REL: April 7, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2022-2023 _________________________
CL-2023-0017 and CL-2023-0018 _________________________
Ex parte Nathan Joseph Suhy
PETITION FOR WRIT OF MANDAMUS
(In re: Nathan Joseph Suhy
v.
Laila Venable Willard)
(Baldwin Circuit Court, DR-19-900863.02 and DR-19-900863.03)
MOORE, Judge.
Nathan Joseph Suhy ("the father") petitions this court for a writ of
mandamus directing the Baldwin Circuit Court ("the trial court") to
vacate its orders granting, in part, a motion to compel discovery filed by
Laila Venable Willard ("the mother") and denying, in part, the father's CL-2023-0017 and CL-2023-0018
motion for a protective order that was filed in response to the mother's
motion to compel. We deny the father's petition.
Procedural History
The mother and the father were divorced by a judgment entered by
the trial court on January 8, 2020 ("the divorce judgment"), that adopted
an agreement entered into by the parties; that action was assigned case
number DR-19-900863 ("the divorce action"). The father asserts in his
mandamus petition that, pursuant to the divorce judgment, the parties
had shared joint legal custody of their two minor children and the mother
had exercised sole physical custody of the children, subject to the father's
exercise of standard visitation. 1 The father subsequently filed a petition
requesting a modification of the custody award and a finding of contempt
1The father attached the divorce judgment as an exhibit to the mandamus petition; however, the divorce judgment itself, which references the parties' agreement, does not include the terms of that agreement with regard to custody, and the parties' agreement does not appear among the materials attached to the father's mandamus petition before this court. Because the mother does not challenge the father's assertions regarding the award of custody in the divorce judgment, however, we take the father's averments as true. See Ex parte Turner, 840 So. 2d 132, 134-35 (Ala. 2002). 2 CL-2023-0017 and CL-2023-0018
against the mother; that petition, which does not appear in the materials
before this court, was assigned case number DR-19-900863.01 ("the .01
action"). The trial court entered a judgment in the .01 action on January
12, 2021, denying the father's request for sole physical custody of the
children but finding the mother in contempt for having violated certain
provisions of the divorce judgment.
On April 26, 2022, the mother filed a petition in the trial court
requesting that the father's visitation with the children be suspended;
that petition was assigned case number DR-19-900863.02 ("the .02
action"). The mother alleged, among other things, that the father had
not maintained a suitable living environment for the children and that
she believed that the children had been sexually abused while in the
father's care. On May 24, 2022, the father filed a "petition for
modification and contempt" in which he requested, among other things,
that he be awarded sole physical custody of the children, an award of
child support, a finding of contempt against the mother, an award of
attorney's fees, and that the mother be awarded supervised visitation
with the children; the father's petition was assigned case number DR-19-
3 CL-2023-0017 and CL-2023-0018
900863.03 ("the .03 action"). The trial court entered an order on June 3,
2022, consolidating the .02 action and the .03 action.
On November 2, 2022, the mother filed a notice with the trial court,
indicating that she had filed a request for the inspection of the father's
electronic records and devices. A copy of that request was attached to the
notice and states:
"Please produce access to any and all electronic devices within thirty (30) days, for inspection of electronic data stored on any electronic device in possession of the [father] in the above-styled action. This request includes, but is not limited to, any and all laptops, desktops, tablets, cellular telephone and devices, electronic watches, and any other electronic device in the possession and that is used by the [father]."
On November 8, 2022, the mother filed in the trial court a motion to
compel. She asserted that the father's counsel had indicated that the
father did not intend to comply with her discovery request seeking
inspection of the father's electronic records and devices, and she
requested an order compelling the father to respond to her request for
inspection, as well as sanctions in the form of a reasonable attorney's fee.
The father filed a response to the mother's motion to compel on
November 9, 2022. He asserted that his electronic devices "contain
4 CL-2023-0017 and CL-2023-0018
personal and confidential information which should not be viewed by the
... mother or her counsel," that there was "absolutely no probative value
to th[e] [mother's] request," that the mother's request was "a fishing
expedition by which the mother hopes to pry into the father's life," and
that the request was an invasion of privacy that was not relevant to the
issues in the case. On November 21, 2022, the father filed a motion for a
protective order and a supplemental objection to the mother's request for
inspection. He asserted, among other things, that the mother's request
was overly broad, unduly burdensome, and highly prejudicial and that
his devices contain data with confidential and privileged
communications, including communications subject to the attorney-client
privilege or protected under the work-product doctrine. The father
requested a protective order stating that he was not required to turn over
his electronic devices for inspection and examination by the mother
and/or "her representatives, agents, or experts." The father filed, on
November 25, 2022, a motion to stay the entry of an order on the mother's
motion to compel.
5 CL-2023-0017 and CL-2023-0018
On November 29, 2022, the mother filed a response to the father's
motion for a protective order and his supplemental objection to her
discovery request, and, on November 30, 2022, the mother filed a
response to the father's motion to stay. On December 1, 2022, the father
filed a reply to the mother's November 29, 2022, response in which he
reasserted the arguments that he had previously asserted in response to
the mother's motion to compel.
On December 12, 2022, the trial court entered an order granting, in
part, the father's motion for a protective order. That order states, in its
entirety:
"MOTION FOR PROTECTIVE ORDER filed by [the father] is hereby GRANTED IN PART. [The father] may not assert the attorney/client privilege in such a way as to shield entire devices from examination by [the mother's] expert. If [the father] believes that there are emails, documents or other forms of electronically stored information on his devices that are privileged communications or contain privileged information, he must assert the privilege as to those items by filing a motion seeking protection from disclosure. Upon the filing of such a motion the [mother's] expert is stayed from examining those items pending the court's ruling as to the asserted privilege."
(Capitalization in original.)
6 CL-2023-0017 and CL-2023-0018
On December 20, 2022, the trial court entered an order addressing
a number of pending motions, including the mother's motion to compel.
That order provides, in pertinent part, that
"the motion to compel filed by the mother is GRANTED in part and the father shall deliver to the mother's expert, all electronic devices specified in the mother's first request for inspection of electronic records. The mother's expert shall not disclose to the mother or her attorney, (i) confidential military electronic messages related to the father's military employment, (ii) any evidence of communication between the father and his attorney or any files related to those communications and (iii) military issued devices related to the father's employment. The father shall provide his password, pin, or any other information necessary to access these devices to the mother's expert which shall not be shared with the parties or their respective attorneys."
On January 17, 2023, the father filed a petition for the writ of
mandamus with this court.
CL-2023-0018 -- The .03 Action
We first address the father's mandamus petition to the extent it
purportedly challenges orders entered in the .03 action. We note that
each of the filings and orders pertaining to the mother's discovery request
indicate that they were entered in the .02 action. There is no indication
7 CL-2023-0017 and CL-2023-0018
in the materials before this court that those same filings and orders were
entered in the .03 action, and the trial court's orders in the .02 action are
not considered part of the .03 action merely because those actions were
consolidated. See Ex parte Autauga Cnty. Dep't of Hum. Res., [Ms.
2200936, Nov. 5, 2021] ___ So. 3d ___, ___ (Ala. Civ. App. 2021). Because
the father has not presented anything to this court indicating that the
mother's motion to compel, the father's motion for a protective order, or
the trial court's orders in response to those motions were filed or entered
in the .03 action, there is nothing for this court to review in that case.
Accordingly, we deny the father's mandamus petition in CL-2023-0018.
See Ex parte Autauga Cnty. Dep't of Hum. Res., 348 So. 3d 403, 410 (Ala.
Civ. App. 2021) (concluding that the petitioner's failure to include in the
materials submitted to this court any orders entered in an action
required the denial of its petition for the writ of mandamus as to that
action).
CL-2023-0017 -- The .02 Action
With regard to the orders entered in the .02 action, the father
argues in his mandamus petition that his electronic devices contain
8 CL-2023-0017 and CL-2023-0018
various forms of protected material that warrant a protective order
prohibiting those devices from examination; that the mother's discovery
request is "a fishing expedition designed to harass him"; that the
protective order entered by the trial court is insufficient to shield the
mother from obtaining the father's protected information; and that it is
unduly burdensome to require the father to retain his own expert to
create a log of the privileged data that is on his electronic devices. In Ex
parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813-14 (Ala. 2003), our
supreme court outlined the applicable standard of review:
"Mandamus is an extraordinary remedy and will be granted only where there is '(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991). This Court will not issue the writ of mandamus where the petitioner has ' "full and adequate relief" ' by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So. 2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)).
"Discovery matters are within the trial court's sound discretion, and this Court will not reverse a trial court's ruling on a discovery issue unless the trial court has clearly exceeded its discretion. Home Ins. Co. v. Rice, 585 So. 2d 859, 862 (Ala. 1991). Accordingly, mandamus will issue to reverse a trial
9 CL-2023-0017 and CL-2023-0018
court's ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.
"Generally, an appeal of a discovery order is an adequate remedy, notwithstanding the fact that that procedure may delay an appellate court's review of a petitioner's grievance or impose on the petitioner additional expense; our judicial system cannot afford immediate mandamus review of every discovery order. See Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992) ('Mandamus disrupts the trial proceedings, forcing the parties to address in an appellate court issues that otherwise might have been resolved as discovery progressed and the evidence was developed at trial.'). In certain exceptional cases, however, review by appeal of a discovery order may be inadequate, for example, (a) when a privilege is disregarded, see Ex parte Miltope Corp., 823 So. 2d 640, 644- 45 (Ala. 2001) ('If a trial court orders the discovery of trade secrets and such are disclosed, the party resisting discovery will have no adequate remedy on appeal.'); (b) when a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party, see, e.g., Ex parte Compass, 686 So. 2d 1135, 1138 (Ala. 1996) (request for 'every customer file for every variable annuity' including annuity products the plaintiff did not purchase); (c) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party's entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal; or (d) when the trial court
10 CL-2023-0017 and CL-2023-0018
impermissibly prevents the petitioner from making a record on the discovery issue so that the appellate court cannot review the effect of the trial court's alleged error. The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case -- that is, one in which an appeal is not an adequate remedy. See Ex parte Consolidated Publ'g Co., 601 So. 2d 423, 426 (Ala. 1992)."
(Footnote omitted.)
We first address the father's argument that the mother's discovery
request is an impermissible fishing expedition designed to harass him.
The father cites Ex parte Rice, 258 Ala. 132, 138, 61 So. 2d 7, 8 (1952),
and Ex parte Rowell, 248 Ala. 80, 26 So. 2d 554, 557 (1946), both of which
were decided before the adoption the Alabama Rules of Civil Procedure
and both of which include a determination by our supreme court that
interrogatories could not be used in those cases to discover the existence
of a fact then unknown as a basis for allegations necessary to a cause of
action not already alleged in the complaint. In the present case, the scope
of discovery in the trial court is governed by Rule 26(b), Ala. R. Civ. P.,
which provides, in pertinent part:
"(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is: (i) relevant to the subject matter involved in the pending action, whether it relates to
11 CL-2023-0017 and CL-2023-0018
the claim or defense of the party seeking discovery or to the claim or defense of any other party; and (ii) proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
In Zaden v. Elkus, 881 So. 2d 993, 1006 (Ala. 2003), our supreme court
confirmed that discoverable matters that are relevant to the subject
matter of an action have "no immediate status as 'evidence.' " The court
stated, in pertinent part:
"The proper test under Rule 26[, Ala. R. Civ. P.,] is whether the information sought for discovery is 'relevant' within the meaning of that rule. As noted, discovery of certain information is relevant at [the discovery] stage even though that information is not admissible at trial if there is the reasonable possibility that the information will lead to other information that will be admissible as evidence at trial."
881 So. 2d at 1007.
In her petition in the .02 action, the mother asserted, among other
things, that the father had not maintained a suitable living environment
for the children; that the mother believed the children had been sexually
12 CL-2023-0017 and CL-2023-0018
abused while in the father's care, that the parties' oldest child had
disclosed inappropriate behavior toward him by the father, and that the
children had exhibited behavior that caused the mother concern. In her
motion to compel discovery, the mother asserted that her requested
inspection of the father's electronic devices was necessary to discover
whether he was exposing the children to his "potential perverse
fascinations and pornographic [Web sites.] She further asserted that
multiple reports had been made to the Baldwin County Department of
Human Resources regarding the father's abusive behavior toward the
children.
The father does not assert in his mandamus petition that the
mother's discovery request is irrelevant to the allegations made in her
complaint. Rather, he asserts that her claim that the father has exposed
the children to inappropriate materials "exists only in her mind" and that
there has been no mention of that purported conduct in accusations that
she had made to law-enforcement and other law-enforcement related
agencies. "This Court has on many occasions held that the trial courts
have very broad discretion regarding discovery matters under Rule 26,
13 CL-2023-0017 and CL-2023-0018
Ala. R. Civ. P." Hunt v. Windom, 604 So. 2d 395, 397 (Ala. 1992). The
father attaches to his mandamus petition, among other things, notices of
his intent to serve nonparty document subpoenas on agencies to which
the mother has purportedly raised allegations regarding the father's
treatment of the children, including the Daphne Police Department, the
Escambia County Regional Child Advocacy Center, Care House Baldwin
County Child Advocacy Center, the Robertsdale Police Department, the
Fairhope Police Department, and the Alabama Department of Human
Resources. The father asserts, referencing attachments to his
mandamus petition containing records from the Baldwin County
Department of Human Resources and the Escambia County Child
Advocacy Center, that "[i]n all of the shopping around to various police
departments in the hopes an accusation would stick, there has been no
mention of this purported conduct." Even assuming that the records from
two of the six agencies that have purportedly received information
related to the allegations referenced by the mother in her complaint
contain no indication of the allegations sought to be discovered, we cannot
conclude that those records require the denial of the mother's request to
14 CL-2023-0017 and CL-2023-0018
inspect the father's electronic records and devices in its entirety. Because
the trial court could have determined that the mother's discovery request
was relevant to the allegations in her petition and had the potential to
lead to admissible evidence, we do not conclude that the trial court erred
in declining to deny the mother's discovery request as an impermissible
fishing expedition.
We next consider the father's argument that his electronic devices
contain information "that falls within the attorney-client privilege,
spousal privilege, work product, and also personal, private information
related to his work as a military recruiter." With the exception of his
assertion regarding the existence of communications protected by
"spousal privilege," we note that the remaining categories of potentially
privileged information outlined by the father are addressed in the trial
court's December 20, 2022, order. The father cites in support of his
argument that his electronic devices contain communications between
him and his spouse that deserve protection under Rule 504(b), Ala. R.
Evid., which provides, in pertinent part, that "a person has a privilege to
refuse to testify, or to prevent any person from testifying, as to any
15 CL-2023-0017 and CL-2023-0018
confidential communication made by one spouse to the other during the
marriage." He also cites Cooper v. Mann, 273 Ala. 620, 623, 143 So. 2d
637, 639 (1962), which was decided before the adoption of the Alabama
Rules of Civil Procedure, for the proposition that "all private and
confidential communications between husband and wife are privileged
and cannot be divulged by either when on the witness stand." Presently,
Rule 26(b)(6), Ala. R. Civ. P., addresses claims of privilege or protection
of trial-preparation materials and provides, in pertinent part:
"(A) When a party withholds information otherwise discoverable under these rules on a claim that it is privileged or subject to protection as trial-preparation materials, the claim shall be made expressly and, upon written request by any other party, shall be supported by a description of the nature of the documents, communications, or things not produced sufficient to enable the demanding party to contest the claim. This supporting description shall be served within twenty-one (21) days of the date a request is served, unless otherwise ordered."
In the present case, the materials before this court indicate that the
father's only reference to a claim of privileged communications between
him and his spouse occurred in the father's December 1, 2022, reply to
16 CL-2023-0017 and CL-2023-0018
the mother's response to his motion for a protective order in which he
asserted, in pertinent part, that the mother
"is merely on a fishing expedition in which she desires to pry into the personal life of the father with no pending allegation and review confidential attorney client information, trial strategy, marital privilege and communication between the father and his new spouse, electronic trial information conveyed via Internet and other information in a rouse [sic] and a newly alleged POTENTIAL that the children saw pornography."
(Capitalization in original.) We cannot conclude that the father's
assertion in his December 1, 2022, reply satisfied the requirement in Rule
26(b)(6) that any claim regarding privileged information be supported by
a description of the nature of the documents or communications or that
his assertion amounts to a claim of privilege regarding communications
between him and his spouse. Accordingly, we cannot conclude that the
trial court clearly exceeded its discretion in excluding from its protective
order any reference to items purportedly protected by "spousal privilege."
See Ocwen, supra. We note, however, that the trial court's December 12,
2022, order permits the father to file a motion seeking protection from
disclosure of items subject to that privilege.
17 CL-2023-0017 and CL-2023-0018
Regarding the remainder of the information that the father asserts
is protected by an evidentiary privilege or as attorney work product, the
trial court entered a protective order in response to the father's request.
Rule 26(c), Ala. R. Civ. P., which addresses protective orders in response
to discovery requests, allows a trial court to order, among other things,
"that the discovery may be had only on specified terms and conditions,"
"that certain matters not be inquired into or that the scope of the
discovery be limited to certain matters," or "that discovery be conducted
with no one present except persons designated by the court." In
accordance with Rule 26(c), the trial court in the present case directed
that the mother's expert shall not disclose to the mother or her attorney
certain communications, messages, and devices with regard to the
information protected by the attorney-client privilege and other files
related to the father's legal case (e.g., attorney work product) or
information related to the father's employment. In addition to those
limitations, the trial court's December 12, 2022, order allows the father
to assert evidentiary privileges as to specified items and to request a
18 CL-2023-0017 and CL-2023-0018
ruling by the trial court before the mother's expert may proceed with a
review of those additional items.
The father argues that the trial court exceeded its discretion
because its December 12, 2022, order effectively requires him to retain
his own expert to create a log of privileged data on his electronic devices
and, he argues, such a requirement is unduly burdensome. Rule
26(b)(2)(A), Ala. R. Civ. P., provides:
"A party need not provide discovery of electronically stored information from sources that the party identifies to the requesting party as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause for compelling the discovery, considering the limitations of subdivision (b)(2)(B) of this rule. The court may specify conditions for such discovery."
In her answer to the father's mandamus petition, the mother
asserts that the father failed to argue before the trial court that he was
required to retain his own expert to address the mother's discovery
request or that he had presented any indication that such a requirement
19 CL-2023-0017 and CL-2023-0018
would create an undue burden or expense on the father. From all that
appears in the materials before this court, the father failed to make the
necessary showing before the trial court, as required in Rule 26(b)(2)(A),
that allowing the mother to discover the requested information is not
reasonably accessible because of undue burden or cost. Indeed, the father
appears to admit in his December 1, 2022, reply to the mother's answer
that he failed to make "the specific argument that he by himself cannot
discern what data, metadata, and deleted items qualify as confidential,
privileged, or protected." Thus, he appears to concede that he failed to
argue before the trial court that the expense of hiring his own expert
would create an undue burden such that the mother's discovery request
was due to be denied. See Ex parte Ebbers, 871 So. 2d 776, 786 (Ala.
2003) ("In determining, on mandamus review, whether the trial court
exceeded the limits of its discretion, 'the appellate courts will not reverse
the trial court on an issue or contention not presented to the trial court
for its consideration in making its ruling.' Ex parte Wiginton, 743 So. 2d
1071, 1073 (Ala. 1999).").
20 CL-2023-0017 and CL-2023-0018
The father argues, however, that this court may consider his
argument because of the mother's alleged admission in her answer to the
father's mandamus petition that the data sought in her discovery request
may be found only by a forensic expert. The mother states in her answer
that a forensic examination of the father's electronic devices is necessary
because, presumably, any illicit materials on the father's devices are
likely to be hidden or deleted by the father, thereby requiring an expert
to extract those hidden files. We cannot agree with the father that the
mother's statement amounts to an admission that the father can identify
the data sought in the mother's discovery request only by employing a
forensic expert. Moreover, the father admits in his mandamus petition
that the mother had offered to pay for the extraction of data and
metadata from his electronic devices. Accordingly, we cannot conclude
that the father has shown that he will bear any cost, let alone undue cost,
as a result of the mother's discovery request or the limitations and
conditions placed on that request by the trial court such that the trial
court clearly exceeded its discretion. See Ocwen, supra.
21 CL-2023-0017 and CL-2023-0018
The father also challenges the trial court's December 20, 2022,
order. He asserts that, because that order allows the mother's expert to
determine whether the information on his electronic devices is
confidential, privileged, or protected, the trial court's order effectively
appointed the mother's hired expert as a "de facto special master," an
appointment that he asserts was error. There is no indication in the
materials before us, however, that the father presented his argument
that the trial court had erroneously appointed the mother's expert as a
special master to the trial court at any time. Accordingly, we decline to
address that argument. See Ebbers, supra. We acknowledge that the
father argued in his November 21, 2022, motion for a protective order
that the mother's request to allow her expert to search his electronic
devices and to determine whether the data on those devices amounts to
privileged or protected information is "highly and unfairly prejudicial."
The father fails, however, to present any argument or any citation to
authority in support of that assertion in his mandamus petition; instead,
he limits his challenges to the trial court's December 20, 2022, order to
his argument that the mother's expert is disqualified from serving as a
22 CL-2023-0017 and CL-2023-0018
special master. Accordingly, the father has failed to show that the trial
court clearly exceeded its discretion with regard to its December 20, 2022,
order.
Because the father has failed to show a clear legal right to the relief
sought, we deny his petition.
CL-2023-0017 -- PETITION DENIED.
CL-2023-0018 -- PETITION DENIED.
Thompson, P.J., and Hanson and Fridy, JJ., concur.
Edwards, J., concurs in the result, without opinion.