Two privilege-related questions arise when an out-of-state subpoena requests production of putatively privileged information: (1) which state’s privilege law applies? and (2) which court—the home-state court or the foreign-state court—decides the issue? In a split decision, with a well reasoned dissent, on a matter of first impression, the Arizona Court of Appeals ruled that the foreign-state court decides the privilege issue under foreign-state law. Johnson v. O’Connor, 2014 WL 2557700 (Ariz. Ct. App. June 6, 2014). You may access the opinion here.
A Wisconsin criminal court issued a certification pursuant to the Uniform Act to Secure Attendance of Witnesses From Without a State in Criminal Proceedings (Uniform Act) asking an Arizona state court to subpoena psychological records from Arizona-based Psychological Counseling Services, Ltd for use in the Wisconsin criminal trial. PSC claimed that the Arizona psychologist–patient privilege protected the records from disclosure, but the Arizona trial court refused to decide the objection, ruling that the requesting state should resolve “matters of professional privileges.”
The issue on appeal was whether the trial court should have considered PCS’s privilege objections under Arizona law before requiring PCS to produce the records. In a 2 to 1 decision, the majority interpreted the Uniform Act as requiring the Wisconsin state court—where the criminal proceeding was pending—to decide the privilege issue under Wisconsin law.
The appellate court held that the Arizona Supreme Court case of Tracy v. Superior Court, 810 P.2d 1030 (Ariz. 1991), controlled, but offered other reasons for its decision: (1) the decision furthers the Uniform Act’s purposes because allowing the foreign state to rule on privilege issues reduces procedural hurdles and increases cooperation among the states; and (2) the decision is consistent with the Restatement (Second) of Conflict of Laws § 139(2), which provides that the foreign state’s privilege law decides the issue rather than the state with the most significant relationship.
The dissent took issue with the majority’s reasoning, stating that “communications that take place in Arizona are subject to Arizona law, and Arizona courts should apply that law before ordering the release of privileged or confidential documents for use in a prosecution in another jurisdiction.” The dissent distinguished the Tracy decision, which did not address the production of privileged records.
The dissent viewed the question as: “does the law of the state in which the communications took place govern whether the communications are privileged or confidential, and if so, which state should determine how to apply that law?” The dissent answered that the “site of the communication is dispositive” and requires that the law of the jurisdiction in which the communication occurred controls the privilege issue. It therefore flows that, “because the law of the jurisdiction where the communications took place governs, courts from that jurisdiction are best situated to address whether the communications are privileged.”
The dissent argued that leaving the privilege analysis to another jurisdiction would lead to inconsistent interpretations and applications of the home-state’s privilege law. And allowing a foreign jurisdiction to decide Arizona privilege law places Arizona patients and treating professionals in an untenable position in which there is uncertainty as to what types of communications the psychologist–patient privilege protects from disclosure.
This case highlights the split of authority on conflict-of-privilege-law issues for out-of-state subpoenas. Some states reserve the issue to the home state while others defer to the foreign state. The Johnson dissent, though, has the better reasoned argument, particularly with the majority’s questionable reliance on the Restatement provision. Many commentators are critical of this provision, as you can see in this article and my post highlighting an in-depth review of the provision. In short, this case adds to the uncertainty, and the issue needs further development.