Ex parte D.P.T.

         Geneva Circuit Court, CV-17-900037

          Tracy W. Cary of Morris, Cary, Andrews, Talmadge & Driggers, LLC, Dothan, for petitioner.

          Jennifer M. Busby and Michelle L. McClafferty of Burr & Forman LLP, Birmingham, for respondents American Bankers Insurance of Florida, Inc., and American Collectors Insurance, LLC; and John W. Marsh of Ball, Ball, Mathews & Novak, PA, Montgomery, for respondent.

          Steve Marshall, atty. gen., and Madeline H. Lewis, asst. atty. gen., for respondent William H. Filmore.

         SELLERS, Justice.

         D.P.T. seeks a writ of mandamus directing the Geneva Circuit Court to rescind a discovery order that, D.P.T. asserts, requires him to execute written authorizations allowing the respondents, D.P.T.'s insurers— United States Automobile Association, American Bankers Insurance of Florida, Inc., and American Collectors Insurance, LLC (hereinafter collectively referred to as "the insurers")— to obtain records

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containing communications that he alleges are privileged under the psychotherapist-patient privilege. See § 34-26-2, Ala. Code 1975; Rule 503, Ala. R. Evid. The insurers, however, have represented to this Court that they seek only D.P.T.'s "employment" records. In addition, the trial court itself filed a brief in response to the mandamus petition, which is a somewhat rare occurrence, in which it represented to this Court that it directed D.P.T. to execute an authorization allowing only the release of "employment" records. D.P.T., who, as the petitioner, has the burden of establishing a clear legal right to the issuance of the writ of mandamus, has not demonstrated that his "employment" records contain privileged communications. See Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) (a petitioner for the writ of mandamus must demonstrate, among other things, "a clear legal right to the order sought"). Thus, we deny the petition for the writ of mandamus.

         In July 2015, a vehicle occupied by D.P.T. and his minor stepson was rear-ended by another vehicle. On his own behalf and as next friend of his stepson, D.P.T. sued the driver of the other vehicle. Later, D.P.T. amended his complaint to state a claim against the insurers for underinsured-motorist benefits. D.P.T.'s and his stepson's claims against the driver of the other vehicle involved in the car accident were settled, and the action proceeded against the insurers.

         D.P.T. has asserted that his injuries from the car accident forced him to retire prematurely from the United States Army, which resulted in a loss of income. Accordingly, the insurers sought to obtain records relating to D.P.T.'s military service. D.P.T., however, refused to execute an authorization allowing the Army to produce those records. It is undisputed that D.P.T. has been treated at clinics operated by the Department of Veterans Affairs for post-traumatic stress disorder resulting from his combat experience in Iraq and Afghanistan. The stated basis for his refusal to sign authorizations for the release of his military records is a claim that the records contain confidential communications between him and psychotherapists.

         The insurers filed a motion to compel D.P.T. to sign an authorization for the release of the records, which the trial court granted within minutes of its filing. Subsequently, D.P.T. filed a motion asking the trial court to reconsider its ruling and, later, a motion for a protective order. The trial court denied those motions, and D.P.T. initiated this mandamus proceeding. This Court ordered answers and briefs on the issue whether the records sought are protected by the psychotherapist-patient privilege.

         A writ of mandamus will issue if a trial court exceeds its discretion by ordering the production of records that are privileged. See Ex parte University of South Alabama, 183 So.3d 915, 920 (Ala. 2015). Section 34-26-2, Ala. Code 1975, provides:

"[T]he confidential relations and communications between licensed psychologists, licensed psychiatrists, or licensed psychological technicians and their clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this chapter shall be construed to require any such privileged communication to be disclosed."

         Similarly, Rule 503(b), Ala. R. Evid., provides:

"A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient's mental or emotional condition, including alcohol or drug addiction, among the ...