                                                           FILED
                                                         Jan 11 2012, 8:40 am

FOR PUBLICATION                                                 CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE NON-PARTY
                                              INDIANA BOARD OF PHARMACY:
DARREN BEDWELL
Marion County Public Defender                 GREGORY F. ZOELLER
Appellate Division                            Attorney General of Indiana
Indianapolis, Indiana
                                              KATHY BRADLEY
                                              Deputy Attorney General
                                              Indianapolis, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

NICHOLAS WILLIAMS,                            )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 49A02-1103-CR-266
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


         INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
                  The Honorable Charles A. Wiles, Senior Judge
                       Cause No. 49F08-0906-FD-54517



                                   January 11, 2012


                             OPINION - FOR PUBLICATION


CRONE, Judge
                                        Case Summary

       Nicholas Williams was arrested and charged with possessing the controlled substances

methadone and alprazolam. The existence of a valid prescription is a defense to the crime of

possession of a controlled substance. Because Williams initially could not remember the

names of the doctors who had allegedly prescribed those substances or the pharmacies at

which the prescriptions were allegedly filled, his counsel served a subpoena on the Indiana

Board of Pharmacy (“the Board”), which maintains a computerized database used to monitor

the prescription of controlled substances, requesting a certified copy of “any and all” of

Williams‟s prescription records.

       The Board filed a motion to quash the subpoena, asserting that the requested

information was confidential pursuant to statute and therefore could not be released to

Williams. At a hearing on the motion to quash, Williams testified that he now remembered

the names of the doctors who allegedly had prescribed the methadone and alprazolam but

could not remember where the prescriptions allegedly had been filled. The trial court granted

the Board‟s motion to quash and certified its ruling for interlocutory appeal.

       On appeal, Williams contends that the trial court erred in granting the Board‟s motion

to quash his subpoena, arguing that his prescription records are not privileged, that his

request was sufficiently particular, and that the records are material to his defense. The

Board contends that Williams‟s prescription records may be released only to persons

specified in the applicable statute, that his request is not sufficiently particular, that he could




                                                2
obtain the requested information from his doctors, and that the Board has a paramount

interest in not disclosing that information.

        We conclude that the confidentiality provisions of the applicable statute were enacted

to protect Williams‟s physician-patient privilege and pharmacist-patient privilege and that he

has waived those privileges by requesting his prescription records in the exercise of his

constitutional right to present a complete defense to the charged crimes. We further conclude

that Williams‟s request is sufficiently particular, that the requested information is material to

his defense, that not all the information requested would be available from his doctors, and

that the Board has failed to show a paramount interest in not disclosing the information.

Therefore, we reverse the trial court‟s ruling and remand for further proceedings consistent

with this opinion.

                                    Facts and Procedural History

        According to the probable cause affidavit filed in this case, Indianapolis Metropolitan

Police officers arrested Williams for public intoxication and possession of a controlled

substance on June 8, 2009. The officers found several pill bottles on the floor of Williams‟s

car and a baggie of yellow pills in his pocket. A preliminary laboratory report indicated that

twenty-five pills tested positive for methadone and nine pills tested positive for alprazolam.1

On June 9, 2009, the State charged Williams with two counts of class D felony possession of




        1
           The probable cause affidavit indicates that some of the pills were found in the baggie and some in
the pill bottles in Williams‟s car. See Appellant‟s App. at 21 (“Officer Mauer transported all of the pills found
on Nicholas and in the vehicle to the property room.”).

                                                       3
a controlled substance2 and one count of class B misdemeanor public intoxication. The

possession statute provides that “[a] person who, without a valid prescription or order of a

practitioner acting in the course of the practitioner‟s professional practice, knowingly or

intentionally possesses a controlled substance (pure or adulterated) in schedule I, II, III, or IV

… commits possession of a controlled substance, a Class D felony.” The existence of a valid

prescription for a controlled substance is a defense to the crime of possession which the

defendant has the burden of proving by a preponderance of the evidence. Schuller v. State,

625 N.E.2d 1243, 1246 (Ind. Ct. App. 1993).

        On October 22, 2010, Williams served a request for production of documents by a

non-party and a subpoena duces tecum on INSPECT RX, requesting a certified copy of “any

and all” of his prescription records and listing his date of birth and social security number.

Appellant‟s App. at 44. INSPECT is the Indiana Scheduled Prescription Electronic

Collection and Tracking program, which is administered by the Board pursuant to statute for

the purpose of monitoring the prescription of controlled substances. As part of the INSPECT

program, the Board maintains a computerized database compiled from information that is

required by law to be transmitted by controlled substance prescription dispensers, including a

prescription recipient‟s name, identification number, date of birth, and method of payment

for the controlled substance dispensed; the dates a controlled substance is dispensed, as well

as the quantities and number of days supply; and the United States Drug Enforcement




        2
           The charging information appears to list methadone as a schedule I controlled substance, but it is
actually a schedule II controlled substance. Ind. Code § 35-48-2-6(c).

                                                     4
Agency registration number for both the prescriber and the dispenser of the controlled

substance. Ind. Code §§ 35-48-7-8.1, -10.1.

       On November 18, 2010, the Board filed a motion to quash the subpoena that reads in

pertinent part as follows:

             5. Defendants‟ [sic] Subpoena is improper in that it seeks to force the
       Non-Party to provide information and documentation that is confidential
       pursuant to statute.

               6. Indiana Code section 35-48-7-11.1 provides that the requested
       information and documentation is confidential, and is only available for release
       to certain classes of persons.

              7. The information can be released to persons who are authorized to
       receive, process, or store the information pursuant to Indiana Code section 35-
       48-7-11.1(c).

              8. The information can also be released to personnel who are
       investigating claims against a medical professional regarding the prescribing of
       controlled substances or to a similar body in another state pursuant to Indiana
       Code section 35-48-7-11.1(d).

              9. Defendant has offered nothing to indicate that he belongs to any of
       the classes of persons eligible to receive the confidential information and
       documentation, and, therefore, Defendant‟s Subpoena should be quashed.

Appellant‟s App. at 49.

       On December 2, 2010, the trial court held a hearing on the motion to quash at which

Williams did not appear but was represented by counsel. Defense counsel remarked that “a

good number of clients with mental health diagnoses and treatments and medications don‟t

remember where they‟ve had prescriptions filled so it does frustrate our effort to produce

prescriptions when there‟s a charge of possessing a controlled substance without a valid

prescription.” Tr. at 3-4. Defense counsel then stated his “good faith belief that there will be

                                               5
a valid prescription in that database that [he would] know what doctor and what pharmacy to

particularly subpoena.” Id. at 8. The trial court took the matter under advisement.

        On February 7, 2011, the court held another hearing on the motion to quash at which

Williams appeared and was represented by counsel. Williams testified under oath that he

was able to remember the names of the two doctors who had prescribed the methadone and

alprazolam but was unable to remember the pharmacies at which the prescriptions had been

filled. See id. at 23 (“I don‟t know the exact location but it‟s either Walgreens or CVS.”).

When the trial court suggested that Williams could subpoena the doctors, defense counsel

said,

        [W]ith this one subpoena through the Board of Pharmacy I can obtain the
        doctor and the pharmacy and since those are entered by the doctors and
        pharmacies into that database I would not need to independently subpoena
        them. I would have all of [Williams‟s] records for all medications. There is a
        separate file that the court would note that I did not file the subpoena on yet,
        file ending 976 in which he is charged with another Possession of a Controlled
        Substance as a Class D felony and it would allow me to dispose of both of
        these cases if I had that one prescription record. So it doesn‟t ultimately
        resolve the issue, if I can issue one subpoena then I can take care of multiple
        cases. And it‟s still our position that we‟re entitled to request that information
        by subpoena, by third party subpoena, and that I‟m entitled to it because it‟s
        my client‟s medical records, his own records.

Id. at 24. The trial court summarily granted the Board‟s motion to quash and certified its

ruling for interlocutory appeal. On May 6, 2011, we accepted jurisdiction of this appeal.

                                   Discussion and Decision

        Williams contends that the trial court erred in granting the Board‟s motion to quash

his subpoena. “A trial court has broad discretion with regard to rulings on discovery matters

based upon its duties to promote discovery of the truth and to guide and control the

                                                6
proceedings.” Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App. 2005), trans. denied

(2006). 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.

       Due to the fact-sensitive nature of discovery matters, the trial court‟s ruling is
       cloaked in a strong presumption of correctness on appeal. We may affirm the
       trial court‟s ruling if it is sustainable on any legal basis in the record, even
       though this was not the reason enunciated by the trial court.

Id. (citations and quotation marks omitted).

       In the absence of a conflicting criminal rule, the Indiana Rules of Trial Procedure

generally apply to criminal proceedings. State v. Cline (In re WTHR-TV), 693 N.E.2d 1, 5

(Ind. 1998) (citing Ind. Criminal Rule 21). “Trial Rule 34 enables parties to a lawsuit to

request information or material directly from both parties and non-parties.” Id. The scope of

discovery is governed by Trial Rule 26(B), which reads in pertinent part as follows:

       Parties may obtain discovery regarding any matter, not privileged, which is
       relevant to the subject-matter involved in the pending action, whether it relates
       to the claim or defense of the party seeking discovery or the claim or defense
       of any other party, including the existence, description, nature, custody,
       condition and location of any books, documents, or other tangible things and
       the identity and location of persons having knowledge of any discoverable
       matter. 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.

Ind. Trial Rule 26(B)(1).

       The Indiana Supreme Court has established the following three-part test “for the

discoverability of records by a criminal defendant in certain circumstances”:



                                               7
       (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 “paramount interest”
       in nondisclosure.

In re Crisis Connection, Inc., 949 N.E.2d 789, 794 (Ind. 2011). This test does not apply,

however, “when the question is the discoverability of information that is otherwise

privileged.” Id.

       Indiana Code Section 35-48-7-11.1(a) provides that the information received by the

INSPECT program from controlled substance dispensers is “confidential.” The rest of the

statute reads in relevant part as follows:

              (b) The board shall carry out a program to protect the confidentiality of
       the information described in subsection (a). The board may disclose the
       information to another person only under subsection (c), (d), or (g).

             (c) The board may disclose confidential information described in
       subsection (a) to any person who is authorized to engage in receiving,
       processing, or storing the information.

             (d) Except as provided in subsections (e) and (f), the board may release
       confidential information described in subsection (a) to the following persons:

              (1) A member of the board or another governing body that licenses
              practitioners and is engaged in an investigation, an adjudication, or a
              prosecution of a violation under any state or federal law that involves a
              controlled substance.

              (2) An investigator for the consumer protection division of the office of
              the attorney general, a prosecuting attorney, the attorney general, a
              deputy attorney general, or an investigator from the office of the
              attorney general, who is engaged in:

                      (A) an investigation;

                      (B) an adjudication; or

                                                8
       (C) a prosecution;

of a violation under any state or federal law that involves a controlled
substance.

(3) A law enforcement officer who is an employee of:

       (A) a local, state, or federal law enforcement agency; or

       (B) an entity that regulates controlled substances or enforces
       controlled substances rules or laws in another state;

that is certified to receive information from the INSPECT program.

(4) A practitioner or practitioner‟s agent certified to receive information
from the INSPECT program.

(5) A controlled substance monitoring program in another state with
which Indiana has established an interoperability agreement.

(6) The state toxicologist.

(7) A certified representative of the Medicaid retrospective and
prospective drug utilization review program.

(8) A substance abuse assistance program for a licensed health care
provider who:

       (A) has prescriptive authority under IC 25; and

       (B) is participating in the assistance program.

(e) Information provided to an individual under:

(1) subsection (d)(3) is limited to information:

       (A) concerning an individual or proceeding involving the
       unlawful diversion or misuse of a schedule II, III, IV, or V
       controlled substance; and

       (B) that will assist in an investigation or proceeding; and

                                 9
       (2) subsection (d)(4) may be released only for the purpose of:

              (A) providing medical or pharmaceutical treatment; or

              (B) evaluating the need for providing medical or pharmaceutical
              treatment to a patient.

        (f) Before the board releases confidential information under subsection
(d), the applicant must be approved by the INSPECT program in a manner
prescribed by the board.

       (g) The board may release to:

       (1) a member of the board or another governing body that licenses
       practitioners;

       (2) an investigator for the consumer protection division of the office of
       the attorney general, a prosecuting attorney, the attorney general, a
       deputy attorney general, or an investigator from the office of the
       attorney general; or

       (3) a law enforcement officer who is:

              (A) authorized by the state police department to receive the type
              of information released; and

              (B) approved by the board to receive the type of information
              released;

confidential information generated from computer records that identifies
practitioners who are prescribing or dispensing large quantities of a controlled
substance.

         (h) The information described in subsection (g) may not be released
until it has been reviewed by:

       (1) a member of the board who is licensed in the same profession as the
       prescribing or dispensing practitioner identified by the data; or

       (2) the board‟s designee;


                                       10
        and until that member or the designee has certified that further investigation is
        warranted. However, failure to comply with this subsection does not
        invalidate the use of any evidence that is otherwise admissible in a proceeding
        described in subsection (i).

               (i) An investigator or a law enforcement officer receiving confidential
        information under subsection (c), (d), or (g) may disclose the information to a
        law enforcement officer or an attorney for the office of the attorney general for
        use as evidence in the following:

                 (1) A proceeding under IC 16-42-20.

                 (2) A proceeding under any state or federal law that involves a
                 controlled substance.

                 (3) A criminal proceeding or a proceeding in juvenile court that
                 involves a controlled substance.

Ind. Code § 35-48-7-11.1.

        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. To the extent that the confidential

information in the database might also be considered privileged, by virtue of either the

physician-patient privilege or the pharmacist-patient privilege,3 that privilege inures to the

patient, not the Board (or the physician or the pharmacist, for that matter). Here, Williams‟s


        3
           See, e.g., Ind. Code §§ 34-46-3-1 (“Except as otherwise provided by statute, the following persons
shall not be required to testify regarding the following communications: … (2) Physicians, as to matters
communicated to them by patients, in the course of their professional business, or advice given in such
cases.”), 25-26-13-15 (“(a) A pharmacist shall hold in strictest confidence all prescriptions, drug orders,
records, and patient information. He may divulge such information only when it is in the best interest of the
patient or when requested by the board or its representatives or by a law enforcement officer charged with the
enforcement of laws pertaining to drugs or devices or the practice of pharmacy. (b) A person who has
knowledge by virtue of his office of any prescription drug order, record, or patient information may not divulge
such information except in connection with a criminal prosecution or proceeding or a proceeding before the
board, to which the person to whom the information relates is a party.”).


                                                      11
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. See Collins v. Bair, 256 Ind. 230, 238, 268 N.E.2d 95, 99

(1971) (“a patient waives his physician-patient privilege by pursuing a course of conduct

inconsistent with a continued observance of the privilege”); Ley v. Blose, 698 N.E.2d 381,

384 (Ind. Ct. App. 1998) (noting that physician-patient privilege “is not absolute, and may be

waived by the patient either expressly or by implication”).

       “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.‟” Williams v. State, 819 N.E.2d 381, 385 (Ind. Ct. App. 2004) (quoting

Cline, 693 N.E.2d at 7), trans. denied (2005). 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.

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

Cline, 693 N.E.2d at 7. “[W]hat constitutes reasonable particularity will depend on the facts

of each individual case, the crime charged, the nature of the items sought to be discovered,

the degree of discovery of other items of information, the nature of the defense, etc.” Id. at

6-7 (citation and quotation marks omitted). “[T]he particularity requirement is not to be

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




                                              12
trial discovery and the benefits to the judicial system which flow therefrom.” Crawford v.

State, 948 N.E.2d 1165, 1169 (Ind. 2011) (citation and quotation marks omitted).

       The Board contends that Williams‟s request for “any and all” of his prescription

records is “overly broad.” Appellee‟s Br. at 8. Given that the INSPECT database is

computerized, one would reasonably expect that producing “any and all” of Williams‟s

prescription records would not be especially burdensome. As such, the scope of his request

is not particularly concerning here. The Board also contends that Williams “can obtain the

information regarding any legally obtained prescriptions from the treating physicians in this

matter.” Id. We disagree. As mentioned earlier, 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.

There is no indication that such information would be available from his treating physicians.

       Regarding the second part of the three-part test, “[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.” Cline, 693 N.E.2d at 7 (citation omitted). Here,

the relevance of Williams‟s prescription records is indeed self-evident, in that they would

establish (or at least help to establish) a complete defense to the two possession charges.

       Having concluded that Williams has made a sufficient showing of both particularity

and materiality, we now address whether the Board has shown a paramount interest in the

nondisclosure of Williams‟s prescription records. “Whether a sufficient interest has been

shown to prevent discovery will depend upon the type of interest put forth and the category


                                              13
of information sought. A legitimate interest in keeping the information or items confidential,

for example, may suffice to deny discovery.” Id. (citation and quotation marks omitted).

Here, the Board emphasizes the confidentiality provisions of Indiana Code Section 35-48-7-

11.1 and says,

       The information may only be disclosed to those persons or agencies delineated
       in the statute. Ind. Code § 35-48-7-11.1(b). There is no exception for
       disclosure by the Board to parties not listed in the statute. Moreover, it is a
       criminal offense for anyone to disclose information in violation of the statute.
       Ind. Code § 35-48-7-14.[4]

Appellee‟s Br. at 5.

       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




       4
          See Ind. Code § 35-48-7-14 (“A person who knowingly or intentionally violates this chapter
commits a Class A misdemeanor.”).

                                                14
defense.”) (citations and quotation marks omitted).5 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.

        Reversed and remanded.

BAILEY, J., and MATHIAS, J., concur.




        5
            The Board argues that it

        has been provided with no mechanism by the legislature for disclosing information in the
        INSPECT database directly to a court or third parties not listed in the statute. There is no way
        for the Board to know when it receives a subpoena whether the information being sought is
        indeed related to an individual seeking his own records or the records of a third-party, nor is
        there a blanket exemption for release of the records to a third party if there is a criminal
        proceeding. It places the Board in an untenable and burdensome position of having to
        challenge in the trial courts all subpoenas issued to it where information is sought by a party
        not listed in the statute to ensure that it does not violate the statute and commit a possible
        criminal offense.

Appellee‟s Br. at 7. Williams points out that his subpoena and discovery request are captioned with his name,
and thus “it is apparent from the face of these documents that Williams is seeking his own records and not
those of another person.” Appellant‟s Reply Br. at 3. As for the Board‟s fear of being placed in “an untenable
and burdensome position” by similar subpoenas, we note that the Board could petition the legislature to create
a blanket exemption for release of prescription records to third parties in criminal proceedings (such as the one
applicable to pharmacists under Indiana Code Section 25-26-13-15) and adopt its own rules for handling such
releases. See Ind. Code §§ 35-48-7-12.1(a) (“The board shall adopt rules under IC 4-22-2 to implement this
chapter ….”), -11.1(f) (“Before the board releases confidential information under subsection (d), the applicant
must be approved by the INSPECT program in a manner prescribed by the board.”).

                                                       15
