## Facts

- During surgery at Phoenix Children’s Hospital (within a Samaritan medical complex), a child’s heart stopped, leading to anticipated litigation.
- Samaritan’s in-house legal department initiated an internal investigation.
- A nurse-paralegal, acting for corporate counsel, interviewed three nurses and a scrub technician who were present during the surgery.
- The employees signed forms acknowledging representation by Samaritan’s legal department regarding the incident.
- The paralegal prepared memoranda summarizing each interview and delivered them to in-house counsel.
- The child’s family later sued Phoenix Children’s, Samaritan-related entities, and the surgeon(s) for medical malpractice.
- In discovery, plaintiffs sought the interview memoranda; by deposition, the interviewed employees could not recall the incident, increasing the importance of the contemporaneous summaries.
- The trial court conducted an in camera review and ordered production of redacted memoranda, withholding attorney mental impressions and legal theories while disclosing factual witness-statement portions.

## Issues

1. Under Arizona law, when are communications between corporate counsel (or counsel’s agent) and non-management employees protected by the attorney-client privilege?
2. Whether the interview memoranda were protected work product, and if so, whether plaintiffs could obtain the factual portions upon showing substantial need and inability to obtain the substantial equivalent without undue hardship.

## Decision

- The Arizona Supreme Court rejected both a strict “control group” privilege test and an automatic privilege for all employee-to-counsel communications.
- The Court adopted a functional test limiting corporate attorney-client privilege to communications made to secure legal advice for the corporation that concern the employee’s own conduct within the scope of employment.
- Applying that test, the Court held the interview memoranda were not protected by the attorney-client privilege because the nurses and technician acted primarily as fact witnesses recounting what they observed, not as employees seeking legal advice about their own conduct.
- The Court held the memoranda were prepared in anticipation of litigation and therefore qualified as work product.
- The Court approved disclosure of factual work product portions upon a sufficient showing of substantial need and undue hardship, while protecting opinion work product through redaction.
- The Court upheld the trial court’s in camera redaction-and-production approach and permitted production of the factual portions of the memoranda.

## Legal Principles

- Corporate attorney-client privilege in Arizona does not turn solely on employee rank; it depends on the purpose and content of the communication.
- A corporate employee’s communication is privileged only when it is confidential, made to counsel (or counsel’s agent) to obtain legal advice for the corporation, and concerns the employee’s own conduct within the scope of employment.
- Witness-style factual recitations gathered to reconstruct events, without a counseling purpose tied to the employee’s own conduct, are not privileged merely because they are collected by counsel or labeled as representation.
- Work product prepared in anticipation of litigation is protected, but factual work product may be discovered upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship.
- Opinion work product (mental impressions, legal theories, strategy) receives near-absolute protection and should be withheld through redaction or similar measures.

## Conclusion

The court limited corporate attorney-client privilege for internal employee interviews to communications aimed at legal advice about the employee’s own on-the-job conduct, held the witness-interview summaries not privileged on the facts presented, and allowed discovery of the factual portions as work product because plaintiffs showed substantial need and undue hardship, while preserving opinion material through redaction.


Samaritan Found. v. Goodfarb, 176 Ariz. 497, 862 P.2d 870 (Ariz. 1993)