Ex parte D.P.T.

          Geneva Circuit Court, CV-17-900037

          PETITION FOR WRIT OF MANDAMUS

          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 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 patient, the patient's psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family."

Although this Court has acknowledged exceptions to the psychotherapist-patient privilege, none of those exceptions would apply in the present case. See Ex parte West Mental Health Ctr., 884 So.2d 835, 840 (Ala. 2003) (recognizing five exceptions to the psychotherapist-patient privilege--where the mental state of a parent in a child-custody matter is at issue, where a defendant in a criminal trial raises an insanity defense, where the communications are relevant in proceedings seeking to hospitalize a patient for mental illness, where the communications are made during a court-ordered examination of the mental condition of a party or witness, and where it is alleged that there has been a breach of duty arising out of the psychotherapist-patient relationship).

         In their response to D.P.T.'s mandamus petition, the insurers assert that "[t]he trial court ordered [D.P.T.] to execute an authorization for the release of employment records" only and that, therefore, the trial court "did not [exceed] its discretion by ordering discovery without an accommodation for the psychotherapist-patient privilege." In its brief in response to D.P.T.'s mandamus petition, consistent with the insurers' position, the trial court states that its discovery order "does not provide for the discovery of all [D.P.T.'s] military records" because "the records to be released are exclusively [D.P.T.'s] employment records."

         To be sure, as D.P.T. points out, the insurers' motion to compel referenced more than just employment records. It specifically mentioned the alleged relevance of D.P.T.'s employment, retirement, and medical records and asked for an order directing D.P.T. to "sign all authorizations required for the disclos[ure] of these records." The trial court granted the insurers' motion without any expressed limitations. That said, in support of the motion to compel, the insurers submitted correspondence from their counsel to D.P.T.'s counsel, which requested that D.P.T. execute an authorization that identified only "employment" records as the "items [D.P.T. is] requesting [to be released from the Army]." A box that is specifically titled "medical records" on the authorization D.P.T. was asked to sign was not checked. As noted, the insurers have expressly represented to this Court that they sought only "employment" records, and the trial court has represented that it intended only to order D.P.T. to sign the authorization the insurers provided him and that was submitted with the motion to compel. Based on the materials before us, including the insurers' and the trial court's representations, we conclude that D.P.T. was asked to execute only the release ...