Arizona Court of Appeals Division One holds that a court cannot prohibit the recording of a physical or mental examination under Arizona Rule of Civil Procedure 35.

In a medical malpractice action, the defendants requested that the patient (a minor) undergo a neuropsychological examination under Arizona Rule of Civil Procedure 35.  The patient’s mother asked to have the exam recorded.  The defendants objected, arguing that recording would interfere with the exam.  The superior court agreed with the defendants and ordered the minor patient to undergo an unrecorded examination.

The Court of Appeals accepted special action jurisdiction.  The Court looked to Rule 35(c)(2)(A), which provides that “the court may limit the recording, using the least restrictive means possible” if a party shows that the recording “may adversely affect the examination’s outcome.”  Interpreting the plain text, the Court reasoned that the rule gives a court authority to “limit” recording, but not to prohibit recording entirely.  The Court thus granted relief and remanded for the superior court to determine the “least restrictive means” of limiting the recording’s adverse effects. 

Judge Howe delivered the opinion for the Court, joined by Judge McMurdie and Chief Judge Swann.