Ex parte Nathan Joseph Suhy PETITION FOR WRIT OF MANDAMUS

REL: April 7, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________

CL-2023-0017 and CL-2023-0018
_________________________

Ex parte Nathan Joseph Suhy

PETITION FOR WRIT OF MANDAMUS

(In re: Nathan Joseph Suhy

v.

Laila Venable Willard)

(Baldwin Circuit Court, DR-19-900863.02 and DR-19-900863.03)

MOORE, Judge.

Nathan Joseph Suhy ("the father") petitions this court for a writ of

mandamus directing the Baldwin Circuit Court ("the trial court") to

vacate its orders granting, in part, a motion to compel discovery filed by

Laila Venable Willard ("the mother") and denying, in part, the father's
CL-2023-0017 and CL-2023-0018

motion for a protective order that was filed in response to the mother's

motion to compel. We deny the father's petition.

Procedural History

The mother and the father were divorced by a judgment entered by

the trial court on January 8, 2020 ("the divorce judgment"), that adopted

an agreement entered into by the parties; that action was assigned case

number DR-19-900863 ("the divorce action"). The father asserts in his

mandamus petition that, pursuant to the divorce judgment, the parties

had shared joint legal custody of their two minor children and the mother

had exercised sole physical custody of the children, subject to the father's

exercise of standard visitation. 1 The father subsequently filed a petition

requesting a modification of the custody award and a finding of contempt

1The father attached the divorce judgment as an exhibit to the
mandamus petition; however, the divorce judgment itself, which
references the parties' agreement, does not include the terms of that
agreement with regard to custody, and the parties' agreement does not
appear among the materials attached to the father's mandamus petition
before this court. Because the mother does not challenge the father's
assertions regarding the award of custody in the divorce judgment,
however, we take the father's averments as true. See Ex parte Turner,
840 So. 2d 132, 134-35 (Ala. 2002).
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against the mother; that petition, which does not appear in the materials

before this court, was assigned case number DR-19-900863.01 ("the .01

action"). The trial court entered a judgment in the .01 action on January

12, 2021, denying the father's request for sole physical custody of the

children but finding the mother in contempt for having violated certain

provisions of the divorce judgment.

On April 26, 2022, the mother filed a petition in the trial court

requesting that the father's visitation with the children be suspended;

that petition was assigned case number DR-19-900863.02 ("the .02

action"). The mother alleged, among other things, that the father had

not maintained a suitable living environment for the children and that

she believed that the children had been sexually abused while in the

father's care. On May 24, 2022, the father filed a "petition for

modification and contempt" in which he requested, among other things,

that he be awarded sole physical custody of the children, an award of

child support, a finding of contempt against the mother, an award of

attorney's fees, and that the mother be awarded supervised visitation

with the children; the father's petition was assigned case number DR-19-

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900863.03 ("the .03 action"). The trial court entered an order on June 3,

2022, consolidating the .02 action and the .03 action.

On November 2, 2022, the mother filed a notice with the trial court,

indicating that she had filed a request for the inspection of the father's

electronic records and devices. A copy of that request was attached to the

notice and states:

"Please produce access to any and all electronic devices
within thirty (30) days, for inspection of electronic data stored
on any electronic device in possession of the [father] in the
above-styled action. This request includes, but is not limited
to, any and all laptops, desktops, tablets, cellular telephone
and devices, electronic watches, and any other electronic
device in the possession and that is used by the [father]."

On November 8, 2022, the mother filed in the trial court a motion to

compel. She asserted that the father's counsel had indicated that the

father did not intend to comply with her discovery request seeking

inspection of the father's electronic records and devices, and she

requested an order compelling the father to respond to her request for

inspection, as well as sanctions in the form of a reasonable attorney's fee.

The father filed a response to the mother's motion to compel on

November 9, 2022. He asserted that his electronic devices "contain

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personal and confidential information which should not be viewed by the

... mother or her counsel," that there was "absolutely no probative value

to th[e] [mother's] request," that the mother's request was "a fishing

expedition by which the mother hopes to pry into the father's life," and

that the request was an invasion of privacy that was not relevant to the

issues in the case. On November 21, 2022, the father filed a motion for a

protective order and a supplemental objection to the mother's request for

inspection. He asserted, among other things, that the mother's request

was overly broad, unduly burdensome, and highly prejudicial and that

his devices contain data with confidential and privileged

communications, including communications subject to the attorney-client

privilege or protected under the work-product doctrine. The father

requested a protective order stating that he was not required to turn over

his electronic devices for inspection and examination by the mother

and/or "her representatives, agents, or experts." The father filed, on

November 25, 2022, a motion to stay the entry of an order on the mother's

motion to compel.

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On November 29, 2022, the mother filed a response to the father's

motion for a protective order and his supplemental objection to her

discovery request, and, on November 30, 2022, the mother filed a

response to the father's motion to stay. On December 1, 2022, the father

filed a reply to the mother's November 29, 2022, response in which he

reasserted the arguments that he had previously asserted in response to

the mother's motion to compel.

On December 12, 2022, the trial court entered an order granting, in

part, the father's motion for a protective order. That order states, in its

entirety:

"MOTION FOR PROTECTIVE ORDER filed by [the
father] is hereby GRANTED IN PART. [The father] may not
assert the attorney/client privilege in such a way as to shield
entire devices from examination by [the mother's] expert. If
[the father] believes that there are emails, documents or other
forms of electronically stored information on his devices that
are privileged communications or contain privileged
information, he must assert the privilege as to those items by
filing a motion seeking protection from disclosure. Upon the
filing of such a motion the [mother's] expert is stayed from
examining those items pending the court's ruling as to the
asserted privilege."

(Capitalization in original.)

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On December 20, 2022, the trial court entered an order addressing

a number of pending motions, including the mother's motion to compel.

That order provides, in pertinent part, that

"the motion to compel filed by the mother is GRANTED in
part and the father shall deliver to the mother's expert, all
electronic devices specified in the mother's first request for
inspection of electronic records. The mother's expert shall not
disclose to the mother or her attorney, (i) confidential military
electronic messages related to the father's military
employment, (ii) any evidence of communication between the
father and his attorney or any files related to those
communications and (iii) military issued devices related to the
father's employment. The father shall provide his password,
pin, or any other information necessary to access these devices
to the mother's expert which shall not be shared with the
parties or their respective attorneys."

(Capitalization in original.)

On January 17, 2023, the father filed a petition for the writ of

mandamus with this court.

CL-2023-0018 -- The .03 Action

We first address the father's mandamus petition to the extent it

purportedly challenges orders entered in the .03 action. We note that

each of the filings and orders pertaining to the mother's discovery request

indicate that they were entered in the .02 action. There is no indication

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in the materials before this court that those same filings and orders were

entered in the .03 action, and the trial court's orders in the .02 action are

not considered part of the .03 action merely because those actions were

consolidated. See Ex parte Autauga Cnty. Dep't of Hum. Res., [Ms.

2200936, Nov. 5, 2021] ___ So. 3d ___, ___ (Ala. Civ. App. 2021). Because

the father has not presented anything to this court indicating that the

mother's motion to compel, the father's motion for a protective order, or

the trial court's orders in response to those motions were filed or entered

in the .03 action, there is nothing for this court to review in that case.

Accordingly, we deny the father's mandamus petition in CL-2023-0018.

See Ex parte Autauga Cnty. Dep't of Hum. Res., 348 So. 3d 403, 410 (Ala.

Civ. App. 2021) (concluding that the petitioner's failure to include in the

materials submitted to this court any orders entered in an action

required the denial of its petition for the writ of mandamus as to that

action).

CL-2023-0017 -- The .02 Action

With regard to the orders entered in the .02 action, the father

argues in his mandamus petition that his electronic devices contain

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various forms of protected material that warrant a protective order

prohibiting those devices from examination; that the mother's discovery

request is "a fishing expedition designed to harass him"; that the

protective order entered by the trial court is insufficient to shield the

mother from obtaining the father's protected information; and that it is

unduly burdensome to require the father to retain his own expert to

create a log of the privileged data that is on his electronic devices. In Ex

parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813-14 (Ala. 2003), our

supreme court outlined the applicable standard of review:

"Mandamus is an extraordinary remedy and will be
granted only where there is '(1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty upon the
respondent to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) properly invoked
jurisdiction of the court.' Ex parte Alfab, Inc., 586 So. 2d 889,
891 (Ala. 1991). This Court will not issue the writ of
mandamus where the petitioner has ' "full and adequate
relief" ' by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So. 2d
523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316
(1881)).

"Discovery matters are within the trial court's sound
discretion, and this Court will not reverse a trial court's ruling
on a discovery issue unless the trial court has clearly exceeded
its discretion. Home Ins. Co. v. Rice, 585 So. 2d 859, 862 (Ala.
1991). Accordingly, mandamus will issue to reverse a trial

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court's ruling on a discovery issue only (1) where there is a
showing that the trial court clearly exceeded its discretion,
and (2) where 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.

"Generally, an appeal of a discovery order is an adequate
remedy, notwithstanding the fact that that procedure may
delay an appellate court's review of a petitioner's grievance or
impose on the petitioner additional expense; our judicial
system cannot afford immediate mandamus review of every
discovery order. See Walker v. Packer, 827 S.W.2d 833, 842
(Tex.1992) ('Mandamus disrupts the trial proceedings, forcing
the parties to address in an appellate court issues that
otherwise might have been resolved as discovery progressed
and the evidence was developed at trial.'). In certain
exceptional cases, however, review by appeal of a discovery
order may be inadequate, for example, (a) when a privilege is
disregarded, see Ex parte Miltope Corp., 823 So. 2d 640, 644-
45 (Ala. 2001) ('If a trial court orders the discovery of trade
secrets and such are disclosed, the party resisting discovery
will have no adequate remedy on appeal.'); (b) 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, see, e.g., Ex parte Compass, 686 So. 2d 1135, 1138 (Ala.
1996) (request for 'every customer file for every variable
annuity' including annuity products the plaintiff did not
purchase); (c) 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 (d) when the trial court

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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. The burden
rests on the petitioner to demonstrate that its petition
presents such an exceptional case -- that is, one in which an
appeal is not an adequate remedy. See Ex parte Consolidated
Publ'g Co., 601 So. 2d 423, 426 (Ala. 1992)."

(Footnote omitted.)

We first address the father's argument that the mother's discovery

request is an impermissible fishing expedition designed to harass him.

The father cites Ex parte Rice, 258 Ala. 132, 138, 61 So. 2d 7, 8 (1952),

and Ex parte Rowell, 248 Ala. 80, 26 So. 2d 554, 557 (1946), both of which

were decided before the adoption the Alabama Rules of Civil Procedure

and both of which include a determination by our supreme court that

interrogatories could not be used in those cases to discover the existence

of a fact then unknown as a basis for allegations necessary to a cause of

action not already alleged in the complaint. In the present case, the scope

of discovery in the trial court is governed by Rule 26(b), Ala. R. Civ. P.,

which provides, in pertinent part:

"(1) In General. Parties may obtain discovery regarding
any matter, not privileged, which is: (i) relevant to the subject
matter involved in the pending action, whether it relates to

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the claim or defense of the party seeking discovery or to the
claim or defense of any other party; and (ii) proportional to the
needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties'
relative access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. 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."

In Zaden v. Elkus, 881 So. 2d 993, 1006 (Ala. 2003), our supreme court

confirmed that discoverable matters that are relevant to the subject

matter of an action have "no immediate status as 'evidence.' " The court

stated, in pertinent part:

"The proper test under Rule 26[, Ala. R. Civ. P.,] is
whether the information sought for discovery is 'relevant'
within the meaning of that rule. As noted, discovery of certain
information is relevant at [the discovery] stage even though
that information is not admissible at trial if there is the
reasonable possibility that the information will lead to other
information that will be admissible as evidence at trial."

881 So. 2d at 1007.

In her petition in the .02 action, the mother asserted, among other

things, that the father had not maintained a suitable living environment

for the children; that the mother believed the children had been sexually

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abused while in the father's care, that the parties' oldest child had

disclosed inappropriate behavior toward him by the father, and that the

children had exhibited behavior that caused the mother concern. In her

motion to compel discovery, the mother asserted that her requested

inspection of the father's electronic devices was necessary to discover

whether he was exposing the children to his "potential perverse

fascinations and pornographic [Web sites.] She further asserted that

multiple reports had been made to the Baldwin County Department of

Human Resources regarding the father's abusive behavior toward the

children.

The father does not assert in his mandamus petition that the

mother's discovery request is irrelevant to the allegations made in her

complaint. Rather, he asserts that her claim that the father has exposed

the children to inappropriate materials "exists only in her mind" and that

there has been no mention of that purported conduct in accusations that

she had made to law-enforcement and other law-enforcement related

agencies. "This Court has on many occasions held that the trial courts

have very broad discretion regarding discovery matters under Rule 26,

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Ala. R. Civ. P." Hunt v. Windom, 604 So. 2d 395, 397 (Ala. 1992). The

father attaches to his mandamus petition, among other things, notices of

his intent to serve nonparty document subpoenas on agencies to which

the mother has purportedly raised allegations regarding the father's

treatment of the children, including the Daphne Police Department, the

Escambia County Regional Child Advocacy Center, Care House Baldwin

County Child Advocacy Center, the Robertsdale Police Department, the

Fairhope Police Department, and the Alabama Department of Human

Resources. The father asserts, referencing attachments to his

mandamus petition containing records from the Baldwin County

Department of Human Resources and the Escambia County Child

Advocacy Center, that "[i]n all of the shopping around to various police

departments in the hopes an accusation would stick, there has been no

mention of this purported conduct." Even assuming that the records from

two of the six agencies that have purportedly received information

related to the allegations referenced by the mother in her complaint

contain no indication of the allegations sought to be discovered, we cannot

conclude that those records require the denial of the mother's request to

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inspect the father's electronic records and devices in its entirety. Because

the trial court could have determined that the mother's discovery request

was relevant to the allegations in her petition and had the potential to

lead to admissible evidence, we do not conclude that the trial court erred

in declining to deny the mother's discovery request as an impermissible

fishing expedition.

We next consider the father's argument that his electronic devices

contain information "that falls within the attorney-client privilege,

spousal privilege, work product, and also personal, private information

related to his work as a military recruiter." With the exception of his

assertion regarding the existence of communications protected by

"spousal privilege," we note that the remaining categories of potentially

privileged information outlined by the father are addressed in the trial

court's December 20, 2022, order. The father cites in support of his

argument that his electronic devices contain communications between

him and his spouse that deserve protection under Rule 504(b), Ala. R.

Evid., which provides, in pertinent part, that "a person has a privilege to

refuse to testify, or to prevent any person from testifying, as to any

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confidential communication made by one spouse to the other during the

marriage." He also cites Cooper v. Mann, 273 Ala. 620, 623, 143 So. 2d

637, 639 (1962), which was decided before the adoption of the Alabama

Rules of Civil Procedure, for the proposition that "all private and

confidential communications between husband and wife are privileged

and cannot be divulged by either when on the witness stand." Presently,

Rule 26(b)(6), Ala. R. Civ. P., addresses claims of privilege or protection

of trial-preparation materials and provides, in pertinent part:

"(A) When a party withholds information otherwise
discoverable under these rules on a claim that it is privileged
or subject to protection as trial-preparation materials, the
claim shall be made expressly and, upon written request by
any other party, shall be supported by a description of the
nature of the documents, communications, or things not
produced sufficient to enable the demanding party to contest
the claim. This supporting description shall be served within
twenty-one (21) days of the date a request is served, unless
otherwise ordered."

In the present case, the materials before this court indicate that the

father's only reference to a claim of privileged communications between

him and his spouse occurred in the father's December 1, 2022, reply to

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the mother's response to his motion for a protective order in which he

asserted, in pertinent part, that the mother

"is merely on a fishing expedition in which she desires to pry
into the personal life of the father with no pending allegation
and review confidential attorney client information, trial
strategy, marital privilege and communication between the
father and his new spouse, electronic trial information
conveyed via Internet and other information in a rouse [sic]
and a newly alleged POTENTIAL that the children saw
pornography."

(Capitalization in original.) We cannot conclude that the father's

assertion in his December 1, 2022, reply satisfied the requirement in Rule

26(b)(6) that any claim regarding privileged information be supported by

a description of the nature of the documents or communications or that

his assertion amounts to a claim of privilege regarding communications

between him and his spouse. Accordingly, we cannot conclude that the

trial court clearly exceeded its discretion in excluding from its protective

order any reference to items purportedly protected by "spousal privilege."

See Ocwen, supra. We note, however, that the trial court's December 12,

2022, order permits the father to file a motion seeking protection from

disclosure of items subject to that privilege.

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Regarding the remainder of the information that the father asserts

is protected by an evidentiary privilege or as attorney work product, the

trial court entered a protective order in response to the father's request.

Rule 26(c), Ala. R. Civ. P., which addresses protective orders in response

to discovery requests, allows a trial court to order, among other things,

"that the discovery may be had only on specified terms and conditions,"

"that certain matters not be inquired into or that the scope of the

discovery be limited to certain matters," or "that discovery be conducted

with no one present except persons designated by the court." In

accordance with Rule 26(c), the trial court in the present case directed

that the mother's expert shall not disclose to the mother or her attorney

certain communications, messages, and devices with regard to the

information protected by the attorney-client privilege and other files

related to the father's legal case (e.g., attorney work product) or

information related to the father's employment. In addition to those

limitations, the trial court's December 12, 2022, order allows the father

to assert evidentiary privileges as to specified items and to request a

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ruling by the trial court before the mother's expert may proceed with a

review of those additional items.

The father argues that the trial court exceeded its discretion

because its December 12, 2022, order effectively requires him to retain

his own expert to create a log of privileged data on his electronic devices

and, he argues, such a requirement is unduly burdensome. Rule

26(b)(2)(A), Ala. R. Civ. P., provides:

"A party need not provide discovery of electronically stored
information from sources that the party identifies to the
requesting party as not reasonably accessible because of
undue burden or cost. On motion to compel discovery or for a
protective order, the party from whom discovery is sought
must show that the information is not reasonably accessible
because of undue burden or cost. If that showing is made, the
court may nonetheless order discovery from such sources if
the requesting party shows good cause for compelling the
discovery, considering the limitations of subdivision (b)(2)(B)
of this rule. The court may specify conditions for such
discovery."

In her answer to the father's mandamus petition, the mother

asserts that the father failed to argue before the trial court that he was

required to retain his own expert to address the mother's discovery

request or that he had presented any indication that such a requirement

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would create an undue burden or expense on the father. From all that

appears in the materials before this court, the father failed to make the

necessary showing before the trial court, as required in Rule 26(b)(2)(A),

that allowing the mother to discover the requested information is not

reasonably accessible because of undue burden or cost. Indeed, the father

appears to admit in his December 1, 2022, reply to the mother's answer

that he failed to make "the specific argument that he by himself cannot

discern what data, metadata, and deleted items qualify as confidential,

privileged, or protected." Thus, he appears to concede that he failed to

argue before the trial court that the expense of hiring his own expert

would create an undue burden such that the mother's discovery request

was due to be denied. See Ex parte Ebbers, 871 So. 2d 776, 786 (Ala.

2003) ("In determining, on mandamus review, whether the trial court

exceeded the limits of its discretion, 'the appellate courts will not reverse

the trial court on an issue or contention not presented to the trial court

for its consideration in making its ruling.' Ex parte Wiginton, 743 So. 2d

1071, 1073 (Ala. 1999).").

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The father argues, however, that this court may consider his

argument because of the mother's alleged admission in her answer to the

father's mandamus petition that the data sought in her discovery request

may be found only by a forensic expert. The mother states in her answer

that a forensic examination of the father's electronic devices is necessary

because, presumably, any illicit materials on the father's devices are

likely to be hidden or deleted by the father, thereby requiring an expert

to extract those hidden files. We cannot agree with the father that the

mother's statement amounts to an admission that the father can identify

the data sought in the mother's discovery request only by employing a

forensic expert. Moreover, the father admits in his mandamus petition

that the mother had offered to pay for the extraction of data and

metadata from his electronic devices. Accordingly, we cannot conclude

that the father has shown that he will bear any cost, let alone undue cost,

as a result of the mother's discovery request or the limitations and

conditions placed on that request by the trial court such that the trial

court clearly exceeded its discretion. See Ocwen, supra.

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The father also challenges the trial court's December 20, 2022,

order. He asserts that, because that order allows the mother's expert to

determine whether the information on his electronic devices is

confidential, privileged, or protected, the trial court's order effectively

appointed the mother's hired expert as a "de facto special master," an

appointment that he asserts was error. There is no indication in the

materials before us, however, that the father presented his argument

that the trial court had erroneously appointed the mother's expert as a

special master to the trial court at any time. Accordingly, we decline to

address that argument. See Ebbers, supra. We acknowledge that the

father argued in his November 21, 2022, motion for a protective order

that the mother's request to allow her expert to search his electronic

devices and to determine whether the data on those devices amounts to

privileged or protected information is "highly and unfairly prejudicial."

The father fails, however, to present any argument or any citation to

authority in support of that assertion in his mandamus petition; instead,

he limits his challenges to the trial court's December 20, 2022, order to

his argument that the mother's expert is disqualified from serving as a

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special master. Accordingly, the father has failed to show that the trial

court clearly exceeded its discretion with regard to its December 20, 2022,

order.

Because the father has failed to show a clear legal right to the relief

sought, we deny his petition.

CL-2023-0017 -- PETITION DENIED.

CL-2023-0018 -- PETITION DENIED.

Thompson, P.J., and Hanson and Fridy, JJ., concur.

Edwards, J., concurs in the result, without opinion.

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