JSH Reporter Fall 2014 - Page 18

IMPLIEDWAIVERARTICLE 018 information about what DOS knew or should have known regarding the easement’s purported abandonment. Finally, the Empire West court held that the policy concern that motivated the court’s decision in Lee was not implicated here. “Unlike State Farm, DOS has not ‘thrust [its] lack of knowledge into the litigation’ as a basis for its claim, while at the same time asserting the privilege so as to frustrate discovery of what it actually knew.” Empire West, 323 P.3d at 1151 (quoting Lee, 199 Ariz. at 58-59, 13 P.3d at 1175-1176). See also Ulibarri v. Superior Court in and for the County of Coconino (Gerstenberger), 184 Ariz. 382, 385, 909 P.2d 449, 452 (App. 1995). Importantly, Lee makes clear that merely seeking the advice of counsel during the claims process is inadequate to support a waiver of the attorney-client privilege. See also Accomazzo v. Kemp, ex rel. County of Maricopa, 34 Ariz. 169, 319 P.3d 231, 234 (App. 2014) (“the bare assertion of a claim or defense does not necessarily place privileged communications at issue in the litigation, and the mere fact that privileged communications would be relevant to the issues before the court is of no consequence to the issue of waiver.”). Aside from Lee, a party seeking attorney-client privileged communications under an implied waiver theory will undoubtedly cite to the Arizona Court of Appeal’s decision in Mendoza v. McDonald’s Corporation, 222 Ariz. 139, 213 P.3d 288 (App. 2009). In Mendoza, a former employee of McDonald’s brought an action against her former employer for breach of the covenant of good faith and fair dealing in administ \