          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                   _____________________________

                           No. 1D17-1395
                   _____________________________

MICHAEL H. BROOKS,

     Petitioner,

     v.

EMILY H. BROOKS,

     Respondent.
                   _____________________________


Petition for Writ of Certiorari—Original Proceeding.
Circuit Court of Walton County; Jeffrey E. Lewis, Judge.

                         February 23, 2018


KELSEY, J.

     Petitioner, the husband in a pending dissolution proceeding,
asks us to quash an order allowing Respondent wife to subpoena
husband’s medical, psychotherapist, pharmacy, and employment
records from five non-parties. The order directs that the
documents be provided to husband’s counsel and then to the trial
court for an in-camera inspection to determine what documents
will be furnished to wife. We grant the petition in part and quash
three of the five subpoenas.

I.    FACTS

   The parties lived together from 2005 to 2015, and were
married in 2014. They had a daughter early in 2015. Husband filed
for dissolution that September. The court ordered 50/50
timesharing and equal decision-making authority while the
dissolution was pending.

     Wife claims she left the marital home during the summer of
2015 after husband committed an act of domestic violence against
her. She also claims husband was on disability for parts of 2011,
2012, and 2014 due to emotional instability. Her present concerns
about his mental health stem from his lack of employment and his
alleged angry, expletive-laced tirades when they exchange custody
of their daughter. She does not, however, assert any issues with
husband’s care or parenting of the child.

      Wife notified husband that she intended to subpoena his
medical and personnel files to gather information about his past
mental instability. Her subpoenas sought medical records from
husband’s psychotherapist, a medical facility where he was
treated, and records from 2012 to the present from a pharmacy
where he filled his prescriptions. She sought his entire personnel
file from his 2013–2014 employer, and his application and offer
letter from his 2015–2016 employer.

    Wife argues that husband’s mental health is relevant to child
custody, which is why she is seeking his medical records from his
psychotherapist and the organizations that participated in his
treatment. She also claims that his personnel file from his 2013–
2014 employer may contain parts of his medical record and his
application for disability, also relevant to his mental health. She
asserts that this personnel file could also be relevant to whether
husband is voluntarily underemployed, which could affect his child
support obligation. Finally, she argues that husband’s application
and offer letter from his 2015–2016 employer will be relevant to
establishing his child support obligations because it will contain
salary information.

II.   CERTIORARI STANDARDS

     Certiorari is the proper vehicle for reviewing a discovery
order. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995).
“[R]eview by certiorari is appropriate when a discovery order
departs from the essential requirements of law, causing material

                                 2
injury to a petitioner throughout the remainder of the proceedings
below and effectively leaving no adequate remedy on appeal.” Id.
Because irreparable harm is a jurisdictional threshold for
certiorari review, we must first determine whether a petitioner has
made a prima facie showing that the order will cause such harm.
O’Neill v. O’Neill, 823 So. 2d 837, 839 (Fla. 5th DCA 2002);
Morgan, Colling & Gilbert, P.A. v. Pope, 798 So. 2d 1, 3 (Fla. 2d
DCA 2001). If the petitioner demonstrates irreparable harm, we
proceed to determine whether the order departed from the
essential requirements of law. O’Neill, 823 So. 2d at 839.

     Not all erroneous discovery orders cause irreparable harm,
but irreparable harm can come from discovery of “cat out of the
bag” type information that “could be used to injure another person
or party outside the context of the litigation.” Allstate, 655 So. 2d
at 94. Because personnel files often contain sensitive, personal
information that can be used to harm a party outside the context
of the litigation, the discovery of irrelevant portions of the file can
cause irreparable harm. See Alterra Healthcare Corp. v. Estate of
Shelley, 827 So. 2d 936, 945–46 (Fla. 2002). Therefore, courts
should conduct in-camera inspections of personnel files to separate
relevant information from irrelevant * information, balancing the
“right to privacy with the right to know.” Id.; see Walker v. Ruot,
111 So. 3d 294, 294–96 (Fla. 5th DCA 2013).

     The “[e]rroneous disclosure of medical records [also] qualifies
as irremediable harm.” Zarzaur v. Zarzaur, 213 So. 3d 1115, 1117
(Fla. 1st DCA 2017). A person has the right to prevent the
disclosure of “confidential communications or records made for the
purpose of diagnosis or treatment of the patient’s mental or
emotional condition.” § 90.503(2), Fla. Stat. (2016). In a child
custody dispute, the mental health of the parents is a factor to be
considered, but it does not waive the statutory psychotherapist-
patient privilege. Leonard v. Leonard, 673 So. 2d 97, 99 (Fla. 1st
DCA 1996). Nor can mere allegations of mental or emotional
instability overcome the privilege. Id. A court may deem the

    *“[D]iscovery in civil cases must be relevant to the subject
matter of the case.” Walker v. Ruot, 111 So. 3d at 294, 295 (Fla. 5th
DCA 2013).

                                  3
privilege    involuntarily    waived     only     under     “extreme
circumstances.” Zarzaur, 213 So. 3d at 1119. “In O’Neill, for
instance, an involuntary waiver occurred when the court found the
existence of a ‘calamitous event’ after a mother threatened to kill
herself and her children and then voluntarily committed herself to
a psychiatric ward.” Id. at 1119 (citing O’Neill, 823 So. 2d at 840).

     In Zarzaur, this Court quashed a discovery order requiring
the petitioner to disclose her medical records from the previous
seven years. We concluded the evidence did not establish a
“genuine ‘calamitous event.’” Id. at 1119. We also held in Zarzaur
that the medical records must be relevant to the parent’s present
ability to parent. Id. at 1118–19. This is why “prior mental health
of the parents is rarely relevant or material in a child custody
case.” Bruce G. Borkosky & Mark S. Thomas, Florida’s
Psychotherapist-Patient Privilege in Family Court, Fla. B.J., May
2013, at 35, 35.

     Because the release of privileged and confidential records has
the potential to create irreparable injury, Florida appellate courts
require trial courts to conduct in-camera inspections of such
records before they are released, to prevent improper and
overbroad disclosures. Zarzaur, 213 So. 3d at 1120; Walker, 111
So. 3d at 296; see Alterra, 827 So. 2d at 945–47.

III.   ANALYSIS

     In this case, wife sought the disclosure of several of husband’s
employment and medical records because they might contain
information about his alleged emotional troubles and their relation
to both his periodic unemployment and his present ability to
parent the parties’ child. Wife does not dispute that these records
are privileged or confidential. She only argues that she
demonstrated an adequate need to overcome those privacy
interests. The court did not order direct disclosure of the requested
records, but rather ordered that they be produced for an in-camera
inspection—a requirement that we approve. Zarzaur, 213 So. 3d
at 1120.




                                 4
    A. Medical Records.

     The records of husband’s treating physician, the medical
facility, and the pharmacy fall within the ambit of the statutory
privilege, and that privilege is only waived under the extreme
circumstances described in the case law. Wife has not alleged the
occurrence of a calamitous event that would qualify as the extreme
circumstance necessary to invade husband’s privileged
communications and documents related to the treatment of a
mental health condition. In fact, wife was not aware of a single
problem regarding husband’s care of their child. She only alleged
that he previously committed an act of domestic violence against
her and would curse her out when they met to exchange custody.
Neither of these claims qualifies as the type of extreme condition
that would allow the disclosure of husband’s medical records.

     An in-camera inspection of husband’s medical records would
not cure wife’s failure to establish the extreme circumstances
required to overcome husband’s privilege. The purpose of an in-
camera inspection is to separate discoverable information from
nondiscoverable information where the sensitivity of the
information makes an erroneous disclosure harmful. Here, the
court departed from the essential requirements of the law as it
applies to the subpoenas for medical records, and disclosure of
those records would create irreparable harm. Therefore, we quash
the subpoenas issued to the Crane Center, Publix Pharmacy, and
Tracey Novak.

    B. Personnel Records.

     Florida law cautions against allowing the discovery of entire
personnel files, because of the potential of disclosing irrelevant
information that could cause irreparable harm. Alterra, 827 So. 2d
at 944. Even when releasing only portions of the file, the court
should balance the competing interests in the discovery of the
information. Id. at 945. Given the nature of personnel files, an in-
camera inspection is the best way to balance those interests and
properly tailor the discovery. See id. at 945–46. In light of our
ruling that wife has not demonstrated entitlement to husband’s
past medical records, any disclosure from husband’s personnel
files must be limited to financial information relevant to child

                                 5
support calculations. Because the trial court’s order properly
requires in-camera inspection of husband’s personnel records,
husband has not shown a present departure from the essential
requirements of law as to this part of the order. We therefore deny
the petition as it relates to husband’s personnel records, without
prejudice to husband’s seeking future relief if appropriate after the
trial court reviews the records and determines the scope of
disclosure.

    GRANTED in part and DENIED in part.

LEWIS and M.K. THOMAS, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Daniel W. Uhlfelder and Nicola J. Pappas of Daniel W. Uhlfelder,
P.A., Santa Rosa Beach, for Petitioner.

Clay B. Adkinson of Adkinson Law Firm, LLC, DeFuniak Springs,
for Respondent.




                                 6
