The Arizona Court of Appeals recently held that in a deposition, a party must answer any relevant, non-harassing question, unless the answer is privileged.1 Attorneys are on notice that sanctions are fair game if they instruct their clients not to answer non-privileged questions in a deposition.
The Discovery Deadlock
Mittelstadt v. Burgess, is a personal injury case that arose out of a car accident. During a deposition, plaintiff’s counsel asked the defendant whether law enforcement had cited the defendant for his driving at the time of the accident.
Defense counsel objected to the question, arguing a traffic citation would be inadmissible to prove negligence at trial. Accordingly, he instructed the defendant not to answer any questions relating to traffic citations. Plaintiff’s counsel disagreed, arguing the defendant was required to answer any relevant question, unless his answers were privileged (i.e. answers that would require the client reveal attorney-client privileged information).
The attorneys were unable to resolve their dispute, but the defendant and his counsel did not terminate the deposition. During the discovery impasse, both parties threatened to file motions for sanctions.
True to their word, both parties moved for sanctions. The trial court sanctioned defense counsel and ordered the defendant to appear for a second, four-hour deposition. Defense counsel sought special action review of that order.
The Court of Appeals’ Opinion
In a published opinion, the Court of Appeals granted defense counsel’s request for special action review and affirmed the trial court’s order.
Application of New Special Action Rules. This case is the first published decision to apply the newly enacted special action rules to an appellate special action. While the case was filed before the new special action rules took effect, the court “exercise[d] its discretion to adopt a caption consistent with the new” rules2 — one that omits the name of the judge as a respondent.3 Though not express, the Court also appeared to have exercised its discretion to also follow new Special Action Rule 18(b) and state the grounds for its decision to accept jurisdiction. With some exceptions, the Court has discretion whether to accept jurisdiction over an appellate special action.4 Here, the Court noted that, for discovery disputes, remedy by appeal is not an “equally plain, adequate, and speedy” remedy because such disputes are not immediately appealable.5 Further, the Court reasoned the “proper defense of a witness at a deposition . . . is a question of statewide importance,” the resolution of which would “materially advance the management” of the case.6 Thus, the circumstances warranted the Court’s exercise of its discretion to accept special action jurisdiction.
Interestingly, the Court limited its special action jurisdiction to only Defense counsel, even though both defendant and his counsel were listed as “petitioners.” The Court reasoned that, because its special action jurisdiction was limited to an “aggrieved party”7 and because the sanctions order was entered only against Defense counsel, the defendant was not an aggrieved party.8
Deposition Objections. The Court concluded that the defendant was required to answer questions regarding traffic citations even if a party argued such evidence was inadmissible at trial. First, evidence of traffic citations was at least admissible for impeachment purposes. More importantly, relevant, nonprivileged evidence is discoverable even if it is inadmissible. Indeed, the Arizona Rules of Civil Procedure expressly state: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim . . . . Information within this scope of discovery need not be admissible in evidence to be discoverable.”9
Additionally, the Court found defense counsel handled his objections inappropriately. Specifically, “instructing a deponent not to answer” a question is allowed “only when necessary to preserve a privilege, to enforce a limit ordered by the court, or to present a motion to terminate or limit discovery.”10 Thus, if defense counsel believed the questioning exceeded the proper scope of discovery, he should have moved to terminate or limit the deposition. Instead, defense counsel did “[t]he one thing [he] could not do,” that is, “selectively instruct his client not to answer without moving to terminate or limit the deposition.”11
Accordingly, the Court of Appeals held the trial court did not err in imposing sanctions and ordering the defendant to appear for another deposition.
Final Thoughts
Ultimately, parties must comply with discovery rules to ensure a smooth case progression and to avoid sanctions. While the court recognized that special action jurisdiction is “extraordinary relief” and may not be “routinely granted in discovery matters,”12 this case sets an important precedent for litigants to rely on in future petitions for special action — especially when such petitions relate to disputes over procedural rules that have the potential to impact the continued administration of a case. Moreover, parties petitioning for appellate special action review should consider the Court’s limitation of jurisdiction and ensure the petitioning party is truly an “aggrieved party.”
Snell & Wilmer’s special litigation and compliance team will continue to monitor rule amendments and caselaw developments.
Footnotes
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Mittelstadt v. Burgess, 2025 WL 52555 (Ariz. Ct. App. Jan. 9, 2025), https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2025/1%20CA-SA%2024-0174%20Mittelstadt%20v.%20Blaney.pdf.
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Id.
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Ariz. R. P. Spec. Act. 5(b)(1).
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Ariz. R. P. Spec. Act. 12(a).
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Mittelstadt v. Burgess, 2025 WL 52555, at *2 ¶ 8 (Ariz. Ct. App. Jan. 9, 2025).
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Id.
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Ariz. R. P. Spec. Act. 5(b)(1)(A).
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Mittelstadt v. Burgess, 2025 WL 52555, at *2 ¶ 9 (Ariz. Ct. App. Jan. 9, 2025).
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Ariz. R. Civ. P. 26(b)(1).
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Mittelstadt v. Burgess, 2025 WL 52555, at *3 ¶ 13 (Ariz. Ct. App. Jan. 9, 2025) (internal quotation mark omitted).
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Id. at *4 ¶ 14.
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Id. at *2 ¶ 8.
