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ARIZONABill Sowders, Esq.RENAUD COOK DRURY MESAROS, PAOne North Central, Ste. 900Phoenix, Arizona 85004Phone: (602) 307-9900www.rcdmlaw.combsowders@rcdmlaw.com1. Does your state recognize an exemption from discovery (or a privilege) forpre-suit investigation materials? Is there a key to preserving thisexemption/privilege (i.e. involvement of counsel)?Arizona does not generally provide an exception from discovery for investigationmaterials of this type. It is important to note that Arizona courts recognize that “there isno work product immunity for documents prepared in the regular course of businessrather than for purposes of litigation.” Brown v. Superior Court in and For MaricopaCounty, 137 Ariz. 327, 333, 670 P.2d 725, 731 (Ariz. 1983). The Brown Court did notethat materials reflecting the mental impressions, conclusions, opinions, or legal theoriesof an attorney or other representative of a party are entitled to additional protection andcan be discovered not only by showing substantial need but also “where the materialsought to be discovered is central to a party’s claim or defense.” Brown, 137 Ariz. at338, 670 P.2d at 736. The best way to avoid having to produce such investigationmaterials is to rely upon the attorney client privilege. In Salvation Army v. Bryson, 229Ariz. 204, 273 P.3d 656 (App. 2012), the Court of Appeals held that redactedsummaries of defendant’s employees’ interviews completed by a private investigator atthe direction of counsel for the defendant were subject to the attorney client privilege.However, this decision does not preclude the production of interviews of nonemployees.2. What is your state’s rule with regard to the discoverability of written orrecorded statements taken during investigation of an incident?Pre-suit written or recorded statements are often held to be discoverable. Persons whomake the statements are entitled to discover his/her own statement. Klaiber v. Orzel,148 Ariz. 320, 323, 714 P.2d 813, 816 (Ariz. 1986). Statements of an insured to his/herinsurer are generally discoverable.. State Farm Co. v. Roberts 99 Ariz. 169, 368 P.2d617 (Ariz. 1965). Further, Arizona Courts have recognized that statements “givenshortly after an occurrence are unique and can never be duplicated precisely.” Butler v.Doyle, 112 Ariz. 522, 544 P.2d 204 (Ariz. 1975).To protect against disclosure, the safest way to proceed is for its counsel of his/her staffto initially interview a witness and only make notes of the conversation. If the witness isfavorable, a statement can then be taken without as much downside risk.