       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 05, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D18-256
                         Lower Tribunal No. 11-6237A
                             ________________


         J.B., a Minor, and the Guardian ad Litem Program,
                                   Petitioners,

                                        vs.

              The State of Florida and Carmen Barahona,
                                  Respondents.

      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Nushin G.
Sayfie, Judge.

    Baker & McKenzie LLP, and Angela C. Vigil, for petitioner J.B., a minor;
Thomasina F. Moore (Sanford), for petitioner Guardian ad Litem Program.

      Eugene Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region, and Philip L. Reizenstein, Assistant Regional Counsel, for respondent
Carmen Barahona; Pamela Jo Bondi, Attorney General, and Melissa Roca Shaw
and Brian H. Zack, Assistant Attorneys General, for respondent The State of
Florida.


Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.

      ROTHENBERG, C.J.
        J.B., a minor, and the Guardian ad Litem (“GAL”) (collectively, “the

Petitioners”), petition this Court for a writ of certiorari1 seeking to quash the trial

court’s order compelling the release of J.B.’s mental health records for use by the

Respondent, Carmen Barahona (“Barahona”), in her death penalty trial. Although

the State of Florida took no position in the lower court, it now joins the Petitioners

in seeking quashal of the trial court’s order.

                    FACTS AND PROCEDURAL HISTORY

        This matter arises from the criminal prosecution of J.B.’s adoptive parents,

Barahona and her husband, Jorge Barahona (collectively “the Barahonas”). On, or

about, March 23, 2011, the Barahonas were charged with numerous counts,

including the first degree murder of their adopted child, N.B., and the child abuse

of their adopted child, V.B., who is N.B.’s twin brother.

        Although J.B. lived in the Barahona home with the child victims, J.B. is not

listed as a victim in the indictment. Prior to the charged offenses, N.B., V.B., and

J.B. received psychological treatment at Citrus Health Network (“Citrus”)—a non-

profit community mental health center that serves mentally ill persons and their

families. J.B. continued to receive psychological treatment at Citrus after the death

of N.B. and the abuse of V.B. J.B. was approximately six or seven years old at the

time.

1In the alternative, the Petitioners seek to prohibit the production of J.B.’s mental
health records.

                                           2
        On December 13, 2017, Barahona filed a motion to compel production of

J.B.’s psychological records. In the motion, she contends that J.B. is an eyewitness

to the events in question and may have evidence relevant to her defense.

Importantly, neither the State nor the defense have listed J.B. as a witness. Further,

there has been no attempt to depose J.B. during the seven years that this

prosecution has been pending.       Both J.B. and the GAL opposed Barahona’s

motion.

                          THE TRIAL COURT’S ORDER

        The trial court conducted a hearing on Barahona’s motion on February 7,

2018. At the conclusion of the hearing, the trial court announced that it was going

to grant the motion and order production of the records. The following day, prior

to the issuance of a written order, J.B. filed an emergency motion for a stay. Prior

to addressing J.B.’s motion for a stay, the trial court issued its order on Barahona’s

motion to compel production on February 9, 2018.

        In its order, the trial court made the following findings: (1) J.B. was an

eyewitness to many, if not all, of the events listed in the indictment; (2) the State

and the defense need to review the records in order to adequately prepare for trial;

(3) the need for the information outweighs any possible harm of disclosure; (4) the

court     has been “made generally aware” of       J.B.’s mental and psychological

fragility and, therefore; (5) disclosure of the “potentially relevant” records will



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“potentially safeguard” her from the trauma of a competency hearing, deposition,

and testifying. (emphasis added).       Ultimately, the trial court concluded that

prohibiting disclosure would actually harm J.B. because the parties would then

attempt to depose her and/or subject her to a competency hearing. The trial court

therefore concluded that there was “a legitimate and appropriate interest in the

parties having access to [J.B.’s] mental health treatment record . . . .”

      The order requires production under seal to both the State and the defense

but prohibits disclosure to third parties, except for expert witnesses and legal staff.

Later that same day, the trial court granted J.B.’s emergency motion and stayed the

disclosure pending review by this Court. The instant petition followed.

                                  ANALYSIS

Prohibition

     As a preliminary matter, we address the Petitioners’ request for a writ of

prohibition. Writs of prohibition are narrow in scope, preventative in nature, and

meant to be utilized with great caution. English v. McCrary, 348 So. 2d 293, 296

(Fla. 1977). Such relief may only be granted when a lower court lacks jurisdiction

or is attempting to exceed its jurisdiction. Id. Here, the record is devoid of any

such showing. Therefore, prohibition is not an available remedy to address the

trial court’s discovery order.

Certiorari



                                           4
      Although a writ of certiorari is an extraordinary relief that is granted in very

limited circumstances, see Lee v. Condell, 208 So. 3d 253, 256 (Fla. 3d DCA

2016) (citing Rousso v. Hannon, 146 So. 3d 66, 69 (Fla. 3d DCA 2014)), it is the

proper vehicle to review discovery orders compelling the production of

information that is protected by the statutory psychotherapist-patient privilege

(“the privilege”). Cruz-Govin v. Torres, 29 So. 3d 393, 395 (Fla. 3d DCA 2010).

In order to warrant relief, however, the order must depart from the essential

requirements of law, causing material injury to the petitioner throughout the

remainder of the proceedings below, leaving him/her without an adequate remedy

on appeal. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987),

superseded by statute on other grounds, as stated in Williams v. Oken, 62 So. 3d

1129, 1134 (Fla. 2011). The latter requirements constitute irreparable harm, a

condition precedent to invoking certiorari jurisdiction, which should be considered

first. Lee, 208 So. 3d at 256.

      We conclude that the trial court has departed from the essential requirements

of law by ordering production of J.B.’s mental health records without first finding

that an exception to the privilege applies. Section 90.503, Florida Statutes (2017),

which codifies the privilege, specifically provides as follows:

      (2) A patient has a privilege to refuse to disclose, and to prevent any other
      person from disclosing, confidential communications or records made for
      the purpose of diagnosis or treatment of the patient’s mental or emotional
      condition, including alcoholism and other drug addiction, between the


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      patient and the psychotherapist, or persons who are participating in the
      diagnosis or treatment under the direction of the psychotherapist. This
      privilege includes any diagnosis made, and advice given, by the
      psychotherapist in the course of that relationship.

      In defining the scope of the privilege, section 90.503(4) lists three

exceptions to the privilege: (a) involuntary commitment proceedings; (b) court-

ordered mental examinations; and (c) where the patient raises his or her own

mental condition during the litigation. Importantly, however, the last exception

applies when the patient, not the party seeking the information, places his or her

mental health at issue. Cruz-Govin, 29 So. 3d at 396. In other words, the moving

party cannot “pierce the privilege” by simply lodging a claim that raises an issue

regarding the patient’s mental health. Id. (citing Viveiros v. Cooper, 832 So. 2d

868, 869 (Fla. 4th DCA 2002)).

      Because Barahona seeks to pierce J.B.’s statutory privilege regarding her

psychological records, she has the burden of demonstrating that one or more of the

enumerated exceptions apply. See Brown v. Montanez, 90 So. 3d 982, 986 (Fla.

4th DCA 2012) (holding that the party requesting discovery of privileged

psychotherapist documents carries the burden of proving that an exception

applies).   Barahona, however, has not raised any of the enumerated exceptions,

and none apply here. Because she has failed to raise or prove any exception, J.B.

has the right to prevent disclosure of her records, and thus, the trial court departed




                                          6
from the essential requirements of law by ordering disclosure.           See State v.

Famiglietti, 817 So. 2d 901, 903-04 (Fla. 3d DCA 2002).

      Although, Barahona failed to raise any of the exceptions listed in section

90.503(4), she argues that she is nevertheless entitled to the records under sections

456.057 and 395.3025, Florida Statutes (2017), both of which she claims are

exceptions to section 90.503. The former governs general medical records. The

latter governs patient and personnel records.      Based on our review of sections

395.3025, 456.057, and 90.503, and the relevant case law, we reject this argument.

      First, subparagraph (2) of section 395.3025 explicitly states that section

395.3025 “does not apply to records maintained at any licensed facility the primary

function of which is to provide psychiatric care to its patients, or to records of

treatment for any mental or emotional condition at any other licensed facility . . . .”

(emphasis added). Here, Citrus’ own website describes its primary function as

providing “psychiatric care” to its patients. See http://www.citrushealth.org/about.

Additionally, subparagraph (4) of section 395.3025 provides:

      (4) Patient records are confidential and must not be disclosed without the
      consent of the patient or his or her legal representative, but appropriate
      disclosure may be made without such consent . . .

      (d) In any civil or criminal action, unless otherwise prohibited by law, upon
      the issuance of a subpoena from a court of competent jurisdiction and proper
      notice by the party seeking such records to the patient or his or her legal
      representative.

(emphasis added).


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      Section 456.057, which deals with general medical records, contains similar

language.    Specifically, subparagraph (7)(a) 3. precludes disclosure without a

written authorization, except under certain listed circumstances, including the

following:

      In any civil or criminal action, unless otherwise prohibited by law, upon the
      issuance of a subpoena from a court of competent jurisdiction and proper
      notice to the patient or the patient’s legal representative by the party seeking
      such records.

(emphasis added). The privilege at issue, as codified by section 90.503, is the

otherwise prohibited by law provision that precludes disclosure of J.B.’s

psychological records. Thus, the statutes do not support Barahona’s claim that she

need not establish one of the enumerated exceptions in section 90.503(4) because

she may compel disclosure under sections 395.3025 and 456.057.

      The case law likewise does not support Barahona’s claim. In Famiglietti, the

plurality opinion issued by this Court, sitting en banc, concluded that: (1) there are

only three exceptions to the privilege; (2) the privilege is not qualified in nature;

(3) the privilege is not subject to a balancing test; and (3) due process protections

do not entitle a defendant to pierce the privilege’s protections. Famiglietti, 817 So.

2d at 903-04. We also note that the Fifth District Court of Appeal in State v.

Roberson, 884 So. 2d 976, 980 (Fla. 5th DCA 2004), followed this Court’s

plurality opinion in Famiglietti and rejected, as this Court rejected in its plurality




                                          8
opinion in Famiglietti, the due process balancing test applied by the Fourth District

Court of Appeal in State v. Pinder, 678 So. 2d 410 (Fla. 4th DCA 1996).

      We additionally conclude that, even if the more permissive or qualified test

relied upon by the Fourth District was applied to the instant case, the trial court’s

order would still constitute a clear departure from established law, as Barahona’s

request for disclosure of J.B.’s confidential and privileged psychotherapist-patient

records is exactly the type of fishing expedition that this Court, the United States

Supreme Court, and our sister courts have strongly cautioned against.

      In Jaffee v. Redmond, 518 U.S. 1, 9 (1996), the United States Supreme

Court explained that “psychotherapist-patient privilege is rooted in the imperative

need for confidence and trust” in which “the patient is willing to make a frank and

complete disclosure of facts, emotions, memories, and fears.”         Id. (quotation

omitted). The mere possibility of disclosure may impede development of the

confidential relationship necessary for successful treatment. Id. In making its

findings, the Court emphasized that the protection of these confidential

communications serves important public and private interests. Id. at 11-13.

Significantly, the Court rejected, as the plurality opinion issued by this Court

rejected in Famiglietti, the balancing test Barahona and the trial court suggest are

applicable here. Id. at 17.




                                         9
      In doing so, the Court reasoned that, “[m]aking the promise of

confidentiality contingent upon a trial judge’s later evaluation of the relative

importance of the patient’s interest in privacy and the evidentiary need for

disclosure would eviscerate the effectiveness of the privilege. . . . [I]f the purpose

of the privilege is to be served, the participants in the confidential conversation

must be able to predict with some degree of certainty whether particular

discussions will be protected.’’ Id. at 17 (quoting Upjohn Co. v. United States, 449

U.S. 383, 392 (1981)). In other words, an uncertain privilege, or one which

purports to be certain, but results in widely varying applications by the courts is

little better than no privilege at all. Upjohn, 449 U.S. at 392.

      Here, defense counsel merely argued that the privileged records might

potentially be relevant.     This argument falls short of establishing, within a

reasonable probability, that the records actually contain information necessary to

Barahona’s defense. Again, J.B. is not one of the victims.         The issue of her

competency has not been officially raised by Barahona, and Barahona has not

moved to depose J.B. Further, the State has made clear that it does not intend to

call J.B. as a witness.

      Nevertheless, the trial court reached the conclusion that the disclosure of

these potentially relevant records would potentially safeguard J.B. from a

competency hearing, deposition, and testifying. There is no record evidence that



                                          10
supports such a finding. Whether J.B. would be less traumatized by disclosure of

her confidential psychological records or by being evaluated and potentially being

required to testify is something that has not yet been litigated. The only stated

reason for the request was to determine whether J.B. was competent and to

determine “where to go from there.” Those reasons, without more, are insufficient

to justify piercing the privilege. See e.g., S.P. v. Vecchio, 162 So. 3d 75, 79-80

(Fla. 4th DCA 2014) (quashing a lower court’s order unsealing a child victim’s

mental health records where the defendant’s sole basis for the request was to “see

what had been left out” for purposes of challenging his sentence).       Of equal

importance, Barahona has failed to demonstrate—with any degree of specificity—

just how J.B.’s prior mental health records are relevant to her current level of

competency.

      We also conclude that the improper disclosure of J.B.’s privileged

communications with her mental health providers will result in irreparable harm.

Indeed, Florida courts have consistently and repeatedly held that, absent evidence

of a statutory exception or waiver, a trial court departs from the essential

requirements of law when it enters an order compelling disclosure of

communications or records in violation of the psychotherapist-patient privilege,

and such disclosure results in irreparable harm. See Allstate Ins. Co. v. Langston,

655 So. 2d 91, 94 (Fla. 1995) (concluding that discovery of information protected



                                        11
by a privilege may reasonably cause irreparable harm); see also Flood v. Stumm,

989 So. 2d 1240 (Fla. 4th DCA 2008); LaCaretta Restaurant v. Zepeda, 115 So. 3d

1091, 1092 (Fla. 1st DCA 2013).

                                 CONCLUSION

      The trial court’s order constitutes a departure from the essential

requirements of law that will result in material and irreparable injury. J.B. is not a

party to any proceedings in which a final appealable judgment shall be entered.

Disclosure of any kind, including an in camera inspection, would let the proverbial

cat out of the bag—and generate the same result. See Allstate Ins. Co., 655 So. 2d

at 94. Neither harm can be properly remedied on appeal. Although Barahona’s

case is a death penalty case, that does not, without more, justify piercing the

privilege. Nothing in the case law suggests that the death penalty implication

immunizes Barahona from making the requisite showing of relevance, the

applicability of an exception, and/or the existence of a waiver.

      Accordingly, we grant the petition for writ of certiorari and quash the trial

court’s order granting discovery as to J.B.’s psychological/psychiatric treatment

records.

      Petition granted; order quashed.




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