                                                                       Feb 20 2015, 9:57 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Darren Bedwell                                             NON-PARTY INDIANA BOARD OF
      Marion County Public Defender                              PHARMACY
      Indianapolis, Indiana                                      Gregory F. Zoeller
                                                                 Attorney General of Indiana
                                                                 Dennis E. Mullen
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Angela Lundy,                                             February 20, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1405-CR-307
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Jose Salinas, Judge
                                                                Case No. 49G14-1308-FD-52186
      Appellee-Plaintiff.




      Vaidik, Chief Judge.



                                           Case Summary
[1]   Angela Lundy was charged with Class D felony possession of a controlled

      substance. The existence of a valid prescription is a defense to this crime.


      Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015              Page 1 of 13
      Lundy served a subpoena on non-party Indiana Board of Pharmacy (“the

      Board”), requesting a copy of her INSPECT report. As part of the INSPECT

      program, the Board compiles controlled-substance information into an online

      database.


[2]   The Board filed a motion to quash the subpoena, claiming that the information

      was confidential pursuant to statute. The trial court granted the Board’s motion

      because it found that Lundy had to make a threshold showing that she could

      not get her prescription records elsewhere before she was entitled to her

      INSPECT report from the Board. The trial court certified its ruling for

      interlocutory appeal.


[3]   There is a three-part balancing test for discoverable information in a criminal

      proceeding, but the only consideration at issue here is particularity, which

      requires a showing that the information is not readily available elsewhere. The

      Board argues that because Lundy knew where she could “possibly” obtain her

      prescription records, they were readily available. “Readily available,” however,

      does not equate to knowledge. That is, just because Lundy knew where she

      could “possibly” obtain her prescription records does not mean that they were

      “readily available” to her. In addition, the particularity requirement is not to be

      construed strictly against the defendant but should be administered so as to

      maximize pretrial discovery. Given that the Board does not challenge the other

      parts of the test, we conclude that the trial court abused its discretion in

      granting the Board’s motion to quash Lundy’s subpoena. We therefore reverse

      and remand this case to the trial court.

      Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015   Page 2 of 13
                             Facts and Procedural History
[4]   According to the probable-cause affidavit, on August 8, 2013, Indianapolis

      Metropolitan Police Department officers found a prescription bottle for

      alprazolam (Xanax) in Lundy’s possession. The bottle contained one

      alprazolam pill but ten hydrocodone pills. Lundy was arrested for possession of

      the hydrocodone pills.


[5]   The State charged Lundy with Class D felony possession of a controlled

      substance for possessing hydrocodone—a Schedule II drug—without a valid

      prescription or order of a practitioner acting in the course of the practitioner’s

      professional practice. Ind. Code Ann. § 35-48-4-7 (West 2012); Appellant’s

      App. p. 12. The existence of a valid prescription for a controlled substance is a

      defense to the crime of possession. Williams v. State, 959 N.E.2d 360, 363 (Ind.

      Ct. App. 2012). The defendant bears the burden of proving this defense by a

      preponderance of the evidence. Id.


[6]   On December 3, 2013, Lundy served a request for production of documents by

      a non-party and a subpoena duces tecum on “INSPECT RX.” Appellant’s

      App. p. 35. Specifically, Lundy requested a “certified copy of any and all

      prescription records for Angela Lundy” and gave her date of birth and social-




      Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015   Page 3 of 13
      security number. Id. at 36. At the time of this request, Lundy “knew where she

      could possibly obtain records of her prescription.”1 Id. at 60.


[7]   INSPECT2 is Indiana’s electronic prescription monitoring program, which is

      administered by the Indiana Board of Pharmacy. Williams, 959 N.E.2d at 363.

      It was designed to serve as a tool to address the problem of prescription-drug

      abuse and diversion in Indiana. Indiana Professional Licensing Agency,

      INSPECT Purpose & Goals, IN.gov, http://www.in.gov/pla/inspect/2338.htm

      (last visited Feb. 9, 2015). By compiling controlled-substance information into

      an online database, INSPECT performs two critical functions: (1) maintains a

      warehouse of patient information for health-care professionals and (2) provides

      an important investigative tool for law enforcement. Id. Specifically, the

      INSPECT program maintains a searchable, online database compiled from

      information that is required by law to be transmitted by controlled-substance

      dispensers, including the controlled-substance recipient’s name, identification

      number, date of birth, and method of payment for the controlled substance

      dispensed; the date the controlled substance is dispensed; the quantity and

      number of days’ supply of the controlled substance; and the United States Drug

      Enforcement Agency registration number for both the prescriber and the

      dispenser. Ind. Code §§ 35-48-7-8.1, -10.1. An INSPECT report then




      1
       This information is taken from Lundy’s petition to certify order for interlocutory appeal, filed in the trial
      court in March 2014.
      2
       INSPECT stands for the “Indiana scheduled prescription electronic collection and tracking program.” Ind.
      Code § 35-48-7-5.2.

      Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015                          Page 4 of 13
      summarizes the controlled substances a patient has been prescribed, the

      practitioner who prescribed them, and the dispensing pharmacy where the

      patient obtained them. Indiana Professional Licensing Agency, About

      INSPECT, IN.gov, http://www.in.gov/pla/inspect/2338.htm (last visited Feb.

      9, 2015). The information received is confidential and may be disclosed to only

      certain individuals. Ind. Code § 35-48-7-11.1(d). Notably, the patient is not

      listed as a person who is authorized to receive information from the INSPECT

      database. See Williams, 959 N.E.2d at 367 (“Conspicuously absent from the list

      of persons specifically authorized to receive information from the INSPECT

      database is the person for whom a controlled substance is prescribed and

      dispensed—in other words, the patient.”).


[8]   The Board, represented by an attorney from the Office of the Indiana Attorney

      General, filed a motion to quash Lundy’s subpoena duces tecum on the

      grounds that the requested records were confidential pursuant to statute.

      Appellant’s App. p. 27-32. The trial court held two hearings on the Board’s

      motion to quash. At the first hearing in January 2014, the parties discussed this

      Court’s recent decision in Williams. The trial court ruled that Williams required

      Lundy to make a threshold showing that she could not get her prescription

      records elsewhere before she was entitled to her INSPECT report from the

      Board. Therefore, the court continued the hearing until March 2014 to give

      Lundy an opportunity to make this showing. Defense counsel said that she did

      not want Lundy to testify. Tr. p. 16, 19. In the meantime, the trial court urged

      the parties to resolve the matter on their own. Id. at 28.


      Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015   Page 5 of 13
[9]    At the beginning of the hearing in March 2014, the Board attorney informed the

       trial court that he and defense counsel “were not able to come to an informal

       resolution” so “the Board would ask the Court [to] make a ruling on its Motion

       to Quash.” Id. at 34. Defense counsel did not present any evidence. The trial

       court granted the Board’s motion to quash and certified its ruling for

       interlocutory appeal. In June 2014 we accepted jurisdiction of this appeal.



                                   Discussion and Decision
[10]   Lundy contends that the trial court erred in ruling that she was required to

       make a threshold showing that she could not get her prescription records

       elsewhere before she was entitled to her INSPECT report from the Board.


[11]   A trial court has broad discretion with regard to rulings on discovery matters

       given its duties to promote discovery of the truth and to guide and control the

       proceedings. Williams, 959 N.E.2d at 364-65. Consequently, such rulings will

       be reversed only for an abuse of discretion, which occurs when the trial court’s

       decision is against the logic and effect of the facts and circumstances before the

       court. Id. at 365.


[12]   We addressed this issue in Williams and held that certain defendants who are

       facing charges of possession of a controlled substance are entitled to their

       INSPECT report from the Board. Williams was charged with two counts of

       Class D felony possession of a controlled substance for possessing methadone

       and alprazolam. Williams served a request for production of documents by a


       Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015   Page 6 of 13
       non-party and a subpoena duces tecum on INSPECT. The Board filed a

       motion to quash the subpoena, asserting that the requested information was

       confidential pursuant to statute. At the hearing, Williams testified that he

       remembered the doctors who prescribed him the controlled substances, but he

       could not remember the pharmacies where he got the prescriptions filled. The

       trial court granted the Board’s motion to quash and certified its ruling for

       interlocutory appeal.


[13]   On appeal, in determining whether Williams was entitled to his INSPECT

       report from the Board, we applied the Indiana Supreme Court’s three-part test

       for the discoverability of records by a criminal defendant: (1) there must be

       sufficient designation of the items sought to be discovered (particularity); (2) the

       requested items must be material to the defense (relevance or materiality); and

       (3) if the first two requirements are met, the trial court must grant the request

       unless there is a showing of a “paramount interest” in nondisclosure. Id. (citing

       In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011)). Ultimately, the

       three-part test for discoverable information in a criminal proceeding involves

       balancing the relevance of the material, its availability from other sources, the

       burden of compliance measured in terms of difficulty, and the nature and

       importance of the interests invaded. Id. at 367 (citing In re WTHR, 693 N.E.2d

       1, 7 (Ind. 1998)).


[14]   Although this three-part test does not apply to privileged information, we

       concluded that Williams had waived any privilege:



       Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015   Page 7 of 13
                To the extent that the confidential information in the [INSPECT]
                database might also be considered privileged, by virtue of either the
                physician-patient privilege or the pharmacist-patient privilege, that
                privilege inures to the patient, not the Board (or the physician or the
                pharmacist, for that matter). Here, Williams’s request for information
                from the database regarding his prescriptions amounts to a waiver of
                any privilege, and therefore we conclude that the aforementioned
                three-part test for discoverability applies in this case.
       Id. (footnote omitted).


[15]   Regarding the first part, particularity, “the request must enable the subpoenaed

       party to identify what is sought and allow the trial court to determine whether

       there has been sufficient compliance with the request.” Id. at 367-68 (quotation

       omitted). Particularity also requires a showing that the information is not

       readily available elsewhere. Id. at 368 (citing In re WTHR, 693 N.E.2d at 7).3

       What constitutes reasonable particularity will depend on the facts of each case,

       the crime charged, the nature of the items sought to be discovered, the degree of

       discovery of other items of information, and the nature of the defense. Id.




       3
         In In re WTHR, the Indiana Supreme Court looked to Dillard v. State, 257 Ind. 282, 274 N.E.2d 387, 391
       (1971), for guidance as to criminal discovery. In Dillard, the defendant demanded “a copy of any and all
       inter-office memo, notes, reports . . . of and concerning the robberies, the investigation of defendant herein
       and any and all persons suspected, interrogated and detained in connection therewith.” The Supreme Court
       rejected this as an impermissible “fishing expedition or an attempted rummaging about in the police files
       hoping to turn up something to use at the trial.” Id. at 392-93. In In re WTHR, the Court wrote:
                Although described as the particularity requirement, in reality this test also smuggled in
                the commonsensical elements of a showing that the information is not readily available
                elsewhere (the “degree of discovery of other items of information” in Dillard) and that the
                party seeking it is not engaged in a fishing expedition with no focused idea of the size,
                species, or edibility of the fish.
       693 N.E.2d at 7; see also Crawford v. State, 948 N.E.2d 1165, 1168 (Ind. 2011) (“In general, the particularity
       requirement demands something more precise than give me everything related to the case.” (quotation
       omitted)). Here, Lundy was not on a fishing expedition. Rather, she wanted her INSPECT report so that
       she could review her prescription history for hydrocodone.


       Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015                          Page 8 of 13
       “[T]he particularity requirement is not to be construed strictly against the

       defendant but should be administered so as to maximize pre-trial discovery and

       the benefits to the judicial system which flow therefrom.” Id. (quotation

       omitted).


[16]   The Board argued that Williams’s request for “any and all” of his prescription

       records was overly broad. However, we found that because the INSPECT

       database was computerized, “one would reasonably expect that producing ‘any

       and all’ of Williams’s prescription records would not be especially

       burdensome.” Id. The Board also argued that Williams could obtain

       information about his prescriptions from his treating physicians. However, we

       noted that Williams “could not remember the specific pharmacies that allegedly

       dispensed his prescriptions, and thus obtaining his records from the INSPECT

       database would verify whether those prescriptions were actually dispensed to

       him.” Id. Furthermore, we noted that there was “no indication that such

       information would be available from his treating physicians.” Id.


[17]   Regarding the second part, relevance or materiality, “[a]n item is ‘material’ if it

       appears that it might benefit the preparation of the defendant’s case. The

       relevance of some information or items may be self-evident.” Id. (quotation

       omitted). We found that “the relevance of Williams’s prescription records

       [was] indeed self-evident [because] they would establish (or at least help to

       establish) a complete defense to the two possession charges.” Id.




       Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015   Page 9 of 13
       Because we concluded that Williams had made a sufficient showing of both

       particularity and relevance/materiality, we addressed whether the Board had

       shown a paramount interest in the nondisclosure of Williams’s prescription

       records. We acknowledged that a legitimate interest in keeping the information

       or items confidential may suffice to deny discovery. Id. And the Board

       emphasized the confidentiality provisions of Indiana Code section 35-48-7-11.1,

       which provides that the information may be disclosed to only those persons or

       agencies delineated in the statute, not including the patient. Nevertheless, we

       responded:

               It seems obvious that the confidentiality provisions of Indiana Code
               Section 35-48-7-11.1 were enacted to uphold the protections of the
               physician-patient privilege and the pharmacist-patient privilege.
               Where, as here, a patient seeks to waive those privileges for the
               purpose of exercising his or her constitutional right to present a
               complete defense to charges in a criminal case, both the rationale for
               and the Board’s interest in keeping the patient’s prescription records
               confidential evaporate. See Crane v. Kentucky, 476 U.S. 683, 690 (1986)
               (“Whether rooted directly in the Due Process Clause of the Fourteenth
               Amendment, or in the Compulsory Process or Confrontation clauses
               of the Sixth Amendment, the Constitution guarantees criminal
               defendants a meaningful opportunity to present a complete defense.”)
               (citations and quotation marks omitted). Therefore, we conclude that
               the trial court abused its discretion in granting the Board’s motion to
               quash Williams’s subpoena and reverse and remand for further
               proceedings consistent with this opinion.
       Id. at 368-69.

[18]   Here, the Board does not dispute the INSPECT report’s relevance/materiality,

       which is the second part of the test. Appellee’s Br. p. 6. However, the Board

       argues that this case “substantially differs” from Williams because Williams


       Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015   Page 10 of 13
       “could not recall where his prescriptions were filled, and therefore, his

       prescription records were not available through other sources.” Id. at 7. But

       here, “Lundy has failed to show she is unable to access her prescription records

       through her doctor’s office, pharmacies, or hospitals[.]” Id. The Board points

       out that it was willing to disclose Lundy’s INSPECT report if she was able to

       make a showing that she could not get her records elsewhere, Tr. p. 13, 23;

       however, Lundy “knew where she could possibly obtain records of her

       prescription.” Appellant’s App. p. 60.


[19]   The three-part test involves balancing. See Williams, 959 N.E.2d at 367. As

       such, no one factor is controlling. As for particularity, it requires a showing

       that the information is not readily available elsewhere. Contrary to the Board’s

       argument, “readily available” does not equate to knowledge. That is, just

       because Lundy knew where she could “possibly” obtain her prescription

       records does not mean that they were “readily available” to her. “Readily

       available” would include, for instance, a situation where the defendant had a

       prescription bottle at home and the prescription was valid,4 and therefore there

       was no need for the defendant to request the record for it. But as defense

       counsel argued at the hearing on the Board’s motion to quash, getting Lundy’s

       records would have required “getting the correct medical release, filing the

       medical release, waiting 30 days, [and] paying[.]” Tr. p. 20; see also Appellant’s




       4
        A prescription obtained by fraud, deception, or misrepresentation is not a valid prescription. See Schuller v.
       State, 625 N.E.2d 1243, 1246 (Ind. Ct. App. 1993).

       Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015                       Page 11 of 13
       App. p. 60 (“Defense Counsel argued that the time needed to obtain this

       information via a prescriptions[-]record request from either the hospital or the

       pharmacy would far exceed the mere minutes it would take to obtain this

       information from the online INSPECT database.”). In addition, the

       particularity requirement is not to be construed strictly against the defendant

       but should be administered so as to maximize pretrial discovery. Given that the

       three-part test for discoverable information in a criminal proceeding involves

       balancing, the Board does not challenge the second part of the test—

       relevance/materiality, Lundy only knew where she could “possibly” obtain her

       prescription records, the particularity requirement should be administered to

       maximize pretrial discovery, and Lundy seeks to waive any privilege for the

       purpose of exercising her right to present a complete defense to the charge of

       Class D felony possession of a controlled substance, we hold that Lundy is

       entitled to her INSPECT report from the Board.


[20]   As for the Board’s concern that such a holding “would significantly alter the

       function and purpose of the INSPECT program” by transforming it into a

       “clearing house for any criminal defendant charged with a possession crime to

       obtain his or her prescription records,” Appellee’s Br. p. 7-8, we note that the

       Board’s attorney stated at the hearing that the Board already requires a low

       threshold before it will turn over an INSPECT report: “And just as I’ve said

       before, a really low bar of ‘I simply don’t recall’ I think satisfies and my client

       would comply [by turning over the INSPECT report].” Tr. p. 23. Accordingly,

       the trial court abused its discretion in granting the Board’s motion to quash


       Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015   Page 12 of 13
       Lundy’s subpoena. We therefore reverse and remand this case to the trial

       court.5


[21]   Reversed and remanded.


       Baker, J., and Riley, J., concur.




       5
        Because of this holding, we do not address Lundy’s other arguments, such as the prosecutor should have
       provided Lundy with a copy of her INSPECT report upon request and the Board is not a non-party.

       Court of Appeals of Indiana | Opinion 49A02-1405-CR-307 | February 20, 2015                  Page 13 of 13
