This case holds that the testimonial privilege applies to arbitrations.

In an IME report, Dr. Maric criticized Dr. Yeung’s treatment of a patient. Yeung sued Maric for defamation and false-light invasion of privacy. Maric argued the privilege, Yeung that it didn’t apply because the IME was done not for a lawsuit but for a UM/UIM (the opinion doesn’t say which) arbitration. The trial court granted Maric summary judgment; Yeung appealed.

The court first confirms that the testimony of witnesses is absolutely privileged at trial and deposition, and also in “reports, consultation, or advice” or other “preliminary steps” so long as it has reference to litigation pending or seriously contemplated. The opinion explains why this is a good thing.

Comments in the Restatement say that the privilege applies to tribunals exercising “judicial functions.” The Arizona Supreme Court held (Craviolini, 1961) that private, contractual arbitrators exercise quasi-judicial functions. It therefore applies to UM/UIM arbitrations, which are private and contractual. Certain judicial safeguards must apply but those are ensured by the Uniform Arbitration Act. (By a very short extension of the court’s reasoning, then, the privilege applies to any arbitration governed by the Act, which effectively means all of them.)

The opinion is 14 pages long but that’s about all there is to it. The court briefly addresses a couple of Yeung’s factual arguments and, not quite so briefly, reassures itself that it must be right because other states think so, too. Other than being too long, though, it is clean and well-written.

(Link to opinion)