This special action arose from the underlying action real party in interest

Jennifer Braillard had brought against petitioners Joseph and Ava Arpaio, Karyn

Kleinschmidt, Randal and Carlene Harenberg, and Sandra Garfias in connection with the

death of Braillard’s mother. Petitioners challenge the respondent judge’s order, directing

them to give a “detailed accounting of the[ir] personal community assets” to their

respective attorneys, who would in turn produce them for discovery if Braillard

established a prima facie case for punitive damages. Petitioners further challenge the

respondent’s subsequent refusal to issue a protective order as to the information. We

accept jurisdiction and grant relief.

                                        Background

¶2            Braillard brought an action against petitioners and multiple other

defendants alleging negligence, gross negligence, and violations of 42 U.S.C. § 1983,

after her mother, a diabetic, died in the Maricopa County Medical Center, where she was

brought after spending three days in a Maricopa County jail without insulin or treatment

for complications caused by the lack of insulin. Braillard also sought punitive damages

“against the individual Defendants.”



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¶3            The case was set for trial. At a pretrial hearing, Braillard pointed out that

she had asserted punitive damages claims against many of the defendants, and although

she conceded she was not “entitled to see their financial statements today,” she

maintained production of that information at a later time might lead to a delay. Braillard

asked the respondent judge to order the defendants against whom she had asserted claims

for punitive damage, including petitioners, to produce “personal sworn financial

statements” that would be sealed and given to the respondent before the start of trial.

Petitioners objected, arguing that because Braillard had not yet made a prima facie

showing that punitive damages were appropriate, they should not be required to produce

or disclose their records and that Braillard’s request was “nothing more than an attempt to

intimidate” them.

¶4            The respondent judge apparently planned to wait until trial to decide

whether Braillard had made a prima facie showing for punitive damages, thereby

entitling her to present the issue of punitive damages to the jury. And, in order to avoid

what he viewed as an inevitable delay either before or during trial, the respondent ordered

petitioners to gather the information and provide it to their respective attorneys so it

would be available if he later determined Braillard had made the requisite prima facie

showing. During a telephonic status review hearing two days later, petitioners requested

“a protective order with respect to the[ir] personal financial information” in the event the

respondent determined a prima facie showing had been made. The respondent denied




                                             3
that motion, stating he did not believe he had the authority to issue such an order. This

special action followed.

                                         Discussion

¶5            “The decision to accept or reject special action jurisdiction is highly

discretionary,” and “[a] primary consideration is whether the petitioner has an equally

plain, speedy and adequate remedy by appeal.” Am. Family Mut. Ins. Co. v. Grant, 222

Ariz. 507, ¶ 9, 217 P.3d 1212, 1216 (App. 2009). “Although appellate courts do not

‘routinely entertain petitions for extraordinary relief on discovery matters,’ special action

jurisdiction may be appropriate because a discovery order is not immediately

appealable.” Id. ¶ 10, quoting Green v. Nygaard, 213 Ariz. 460, ¶ 6, 143 P.3d 393, 395

(App. 2006) (finding special action jurisdiction appropriate “when the issue involves

interpretation or application of civil procedure rules”). And when the subject of the

discovery order is “privileged or confidential material,” it is particularly appropriate to

accept jurisdiction. Cervantes v. Cates, 206 Ariz. 178, ¶ 8, 76 P.3d 449, 452 (App.

2003); see also Salvation Army v. Bryson, 629 Ariz. Adv. Rep. 11, ¶ 1 (Ct. App. Mar. 2,

2012). Under these circumstances, petitioners’ remedy by appeal would be inadequate.1

Furthermore, petitioners’ arguments present purely legal issues, which are likely to arise

again and may be resolved appropriately by special action. State ex rel. Romley v.




       1
         In her response, Braillard argues “there is no risk of irreparable harm at this stage
in the litigation” because the petitioners have not been ordered to disclose their financial
information to her. As discussed below, however, the possible harm here is not simply
that arising from disclosure, but also that caused by the burden of production.
                                               4
Martin, 203 Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App. 2002). We therefore accept special

action jurisdiction.

¶6            We first address Braillard’s contention in her response to the petition for

special action that “[t]he issue presented is moot.” Based on comments the respondent

judge made after this court granted petitioners’ request for a stay of respondent’s ruling,

Braillard maintains the respondent “gave [petitioners] the very relief [they] seek[] from

this Court.” The comments to which she is referring are the following:

              I think my instinct at this point would be to say . . . if that’s
              [the appellate court’s] ruling, and that’s what [it] feels most
              comfortable with, then we’re probably going to take the risk.
              And on the twelfth day if I find there’s a prima facie case and
              I order the documents produced and Sheriff Arpaio tells me to
              go jump in the lake, then I’ve got two choices. I hold him in
              contempt or [counsel] files another special action and the
              judge stays me and we move forward. I don’t know that
              we’re going to be able to do much more than that.

Those comments, however, were made in the context of this court having ordered the

respondent’s ruling on the petitioners’ financial information stayed pending our

resolution of this special action. Nothing in the respondent’s comments suggests he had

vacated his ruling or otherwise changed his position; rather, his comments show he was

simply complying with this court’s order. The issues raised in the petition are not moot.

¶7            We turn then to petitioners’ argument that, in light of this court’s decision

in Larriva v. Montiel, 143 Ariz. 23, 691 P.2d 735 (App. 1984), the respondent judge’s

“order to produce should be vacated.” “A trial court has broad discretion in resolving

discovery disputes.” Am. Family Mut. Ins. Co., 222 Ariz. 507, ¶ 11, 217 P.3d at 1216.


                                             5
But, “a court abuses its discretion when it commits an error of law in reaching its

decision.” Id.

¶8             Although we noted in Larriva that financial information about the

defendant is relevant “in a proper punitive damages case,” we added, “there must be

prima facie proof of a defendant’s liability for punitive damages before his wealth or

financial condition may be discovered.” 143 Ariz. at 24, 691 P.2d at 736. We rejected

the approach adopted by some states, requiring “a preliminary liability verdict” before

allowing financial discovery, as well as the approach of other states, allowing financial

discovery in the absence of a prima facie showing on punitive damages. Id. at 25-26, 601

P.2d at 737-38. Rather, we determined that a plaintiff must make a prima facie showing

“that he will be entitled to present the issue of punitive damages to the jury before

discovery should be allowed in the financial area,” noting this could be accomplished

“through discovery, by evidentiary means or through an offer of proof.” Id. at 26, 691

P.2d at 738.

¶9             In reaching this conclusion, we noted policy reasons for requiring a prima

facie showing, which included the need to “‘protect[] the defendant from an unwarranted

invasion of privacy and harassment where the plaintiff has merely asserted a claim for

punitive damages.’” Id. at 24, 691 P.2d at 736, quoting Leidholt v. District Court, 619

P.2d 768, 771 (Colo. 1980). The court in Leidholt further explained, “disproportionate

discovery may increase the cost of litigation, harass the opponent, and tend to delay a fair

and just determination of the legal issues.”     619 P.2d at 770; see also Richards v.


                                             6
Superior Court, 150 Cal. Rptr. 77, 80 (Ct. App. 1978) (“Response to discovery seeking

financial information places a severe burden on the responder. As a minimum, there is

the time and expense necessary to the compilation of a complex mass of information

unrelated to the substantive claim involved in the lawsuit . . . .”).

¶10           In our view, although the respondent judge’s order did not require

petitioners to disclose the information to Braillard, it nevertheless required them to find,

compile, and provide their counsel with their financial information, which could be

viewed as more harassing and burdensome to the defendants themselves than any

subsequent disclosure required by their counsel. See Larriva, 143 Ariz. at 24, 691 P.2d at

736; Richards, 150 Cal. Rptr. at 80. We see no reason why the policies we emphasized

in Larriva should not apply here, where the burden imposed on petitioners is essentially

the same, entitling them to the protection we deemed necessary in Larriva.

¶11           In support of a contrary conclusion, Braillard cites several out-of-state and

federal cases in which courts have ordered production of certain evidence for in camera

review. We are not bound, however, by the decisions of the courts of other states,

Ramsey v. Yavapai Family Advocacy Ctr., 225 Ariz. 132, ¶ 32, 235 P.3d 285, 294 (App.

2010), nor those of the federal district courts, Dube v. Likins, 216 Ariz. 406, ¶ 37, 167

P.3d 93, 104 (App. 2007). And in any event, we do not find persuasive the cases on

which Braillard relies here, given the legal and factual circumstances in which they were

decided. Likewise, we reject Braillard’s reliance on decisions of this court allowing for

in camera review of other types of evidence. In those cases, unlike here, in camera


                                               7
review was necessary in relation to the evidence itself—the courts were reviewing the

content of the particular documents at issue to determine whether the information they

contained was relevant or exculpatory. See Blazek v. Superior Court, 177 Ariz. 535, 541,

869 P.2d 509, 515 (App. 1994); State ex rel. Romley v. Superior Court, 172 Ariz. 232,

239, 836 P.2d 445, 452 (App. 1992).

¶12          Additionally, although in Larriva we set forth how a party may make the

requisite prima facie showing that sufficient evidence exists to submit the question of

punitive damages to the trier of fact, we did not expressly direct when that showing

should be made during the course of the litigation. 143 Ariz. 23, 691 P.2d 735. Here, the

respondent judge apparently believed the evidence presented at trial might not be

consistent with counsels’ representations thereof beforehand, and, consequently,

determined he would make his ruling on the prima facie showing during trial. But, in

Leidholt, on which we relied in Larriva, the court explained that the “issue may be

presented to the court . . . when interrogatories are submitted by the plaintiff ” and the

defendant objects, “at a discovery hearing, or at a pretrial conference.” Leidholt, 619

P.2d at 771; cf. Ball v. Prentice, 162 Ariz. 150, 152-53, 781 P.2d 628, 630-31 (App.

1989) (reviewing denial of motion for partial summary judgment “based on the facts in

the record,” and holding “there is sufficient evidence . . . for a jury to infer” what is

“necessary for imposition of punitive damages”). And in Larriva, we stated: “If it

appears from the discovery on the merits that a factual basis for punitive damages exists,

then the plaintiff is permitted to discover the defendant’s financial condition.” 143 Ariz.


                                            8
at 25, 691 P.2d at 737, quoting Breault v. Friedli, 610 S.W.2d 134, 139 (Tenn. Ct. App.

1980). Thus, in Larriva we suggested that a trial court should make its prima facie

determination during the discovery phase of the litigation. We now state expressly that a

court should determine, as soon as is reasonably possible, whether at a discovery hearing

or pretrial conference, if a party has made a prima facie showing in support of punitive

damages, “through discovery, by evidentiary means or through an offer of proof.” Id. at

26, 691 P.2d at 738.

¶13              Lastly, petitioners argue the respondent judge erred when he concluded he

lacked authority to issue an order requiring that “all the financial records be returned

and/or sealed,” because a “trial court does have the authority to issue a protective order.”2

Indeed, in the pretrial discovery context in which the respondent has ruled, Rule 26(c)(1),

Ariz. R. Civ. P., provides that upon good cause shown, a court may make various

protective orders that “justice requires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.”               See also MacMillan v.

Schwartz, 226 Ariz. 584, ¶¶ 32-35, 250 P.3d 1213, 1220-21 (App. 2011) (discussing

comparable Ariz. R. Fam. Law P. 53(A)). Thus, the respondent erred in concluding he

lacked authority to issue a pretrial protective order concerning discovery materials.

¶14              The respondent judge expressed further concern about the presentation of

the financial information at trial, particularly in light of anticipated media coverage of the

trial. He stated: “I’m not sure that there’s any provision that would authorize me to clear


       2
           On review, Braillard takes no position as to the propriety of a protective order.
                                                9
the courtroom when someone talks about their financial circumstances.” To the extent

that petitioners challenge the respondent’s statement, we conclude it would not be

appropriate for us to rule on this issue. It is not clear that the respondent’s statement

constitutes a ruling, thereby making any decision by this court premature and, thus,

merely an advisory opinion. “An advisory opinion is ‘anticipative of troubles which do

not exist; may never exist; and the precise form of which, should they ever arise, we

cannot predict.’” W. Valley View, Inc. v. Maricopa Cnty. Sheriff’s Office, 216 Ariz. 225,

n.6, 165 P.3d 203, 206 n.6 (App. 2007), quoting Velasco v. Mallory, 5 Ariz. App. 406,

410-11, 427 P.2d 540, 544-45 (1967). Because the respondent has not yet determined if

Braillard has made a prima facie showing on punitive damages, it is unclear if such

evidence will be admitted at trial. And it is unclear on the record before us what rulings

the respondent has made in relation to media coverage of the trial. Thus, any decision

from this court on this issue now would merely anticipate troubles that “may never exist.”

Id.

                                       Disposition

¶15           For the foregoing reasons, we conclude the respondent judge abused his

discretion by ordering petitioners to produce their financial information in the absence of

a finding by respondent that Braillard has made a prima facie showing on the issue of

punitive damages, which would warrant submission of that issue to the trier of fact. See

Ariz. R. P. Spec. Actions 3(c) (special action relief appropriate when respondent judge

abuses discretion). The respondent also erred and thereby abused his discretion when he


                                            10
concluded he lacked authority to issue, and therefore denied petitioners’ request for, a

pretrial protective order. See Potter v. Vanderpool, 225 Ariz. 495, ¶ 14, 240 P.3d 1257,

1262 (App. 2010) (court abuses discretion when it commits legal error). Petitioners’

request for special action relief is granted, and the respondent’s order is vacated.

Accordingly, the stay order previously issued by this court is vacated and the respondent

is directed to enter orders consistent with this decision.


                                               /s/ Garye L. Vásquez
                                               GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:


/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




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