In In re Laura Kay Carlisle v. Thomas G. Moore and Atmore Animal Hospital, LLC, No, 1080038, released June 30, 2009, the Alabama Supreme Court denied the plaintiff’s petition seeking a writ of mandamus directing the trial court to enter a protective order prohibiting discovery of evidence relating to the plaintiff’s sexual history. In so doing, the court provided a glimpse into just how difficult it is to successfully mandamus a discovery order.
The plaintiff in Carlisle alleged various torts stemming from sexual misconduct directed toward her while she was employed at a veterinary clinic. During her deposition, the defendant’s attorney asked a line of questions regarding the plaintiff’s general past sexual contact. The plaintiff sought a protective order, but the trial court denied her motion. The plaintiff then petitioned the Alabama Supreme Court for a writ of mandamus directing the trial court to enter an order prohibiting all discovery of the plaintiff’s sexual history unless such conduct involved the defendant or occurred at the workplace she shared with the defendant.
Not surprisingly, the court denied the petition. In doing so, it held forth at length regarding the standard which must be satisfied before a writ of mandamus regarding a trial court’s discovery order will issue. It stated:
The utilization of a writ of mandamus to compel or prohibit discovery is restricted because of the discretionary nature of a discovery order. The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief. The writ will not issue where the right in question is doubtful.
The court further stated that it employs a two-part standard for reversing a trial court’s discovery ruling in response to a mandamus petition: (1) [whether] there is a showing that the trial court clearly exceeded its discretion, and (2) [whether] the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.
Appellate review of a discovery order by mandamus generally will not be available except in “exceptional cases,” as an appeal is normally adequate to protect a party’s rights. These illustrative exceptional cases include:
(1) when a privilege is disregarded;
(2) when a discovery order compels the production of patently irrelevant or duplicative documents, such as to clearly constitute harassment or impose a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party;
(3) when the trial court either imposes sanctions effectively precluding a decision on the merits or denies discovery going to a party’s entire action or defense so that, in either event, the outcome has been all but determined, and the petitioner would be merely going through the motions of a trial to obtain an appeal; or
(4) when the trial court impermissibly prevents the petitioner from making a record on the discovery issue so that the appellate court cannot review the effect of the trial court’s alleged error.
While this list is not exhaustive, the court indicated that these four are the most common examples. The plaintiff did not argue that the discovery she sought to prohibit fell within one of the four exceptional cases or that one of those categories should be expanded to address deposition testimony of the type sought by the defendant. While she did argue the two part standard, the court found that she failed to satisfy it because she did not demonstrate that the trial court “clearly exceeded its discretion” in allowing the defendant’s counsel to question her regarding her sexual history.
Moreover, while the plaintiff did not argue overlap with the second exceptional case – patently irrelevant material– the court noted that it would not be inclined to find that hers was such because of the nature of her allegations. The court noted that the defendant intends to show that his conduct vis-à-vis the plaintiff, although it occurred in the workplace, was consensual and that the plaintiff’s sexual history is relevant to the level of offense she felt from the acts she alleges he committed. The court could not say that such evidence was “patently irrelevant” under those circumstances.
Nor could the privacy implications relating to discovery of the plaintiff’s past sexual conduct be found to implicate the exceptional case of privilege, as it remained to be seen whether and to what extent that history will have a material bearing on the merits of the claims and issues that the plaintiff herself raised.
Accordingly, the court denied the plaintiff’s petition for writ of mandamus.