Arpaio v. Figueroa (CA2 4/30/12)

A significant case about discovery of a defendant’s wealth when punitive damages are alleged.

Plaintiff’s mother died, allegedly as a result of inadequate medical care while in Maricopa County jail. And so, in an action that surely has everything to do with gaining compensation for a grieving daughter and nothing at all to do with politics or publicity, she sued Joe Arpaio and others personally. And, having pleaded punitive damages, she wanted details of all his assets. She admitted that she wasn’t entitled to them before making a prima facie showing but wanted the information sealed and filed with the court so that it would be available as soon as she did so at trial. The trial judge agreed and ordered the defendants to do that. They took this special action.

The Court of Appeals accepted it and grants relief. The opinion is mostly a review of the Larriva case requiring a prima facie showing. Although the information wouldn’t be revealed until after the showing, its compilation, preparation, and filing are themselves burdens that can’t be based on mere allegation. The opinion rejects Plaintiff’s attempt to analogize this to a situation in which information is collected for inspection in camera since in that case it is needed for the court to make a ruling.

The point of the opinion, though, is to say that the court need not wait until trial to rule on whether a showing can be made but should instead do so during discovery or a pretrial conference, “as soon as is reasonably possible,” “through discovery, by evidentiary means or through an offer of proof.”

The court also expressly holds – because this trial judge apparently didn’t think he could do it – that the financial information can be the subject of a protective order. (Apparently the defendants wanted the information sealed and returned after the trial, even if the court allowed the evidence in. The court declines to rule, since the trial judge hadn’t actually done so yet, on whether spectators can be cleared from the courtroom when the financial stuff is presented.)

We don’t know what the court has in mind by including “offer of proof” as a way to judge a prima facie showing. An offer (Rule 103) makes a record, after a ruling, of what a litigant wants to try to prove. An offer made as the evidentiary basis for a trial court ruling is, with all due respect to counsel, little better than an allegation, especially since a punitive allegation is often used to pressure a settlement which, once made, relieves counsel of having to prove what he’s offered.

(link to opinion)