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 \