                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               January 18, 2012 Session

    HANNAH ANN CULBERTSON v. RANDALL ERIC CULBERTSON

                   Appeal from the Circuit Court for Shelby County
                    No. CT-005484-10      James F. Russell, Judge


                No. W2011-00860-COA-R10-CV - Filed May 23, 2012


This extraordinary appeal arises from the trial court’s order granting Wife’s motion for
disclosure of Husband’s psychological records. After thorough consideration, we conclude
that the trial court erred by failing to consider Husband’s claims that his psychological
records were protected from disclosure by the psychologist-client privilege, and that he did
not waive the privilege. Accordingly, we vacate the judgment of the trial court and remand
this matter to the trial court for further proceedings.

 Tenn. R. App. P. 10 Extraordinary Appeal by Permission; Judgment of the Circuit
                          Court Vacated and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

Rachael E. Putnam and Jason D. Nowlin, Memphis, Tennessee, for the appellant, Randall
Eric Culbertson.

Amy J. Amundsen and Mary L. Wagner, Memphis, Tennessee, for the appellee, Hannah Ann
Culbertson.

                                        OPINION

                        I. Background and Procedural History

      Randall Eric Culbertson (“Husband”) and Hannah Ann Culbertson (“Wife”) were
married on May 1, 2004. Two minor children were born of the marriage. In July 2010,
however, Husband and Wife separated.

       On November 8, 2010, Wife filed a complaint for divorce in the Circuit Court of
Shelby County.1 In her complaint, Wife alleged numerous instances of physical and
emotional abuse by Husband toward Wife and the parties’ children. In response, on
November 19, 2010, Husband filed an answer and counter-complaint for divorce, wherein
Husband denied Wife’s allegations of abuse and demanded “strict legal proof thereof.” In
his counter-complaint for divorce, Husband sought to be awarded sole decision-making
authority and sole custody of the parties’ children.

      After attending mediation on November 22, 2010, the parties reached an agreement
on temporary matters. On December 3, 2010, the trial court entered a Consent Order on
Temporary Parenting Schedule and Temporary Support (“Consent Order”). The Consent
Order provides, in part, that:

        [Husband] shall continue counseling with Dr. Deason pending his
        commencing therapy with Dr. Russell Crouse, Ph.D. on December 14, 2010
        and Mother shall commence therapy with Dr. Lisa Clark, Ph.D. The parties’
        minor children, and parents, as needed, shall be evaluated by Dr. Jane Clement
        and upon completion of her evaluation, Dr. Clement shall serve as the
        children’s counselor. The parties agree that Dr. Clement has permission to
        speak with the parties’ respective counselors and the parties shall cooperate in
        making the children available for the evaluation and counseling. Dr. Clement
        shall assist the Court and the parties by making recommendations as to the best
        parenting arrangement for the parties and children.

        On February 7, 2011, Wife issued three subpoenas duces tecum, and three notices to
take depositions duces tecum, to three of Husband’s psychologists, specifically, Dr. David
Deason, Dr. Wyatt Nichols, and Dr. Russell Crouse.2 Wife requested that each psychologist
produce “all notes and records for or pertaining to sessions with [Husband], and any test
results and/or data received from the initial therapy session to the present date.” In response,
Husband filed a motion to quash arguing that the information sought by Wife was not
discoverable because it was protected by the psychologist-client privilege under Tennessee
Code Annotated section 63-11-213 (2010). On February 18, 2011, Wife filed a “Motion for
Release of [Husband’s] Psychological Records, to Compel [Husband] to Execute HIPAA
Authorization, and for Qualified Protective Order” (“Motion for Release of Psychological


       1
       Wife also sought and obtained an ex parte order of protection against Husband, which was extended
numerous times throughout the proceedings.
       2
        Husband received treatment from Dr. Nichols throughout 2009 until March 2010, received
treatment from Dr. Deason for several months towards the end of 2010, and was receiving treatment from
Dr. Crouse at the time the subpoenas were issued.

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Records”). Thereafter, Wife filed a response to Husband’s motion to quash, Husband filed
a response to Wife’s Motion for Release of Psychological Records, and each party supported
their respective pleadings with detailed memorandums of law.

        On March 25, 2011, the trial court conducted a hearing on Husband’s motion to quash
and Wife’s Motion for Release of Psychological Records. Husband argued that his
privileged psychological records should not be released because he did not waive the
psychologist-client privilege, the parties agreed in the Consent Order that Dr. Clement would
assist the trial court with psychological evaluations and any recommendations needed to
make the best parenting arrangement, and Wife had access to other readily available
information to support her allegations of Husband’s physical and emotional abuse. Despite
Husband’s arguments, the trial court granted Wife’s Motion for Release of Husband’s
Psychological Records subject to a protective order. In light of this ruling, the trial court
granted Husband’s motion to quash as it related to the depositions of his psychologists
subject to later renewal by Wife.

        Following the hearing, counsel for Wife provided Husband’s counsel with a proposed
order granting her Motion for Release of Psychological Records, as well as a “Qualified
Consent Protective Order as to Psychological Records of [Husband]” (“Qualified Consent
Protective Order”). Husband refused to agree to the entry of the Qualified Consent
Protective Order because he did not consent to the order, and because it provided, in part,
that his psychological records could be disclosed to or discussed with:

       Experts hired by a party to this action for the purpose of giving advice or
       testimony in this action; [and]

       Any person who is noticed for deposition or otherwise subpoenaed to testify
       in this matter; . . . .

Given their refusal to agree on the language of the proposed Qualified Consent Protective
Order, counsel for the parties presented the issue to the trial court. Despite his objections,
the trial court ordered Husband’s counsel to sign the proposed Qualified Consent Protective
Order. On April 4, 2011, the trial court entered the Qualified Consent Protective Order and
an order granting Wife’s Motion for Release of Psychological Records. Subsequently, on
June 20, 2011, this Court granted Husband’s application for extraordinary appeal under Rule
10 of the Tennessee Rules of Appellate Procedure.3


       3
           Rule 10(a) of the Tennessee Rules of Appellate Procedure provides:

                                                                                  (continued...)

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                        II. Issue Presented and Standard of Review

        On appeal, the sole issue for our review is whether the trial court erred in granting
Wife’s Motion for Release of Psychological Records. “Because decisions regarding pretrial
discovery are inherently discretionary, they are reviewed using the ‘abuse of discretion’
standard of review.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)
(citations omitted). A trial court abuses its discretion when it “causes an injustice by
applying an incorrect legal standard, reaches an illogical result, resolves the case on a clearly
erroneous assessment of the evidence, or relies on reasoning that causes an injustice.”
Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011) (citing Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335
(Tenn. 2010)). “When called upon to review a lower court’s discretionary decision, the
reviewing court should review the underlying factual findings using the preponderance of the
evidence standard contained in Tenn. R. App. P. 13(d) and should review the lower court’s
legal determinations de novo without any presumption of correctness.” Lee Medical, 312
S.W.3d at 525 (citing Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn. Ct. App.
2004); Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 212 (Tenn. Ct. App. 2002)).

                                           III. Discussion

       Husband argues that the trial court erred in granting Wife’s Motion for Release of
Psychological Records because his psychological records are protected from discovery by
the psychologist-client privilege under Tennessee Code Annotated section 63-11-213. On
the other hand, Wife argues that the trial court correctly ordered disclosure of Husband’s
psychological records because Husband waived the psychologist-client privilege.

      As recently stated by our supreme court in Powell v. Cmty. Health Sys., Inc., 312
S.W.3d 496 (Tenn. 2010):

       When a discovery dispute involves the application of a privilege, the court's
       judgment should be guided by the following three principles. First,


       3
        (...continued)
       An extraordinary appeal may be sought on application and in the discretion of the appellate
       court alone of interlocutory orders of a lower court from which an appeal lies to the
       Supreme Court, Court of Appeals or Court of Criminal Appeals: (1) if the lower court has
       so far departed from the accepted and usual course of judicial proceedings as to require
       immediate review, or (2) if necessary for complete determination of the action on appeal as
       otherwise provided in these rules. The appellate court may issue whatever order is necessary
       to implement review under this rule.


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       Tennessee's discovery rules favor discovery of all relevant, non-privileged
       information. Second, even though privileges do not facilitate the fact-finding
       process, they are designed to protect interests and relationships that are
       regarded as sufficiently important to justify limitations on discovery. Third,
       while statutory privileges should be fairly construed according to their plain
       meaning, they need not be broadly construed.

Id. at 504 (citing Lee Medical, Inc., 312 S.W.3d at 525). Furthermore, as explained in State
ex rel. Flowers v. Tenn. Trucking Ass’n Self Ins. Group Trust, 209 S.W.3d 602 (Tenn. Ct.
App. 2006):

       To resolve issues pertaining to the discovery of an adversary's claim of . . .
       privilege, the trial court and the parties are to follow sequential steps, which
       entail shifting burdens of proof.

       The party seeking discovery, has the burden to establish (1) that the material
       being sought is relevant to the subject matter involved in the pending action,
       (2) that the material being sought is not otherwise privileged, and (3) that the
       material being sought consists of documents or other tangible things. Once the
       party seeking discovery establishes a prima facie showing that the materials it
       sought were discoverable, the burden shifts to the party opposing discovery to
       show that the materials were . . . privileged . . . .

       If it is established that a portion of the requested documents are [privileged],
       a protective order as to those documents is in order.

Id. at 617-18 (citations omitted).

     Tennessee law recognizes a privilege against compelled disclosure of confidential
communications between a psychologist and client.4 Specifically, Tennessee Code


       4
         In Jaffe v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court explained the purpose
behind the evidentiary privilege between a psychotherapist and patient:

       Effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which
       the patient is willing to make a frank and complete disclosure of facts, emotions, memories,
       and fears. Because of the sensitive nature of the problems for which individuals consult
       psychotherapists, disclosure of confidential communications made during counseling
       sessions may cause embarrassment or disgrace. For this reason, the mere possibility of
       disclosure may impede development of the confidential relationship necessary for successful
                                                                                             (continued...)

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                                                    5
Annotated section 63-11-213 provides that:

        [T]he confidential relations and communications between licensed
        psychologist or, psychological examiner or, senior psychological examiner or
        certified psychological assistant and client 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.

Tenn. Code Ann. § 63-11-213 (2010). As indicated by the language of the statute, our
legislature chose to treat the confidential communications between a psychologist and client
the same as those between an attorney and client. Therefore, although very few Tennessee
appellate courts have had the opportunity to analyze the psychologist-client privilege, cases
discussing the attorney-client privilege are instructive.

        The attorney-client privilege is the oldest privilege recognized in Tennessee both at
common law and by statute. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 212 (Tenn. Ct.
App. 2002) (citations omitted). The privilege “encourages full and frank communication
between attorney and client by sheltering these communications from disclosure.” State ex
rel. Flowers, 209 S.W.3d at 615-16 (citing Tenn. Code Ann. § 23-3-105; Federal Ins. Co.
v. Arthur Anderson & Co., 816 S.W.2d 328, 330 (Tenn. 1991)). The attorney-client
privilege, however, is not absolute, and does not encompass all communications between an
attorney and a client. Id. at 616 (citing Bryan v. State, 848 S.W.2d 72, 80 (Tenn. Crim. App.
1992)). “[W]hether the attorney-client privilege applies to any particular communication is
necessarily question, topic and case specific.” Bryan, 848 S.W.2d at 80. To invoke the
protection of the attorney-client privilege, the burden is on the client to “establish the
communications were made pursuant to the attorney-client relationship and with the intention
that the communications remain confidential.” State ex rel. Flowers, 209 S.W.3d at 616
(citing Bryan, 848 S.W.2d at 80).

        “The [attorney-client] privilege is designed to protect the client and because it belongs
to the client, may be waived by him.” Smith Cnty. Educ. Assoc. v. Anderson, 676 S.W.2d
328, 333 (Tenn.1984). “If a client divulges the communications he seeks to protect, then he


        4
         (...continued)
        treatment.

Id. at 10 (citations omitted) (holding that a psychotherapist-patient privilege existed under federal common
law, based in part on its recognition that “confidentiality is a sine qua non for successful psychiatric
treatment.”).

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has waived the attorney-client privilege with respect to the reported communications and the
attorney may testify to its contents.” State v. Buford, 216 S.W.3d 323, 326 (Tenn. 2007)
(citing Bryan, 848 S.W.2d at 80 (citing Cooper v. United States, 5 F.2d 824 (6th Cir.1925))).
Waiver may also occur when the communications take place in the presence of a third party.
State ex rel. Flowers, 209 S.W.3d at 616 (citing Boyd, 88 S.W.3d at 218-19 (citation
omitted)). Moreover, as explained by the Tennessee Court of Criminal Appeals in Bryan:

       [A] party asserting the attorney-client privilege has impliedly waived it
       through the party’s own affirmative conduct where three conditions exist:

               (1) assertion of the privilege was a result of some affirmative act, such
       as filing suit, by the asserting party;

              (2) through this affirmative act, the asserting party put the protected
              information at issue by making it relevant to the case; and

              (3) application of the privilege would have denied the opposing party
              access to information vital to his [or her] defense.

Bryan, 848 S.W.2d at 81 (citing Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975)).

        Given the unique nature of child custody determinations, a parent’s assertion of the
psychologist-client privilege to prevent access to mental health records presents a more
difficult issue than those raised in other situations involving the privilege. In child custody
cases, the paramount consideration is the best interest of the child. Tenn. Code Ann. § 36-6-
106(a) (2010); Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986). When a custody dispute
arises between legal parents, courts must determine the child’s best interests in light of the
comparative fitness of the parents, In re C.K.G., 173 S.W.3d 714 (Tenn. 2005) (citing Parker
v. Parker, 986 S.W.2d 557, 562 (Tenn. 1999); Bah v. Bah, 668 S.W.2d 663, 665-66 (Tenn.
Ct. App. 1983)), and must consider numerous factors including, where applicable, the
following:

                (1) The love, affection and emotional ties existing between the parents
       . . . and the child;
                (2) The disposition of the parents . . . to provide the child with food,
       clothing, medical care, education and other necessary care and the degree to
       which a parent ... has been the primary caregiver;
                (3) The importance of continuity in the child's life and the length of
       time the child has lived in a stable, satisfactory environment . . . ;
                (4) The stability of the family unit of the parents . . . ;

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                                               7
              (5) The mental and physical health of the parents . . . ;
              (6) The home, school and community record of the child;
              (7)(A) The reasonable preference of the child, if twelve (12) years of
       age or older;
              (B) The court may hear the preference of a younger child on request.
       The preferences of older children should normally be given greater weight than
       those of younger children;
              (8) Evidence of physical or emotional abuse to the child, to the other
       parent or to any other person . . . ;
              (9) The character and behavior of any other person who resides in or
       frequents the home of a parent . . . and the person's interactions with the child;
       and
              (10) Each parent's . . . past and potential for future performance of
       parenting responsibilities, including the willingness and ability of each of the
       parents . . . to facilitate and encourage a close and continuing parent-child
       relationship between the child and both of the child's parents, consistent with
       the best interest of the child.

Tenn. Code Ann. § 36–6–106(a) (Supp. 2011).

       Wife argues that Husband affirmatively placed his mental health at issue, and thus
waived the psychologist-client privilege, by seeking an award of sole custody. Wife further
argues that Husband placed his mental health at issue by demanding that she provide “strict
legal proof thereof” in response to her allegations of physical and emotional abuse. On the
contrary, Husband argues that merely denying Wife’s allegations of mental instability and
abuse, and seeking sole custody of their children, does not automatically waive the
psychologist-patient privilege.

       We agree with Husband that seeking custody does not, by itself, amount to an
automatic waiver of the psychologist-client privilege. We also agree with Husband that
denying allegations of mental instability and abuse, and demanding proof of the same, does
not automatically waive the privilege protection afforded to his psychological records. If this
were the law in Tennessee, there would be no psychologist-client privilege in child custody
cases; a party seeking privileged mental health records could obtain them simply by alleging
the mental instability of his or her adversary. After thoroughly reviewing the record,
however, it appears that the trial court ordered disclosure of Husband’s psychological records
without considering the applicable legal principles governing its discretion.

      At the hearing on March 25, 2011, when ruling on Wife’s Motion for Release of
Psychological Records, the trial court concluded:

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                                               8
       I appreciate the spirit in which this cause is expressed, but I cannot ignore,
       particularly the allegations - the fact of the allegations that are behind, for
       example, the Petition for the Order of Protection. Now, it’s an incident that
       occurred at church and other incidents where the knife apparently - allegedly
       was involved, but for the sake of our discussion, if this gentleman had been
       prone to - I don’t know how to say it any other way than this - but prone to lose
       it in church, of all places, I suppose the possibility exists that he may be
       wrestling with some demons not related even to his relationship with his wife
       and family, but, yet, still would impact upon his own mental health status such
       that that would figure into determination that would be made in terms of the
       parenting relationship - ongoing parenting relationship with these children.

       ....

       . . . . I must say to everyone here that one of my greatest fears is going home
       some day and finding some family that has been through these courtroom
       doors be the late breaking news story that evening and then wonder to myself,
       “Is there something I could have done to have prevented that from happening,”
       or worse yet, “Is it something that I did that caused it to happen?” So I do not
       take any of this lightly.

       ....

       . . . . Where does that leave us, and how do we know that the fear that I have
       would be ill founded in this case without access to his complete psychological
       history? That’s a rhetorical question and also requires a response.

       ....

       Having now explored all of this in great detail, I’m more and more convinced
       that ultimately this Court will be called upon to make a decision or decisions
       that will manifestly take into account the overall state of this gentleman’s
       mental health, and I do not believe that can be done without full evidence. The
       motion to require production of these records is well taken, I now believe, and
       will be granted subject to preparation of an appropriate protective order . . . .

Despite Husband’s arguments, the trial court provided no reasoning as to why Husband’s
psychological records were not protected from discovery by the psychologist-client privilege,
or the extent to which Husband possibly waived the privilege. “[D]iscretionary choices are
not left to a court's inclination, but to its judgment; and its judgment is to be guided by sound

                                               -9-
                                                9
legal principles.” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007) (quoting Martha S.
Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J. App.
Prac. & Process 47, 58 (2000) (citations and internal quotation marks omitted)). An abuse
of discretion may be found “when the trial court has gone outside the framework of legal
standards or statutory limitations, or when it fails to properly consider the factors on that
issue given by the higher courts to guide the discretionary determination.” Id. (quoting 2 J.
App. Prac. & Process at 59) (internal quotation marks omitted)). Although the best interests
of the children remain the focus of the trial court’s concern when making custody
determinations, the importance of the confidential relationship between a psychologist and
client must not go unnoticed. Therefore, we conclude that the trial court erred to the extent
that it ordered disclosure of Husband’s psychological records to Wife without properly
considering the application of the psychologist-client privilege or whether Husband waived
the privilege. We are mindful, however, of the concerns expressed by the trial court for the
best interests of the children in light of the comparative fitness of the parents. Accordingly,
on remand Husband’s psychological records shall be disclosed to the trial court for an in
camera review for the purpose of conducting the comparative fitness analysis. Following
this determination, the trial court shall enter an appropriate order protecting Husband’s
privileged psychological records.

                                      IV. Conclusion

       For the forgoing reasons, we vacate the judgment of the trial court and remand for
further proceedings consistent with this Opinion. Costs of this appeal are taxed to the
Appellee, Hannah Ann Culbertson, for which execution may issue if necessary.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




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