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Bibb v. Gama

Court of Appeals of Arizona, First Division, Department A

August 13, 2013

JOHN L. BIBB, M.D., Petitioner,
v.
THE HONORABLE J. RICHARD GAMA, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, SOUTHWEST HEMATOLOGY ONCOLOGY, P.C., an Arizona professional corporation, and JEFFREY D. ISAACS, M.D., Real Parties in Interest.

Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure

Petition for Special Action from the Superior Court in Maricopa County Cause No. CV 2011-012995 The Honorable J. Richard Gama, Judge

Lewis and Roca LLP Phoenix By Randall S. Papetti Kimberly A. Demarchi Georgia Hamann Attorneys for Petitioner

Polsinelli Shughart PC Phoenix By Christopher M. Mason Adam B. Merrill Attorneys for Real Parties in Interest

MEMORANDUM DECISION

KENT E. CATTANI, Judge.

¶1 Dr. John L. Bibb seeks special action review of the superior court's pre-trial discovery order granting Southwest Hematology Oncology, P.C.'s, and Dr. Jeffrey D. Isaacs's (collectively, "SHO") motion to quash Dr. Bibb's subpoenas duces tecum served upon the law firm of Mitchell & Yearin, P.L.C., ("Mitchell & Yearin") and CBIZ Accounting, Tax & Advisory of Phoenix ("CBIZ") . For reasons that follow, we accept special action jurisdiction and grant relief.

FACTS AND PROCEDURAL BACKGROUND [1]

¶2 Dr. Bibb left his medical practice with SHO in November 2012; he is now working at a new oncology practice. Dr. Bibb retained a 16 percent ownership interest in SHO, and he sought to have his shares redeemed pursuant to the terms of his shareholder's agreement with SHO. Dr. Bibb and his former partners have been unable to reach an agreement on the value of his shares, and he filed the pending lawsuit seeking to establish a redemption value.

¶3 This special action arises from a discovery dispute that culminated in the superior court granting SHO's motion to quash subpoenas seeking documentation from Mitchell & Yearin and CBIZ relating to a previous valuation of SHO for a different purpose. In 2010, SHO consulted with Mitchell & Yearin and CBIZ to value SHO's medical practice for a potential sale. CBIZ prepared a draft valuation that valued SHO at $6.6 million, but did not create a final or formal valuation because negotiations ended without a sales agreement. As of the date of Dr. Bibb's departure in 2012, SHO valued itself at just under $1 million.

¶4 In granting SHO's motion to quash, the superior court ruled that SHO had not waived its attorney-client privilege as to information from Mitchell & Yearin and that the accountant-client privilege protects information held by CBIZ to the exclusion of Dr. Bibb's shareholder's right to access SHO's accounting records.

DISCUSSION

¶5 Special action jurisdiction is appropriate when no equally plain, speedy, and adequate remedy is available by appeal. Ariz. R.P. Spec. Act. 1(a); Arpaio v. Figueroa, 229 Ariz. 444, 446, ¶ 5, 276 P.3d 513, 515 (App. 2012). "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." Figueroa, 229 Ariz. at 446, ¶ 5, 276 P.3d at 515 (quoting Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511, ¶ 10, 217 P.3d 1212, 1216 (App. 2009)). Additionally, when the denial of a motion to compel raises important issues of law, exercise of special action jurisdiction is appropriate. See Brown v. Superior Court, 137 Ariz. 327, 330, 670 P.2d 725, 728 (1983) . Because the issues presented in this case satisfy these criteria, we accept special action jurisdiction.

¶6 We review pre-trial discovery rulings for an abuse of discretion; erroneous legal rulings constitute an abuse of discretion. See Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 253-54, 10, 63 P.3d 282, 284-85 (2003).

¶7 Dr. Bibb argues that as a former member of SHO's partnership group, he was then and remains now entitled to the requested information from Mitchell & Yearin and from CBIZ. Because the requested information was never confidential as to Dr. Bibb, we agree.

¶8 The attorney-client privilege, Ariz. Rev. Stat. ("A.R.S.") § 12-2234, and the accountant-client privilege, A.R.S. § 32-749, [2] only apply if the communication at issue is confidential. See, e.g., Samaritan Found. v. Goodfarb, 176 Ariz. 497, 501, 862 P.2d 870, 874 (1993), superseded by statute on other grounds, 1994 Ariz. Sess. Laws, ch. 334, § 1 (2d Reg. Sess.). Here, SHO specifically structured the scope of the attorney-client privilege to protect the information as against third parties, while fully sharing the information within the partnership group. The retainer agreement reads in pertinent part, "All correspondence and communications to and from the firm may be shared between all counsel and/or paraprofessionals for the Firm. All such communication will, however, be considered privileged vis-a-vis third parties outside of the partnership group." All three partners of the practice, including Dr. Bibb, signed the Mitchell & Yearin engagement letter on behalf of SHO.

¶9 Dr. Bibb is not just a former member of SHO's partner group, he is also an owner who paid a pro-rata share of Mitchell & Yearin's and CBIZ's fees and was responsible for meeting with SHO's legal counsel and accountants as part of his regular duties. Dr. Bibb was entitled to the information from the 2010 valuation when it was prepared, and there is no reasoned basis for precluding him from now reviewing documentation he was entitled to review and consider as a partner and shareholder in SHO. Therefore, we conclude that the superior court erred by granting SHO's motion to quash Dr. Bibb's subpoenas seeking Mitchell & Yearin's and CBIZ's documents relating to the 2010 valuation.

¶10 SHO seeks leave to file an application for attorney's fees and a statement of costs. As SHO is not the prevailing party in this special action, we deny its request for attorney's fees and costs.

CONCLUSION

¶11 We accept jurisdiction, grant relief, and direct the superior court to issue appropriate discovery orders consistent with this decision.

CONCURRING: JON W. THOMPSON, Presiding Judge, JOHN C. GEMMILL, Judge.


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