Stetson v. Silverman

independent review of the record, we find by clear and con-
vincing evidence that by her conduct prior to September 1,
2005, respondent violated DR 1-102 and DR 6-101 of the
Code of Professional Responsibility, as well as her oath of
office as an attorney licensed to practice law in the State of
Nebraska. Further, by her conduct after September 1, 2005,
respondent violated §§ 3-501.1 and 3-508.4, as well as her
oath of office as an attorney licensed to practice law in the
State of Nebraska. Respondent should be, and hereby is, sus-
pended from the practice of law for a period of 60 days, effec-
tive 30 days after the filing of this opinion. Respondent shall
comply with Neb. Ct. R. § 3-316, and upon failure to do so,
she shall be subject to punishment for contempt of this court.
Respondent is also directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and Neb. Ct. R. §§ 3-310(P) and 3-323(B) within 60
days after the order imposing costs and expenses, if any, is
entered by the court.
Judgment of suspension.
StetSoN v.S ilveRmaN 	389
Cite as 278 Neb. 389
W.K. stetson, m.d., et al ., relators , v. Honorable
brian C. silverman, Judge , distriCt C ourt for
daWes C ounty, nebrasKa , respondent, and
sHaron K. ranKin, intervenor .
770 N.W.2d 632
Fileda ugust 21, 2009. 	No. S-09-209.
1. Mandamus: Words and Phrases.m andamus is a law action and is defined as
an extraordinary remedy, not a writ of right.a writ of mandamus is issued to
compel the performance of a purely ministerial act or duty, imposed by law upon
an inferior tribunal, corporation, board, or person.
2. Mandamus.a court issues a writ of mandamus only when (1) the relator has
a clear right to the relief sought, (2) a corresponding clear duty exists for the
respondent to perform the act, and (3) no other plain and adequate remedy is
available in the ordinary course of law.
3. Mandamus: Proof.i n a mandamus action, the relator has the burden of proof
and must show clearly and conclusively that such party is entitled to the particu-
lar remedy sought and that the respondent is legally obligated to act.
4. Mandamus: Pretrial Procedure: Appeal and Error.i n determining whether
mandamus applies to a discovery issue, an appellate court considers whether
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

the trial court clearly abused its discretion in not limiting the scope of the
discovery.
5. Administrative Law: Pretrial Procedure. Neb. Rev. Stat. § 38-1,106 (Reissue
2008) does not preclude discovery of information that originated outside of
the Department of Health and Human Services’ investigation of a creden-
tial holder.
6. Administrative Law: Evidence: Records.t he evidentiary privilege under Neb.
Rev. Stat. § 38-1,106 (Reissue 2008) belongs to the Department of Health and
Human Services and is limited to protecting the department’s incident reports,
complaints, and investigatory records.
7. Evidence: Waiver. Generally, an evidentiary privilege is waived when the holder
of the privilege voluntarily discloses or consents to disclosure of any significant
part of the matter or communication.
8. Administrative Law: Words and Phrases.a proceeding becomes a contested
case when a hearing is required.
9. Administrative Law: Disciplinary Proceedings: Compromise and Settlement.
Under Neb. Rev. Stat. § 38-190(1) (Reissue 2008), if the parties dispose of a
disciplinary petition through an agreed settlement before a hearing, then the pro-
ceeding is not one required by law or constitutional right to be determined after
an agency hearing.
10. Pretrial Procedure: Trial. Relevancy at the discovery stage, when the issues are
not clearly defined, is construed more broadly than relevancy at trial.
original action. Peremptory writ denied.
marke . Novotny, ofl amson, Dugan &m urray,l .l.P., and
lonnie R. Braun, oft homas, Braun, Bernard & Burke,l .l.P.,
for relators.
marenl ynn Chaloupka and Robert Paul Chaloupka, of
Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, for
intervenor Sharon K. Rankin.
H eaviCan, C.J., WrigHt, C onnolly, gerrard, stepHan, and
miller-lerman, JJ.
C onnolly, J.
SUmmaRY
this is an original action.t he relators have asked us to issue
a peremptory writ of mandamus, ordering the Honorable Brian
C. Silverman, judge of the district court for Dawes County, to
vacate his discovery order in the underlying medical malprac-
tice action.i n that action, Sharon Rankin, the plaintiff, had
filed notice of her intent to issue a subpoena to the Department
390 	278N eBRaSKaR ePoRtS

of Health and Human Services (Department) for document
production.i n the subpoena, she sought the investigatory mate-
rials in the disciplinary action against W.K. Stetson,m .D.,
one of the defendant physicians.t he defendants objected that
the requested materials were privileged under Neb. Rev. Stat.
§ 38-1,106 (Reissue 2008).i n his order, Judge Silverman
overruled the defendants’ objection. His order also permitted
Rankin to conduct other discovery regarding the misconduct.
this case centers on whether Rankin can discover the underly-
ing facts supporting the disciplinary action against Stetson.
BaCKGRoUND
this action has its origin in Rankin v. Stetson,1 a case we
previously decided. Rankin sued Stetson; C.a. Sutera,m .D.;
and the Chadronm edical Clinic, P.C. She alleged that the
defendants failed to properly diagnose and treat her spinal
cord injury after she fell. Stetson was the emergency room
physician.o n appeal, we affirmed the district court’s order that
excluded Rankin’s expert’s testimony, but we reversed the dis-
trict court’s order granting the defendants summary judgment.
We concluded that another expert’s affidavit submitted by
Rankin contained statements that sufficiently created a factual
issue on causation.
While our decision was pending, Stetson surrendered his
medical license.t he State had brought a disciplinary action
against Stetson.i t alleged that from 2000 to 2008, during non-
gynecological examinations, he engaged in inappropriate sexual
touching of patients.i nm ay 2008, Stetson waived his right to
a hearing, pleaded no contest to the allegations, and voluntarily
surrendered his license for a minimum of 2 years.
in January 2009, Rankin moved to file an amended com-
plaint.i n the complaint, she had added a claim alleging that
she did not give informed consent to Stetson’s medical care,
because he had not disclosed his “compulsions” and unfitness.
Rankin concedes that Stetson did not engage in misconduct
with her. But she claimed that the material was relevant because
his “compulsions” likely distracted him from concentrating
1 See Rankin v. Stetson, 275 Neb. 775, 749 N.W.2d 460 (2008).
StetSoN v.S ilveRmaN 	391
Cite as 278 Neb. 389

on her injury. She also filed notice of her intent to serve the
Department’s records custodian with a rule 34(a) subpoena for
production of documents.2 She wanted to obtain the complaints
and complete investigatory record in the State’s case against
Stetson. Stetson objected to the subpoena. Rankin then moved
to compel Stetson to supplement his original responses to
interrogatories and to overrule the defendants’ objection to the
subpoena. Stetson’s original responses had stated that he was
board certified and listed the professional boards and associa-
tions to which he belonged. Stetson argued that Rankin could
not discover the material, because it was irrelevant and statu-
torily privileged under § 38-1,106.
in a February 13, 2009, journal entry, Judge Silverman
overruled the defendants’ objections to the subpoena. He also
continued the trial so that Rankin could conduct further dis-
covery regarding the allegations and surrender of Stetson’s
license.t he permitted discovery included a second deposition
of Stetson.
the defendants then applied for leave with this court to file
an original action for mandamus. We granted an alternative
writ of mandamus directing Judge Silverman to vacate and set
aside his order of February 13, 2009, or to show cause why
we should not issue a peremptory writ of mandamus. We also
granted Rankin’s motion to intervene.
aNalYSiS
[1-3]m andamus is a law action. We have defined it as an
extraordinary remedy, not a writ of right.a writ of mandamus
is issued to compel the performance of a purely ministerial act
or duty, imposed by law upon an inferior tribunal, corporation,
board, or person.a court issues a writ only when (1) the rela-
tor has a clear right to the relief sought, (2) a corresponding
clear duty exists for the respondent to perform the act, and (3)
no other plain and adequate remedy is available in the ordinary
course of law.3a nd in a mandamus action, the relator has the
2 See Neb. Ct. R. Disc. § 6-334(a).
3 See State ex rel. Upper Republican NRD v. District Judges, 273 Neb. 148,
728 N.W.2d 275 (2007).
392 	278N eBRaSKaR ePoRtS

burden of proof and must show clearly and conclusively that
such party is entitled to the particular remedy sought and that
the respondent is legally obligated to act.4
[4]i n determining whether mandamus applies to a discovery
issue, we consider whether the trial court clearly abused its
discretion in not limiting the scope of the discovery.5 Here, we
consider only three issues: (1) whether Judge Silverman could
permit Rankin to conduct additional discovery from original
sources of information used by the Department; (2) whether
Stetson could invoke § 38-1,106 to prevent discovery of the
Department’s complaints and investigatory records; and (3)
whether the discovery of Stetson’s unprofessional conduct was
relevant for discovery purposes.
Under rule 26(b)(1) of Nebraska’s discovery rules, “[p]arties
may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending
action . . . .”6 Resolving this mandamus request centers on the
evidentiary privilege under § 38-1,106(1). Before deciding the
substantive issues, however, we explain why we are referring to
the current version of the statutory privilege, which was not in
effect when the Department investigated the complaints against
Stetson or when he surrendered his license inm ay 2008.
reCodifiCation of statutes does not affeCt analysis
at the time Stetson surrendered his license, thel egislature
codified the statutory privilege at Neb. Rev. Stat. § 71-168.01(7)
(Reissue 2003). But in February 2009, when the court entered
its 	discovery 	order, 	the 	current 	recodification 	of 	statutes
governing disciplinary actions against “credentials”7 was in
effect.8 Under the current statutes, “credential” includes a
license, certificate, or registration.9t he new statutes refer to
4 State ex rel. Stivrins v. Flowers, 273 Neb. 336, 729 N.W.2d 311 (2007).
5 See id.
6 See Neb. Ct. R. Disc. § 6-326(b)(1).
7 See Neb. Rev. Stat. §§ 38-176 to 38-1,113 (Reissue 2008).
8 See 2007 Neb.l aws,l .B. 463, and 2008 Neb.l aws,l .B. 308 (operative
December 2008).
9 See Neb. Rev. Stat. § 38-113 (Reissue 2008).
StetSoN v.S ilveRmaN 	393
Cite as 278 Neb. 389

conduct by a “credential holder” instead of a licensee or cer-
tificate holder.10
in some circumstances, the recodification of a statutory
privilege might require us to determine whether the control-
ling statute was the one in effect when the trial court resolved
the discovery dispute or the one in effect when the protected
action occurred.11 But here, both versions of the statutes are
essentially the same regarding the public or privileged status
of the filings and investigatory records. So we need not decide
which statute governed the issue. Because no relevant differ-
ence exists between the statutes, we shall refer to the current
codification. Next, we explain the extent of the evidentiary
privilege in disciplinary proceedings.
publiC reCords and privileges under
disCiplinary proCeedings statutes
Sections 38-186 to 38-1,113 set out the permitted procedures
for resolving allegations in a complaint to the Department
or a petition for discipline against a credential holder.t he
attorney General receives a copy of all the Department’s com-
plaints.a fterward, thea ttorney General’s office can choose
between three options: (1)i t can file a petition for discipline;
(2) it can negotiate a voluntary settlement; or (3) it can refer
insubstantial violations to the Department for a professional
board’s recommendation that thea ttorney General enter into
a nondisciplinary “assurance of compliance” agreement with
the credential holder.12 But even if thea ttorney General does
not elect to file a petition, the Department can independently
request that thea ttorney General commence such a proceeding
after board review.13
10 See, e.g., § 38-181.
11 Compare State v. Pelley, 828 N.e.2d 915 (ind. 2005), with Ley v. Blose,
698 N.e.2d 381 (ind.a pp. 1998); Sweasy v. King’s Daughters Mem.
Hosp., 771 S.W.2d 812 (Ky. 1989); and Dyer v. Blackhawk Leather LLC,
313 Wis. 2d 803, 758 N.W.2d 167 (Wis.a pp. 2008).
12 See § 38-1,107(1)(c).
13 See § 38-1,105 and Neb. Rev. Stat. § 38-1,139 (Reissue 2008).
394 	278N eBRaSKaR ePoRtS

if thea ttorney General files a petition for discipline with the
Department, the allegations in the petition are not privileged.14
additionally, any settlement that the Department accepts after
thea ttorney General has filed a petition for discipline is
public.15 Finally, the Department’s underlying complaints and
investigatory records are public if there is a contested hearing
before the Department and the materials are made part of the
record.16 But, if the materials are not included in a contested
hearing, the Department’s incident reports, underlying com-
plaints, and investigatory records are statutorily privileged from
discovery. Section 38-1,106(1), in relevant part, provides:
Reports under sections 38-1,129 to 38-1,136, complaints,
and investigational records of the department shall not be
public records, shall not be subject to subpoena or dis-
covery, and shall be inadmissible in evidence in any legal
proceeding of any kind or character except a contested
case before the department. Such reports, complaints, or
records shall be a public record if made part of the record
of a contested case before the department.17
seCtion 38-1,106 does not preClude ranKin’s request
for a seCond deposition of stetson
and additional disCovery
Stetson, Sutera, and Chadronm edical Clinic (hereinafter
collectively relators) claim that Judge Silverman erred in ruling
that Rankin could conduct discovery, including a second depo-
sition, regarding Stetson’s surrendering of his license for sexual
misconduct. But the relators make a faint argument.i n their
brief, they contend that § 38-1,106 “prevents the compelling
of supplementary responses to written discovery or deposition
14 See § 38-186(2).
15 See § 38-190. See, also, Neb. Rev. Stat. § 71-161.03 (Reissue 2003) (for-
mer codification of § 38-190).
16 See § 38-1,106. See, also, § 71-168.01(7) (former codification of
§ 38-1,106).
17 See, also, § 71-168.01(7) and Neb. Rev. Stat. § 71,168.02(2) (Reissue
2003).
StetSoN v.S ilveRmaN 	395
Cite as 278 Neb. 389

questions to the extent they involve the privilege matters of the
[Department].”18
We narrowly construe statutorily created evidentiary privi-
leges.19 Such privileges are in derogation of common law and
the truth-seeking function of trials in settling controversies.20
Section 38-1,106 privileges the Department’s complaints, inci-
dent reports, and investigatory records. But it does not provide
a clear privilege against a party’s discovering any information
about a disciplinary action from an original source (Stetson).
Nor do the disciplinary statutes show that thel egislature
intended the privilege to protect the credential holder (Stetson)
from disclosure of the information after thea ttorney General
has filed a petition for discipline.
thel egislature has not specified whom the privilege pro-
tects.t he statutes, however, show thel egislature intended to
balance the public’s need to know about disciplinary actions
against health care professionals with the State’s need to
encourage the reporting of unprofessional conduct. Specifically,
thel egislature has immunized from liability persons mak-
ing a complaint and requesting an investigation and made
such complaints confidential.21a nd professional boards must
conduct closed meetings on any matter pertaining to an inves-
tigation or recommendation to the Department.22i t has also
immunized insurance employees and peer review members
from liability regarding incident reports to the Department and
made these reports confidential.23i n contrast to the confiden-
tiality afforded to insurance and peer review reports, after the
18 Brief for relators at 19.
19 See, State ex rel. AMISUB v. Buckley, 260 Neb. 596, 618 N.W.2d 684
(2000); Branch v. Wilkinson, 198 Neb. 649, 256 N.W.2d 307 (1977).
20 See, United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41l .e d. 2d
1039 (1974); Branch, supra note 19. Compare IAFF Local 831 v. City of
No. Platte, 215 Neb. 89, 337 N.W.2d 716 (1983), disapproved on other
grounds, Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb.
956, 698 N.W.2d 45 (2005).
21 See Neb. Rev. Stat. § 38-1,138 (Reissue 2008).
22 See § 38-1,105(5).
23 See Neb. Rev. Stat. §§ 38-1,127, 38-1,134, and 38-1,135 (Reissue 2008).
396 	278N eBRaSKaR ePoRtS

attorney General files a petition for discipline, confidentiality
is not absolute.t he statutes make public the allegations in the
petition24 and any agreed settlement between the parties that
the Department accepts.25
these sections illustrate that thel egislature has provided
immunity from liability and discovery privileges to encour-
age reporting to the Department incidents of unprofessional
conduct. But the statutes do not show thel egislature intended
to protect the credential holder (Stetson) from discovery of the
underlying facts supporting the disciplinary proceedings after
thea ttorney General has filed a petition for discipline. Nor
would this interpretation be consistent with the way this court
and other courts have interpreted the related peer review privi-
lege for hospitals. When applying the peer review privilege,
other courts have held that it does not extend to information
that a person has obtained or collected independent of the peer
review process.26 We have similarly refused to extend the peer
review privilege to protect materials that originated outside of
the peer review process.
We have held that the peer review privilege does not apply
to incident reports regarding the care of individual patients that
were not prepared at the request of the hospital’s peer review
committee.27i n State ex rel. AMISUB v. Buckley,28 we stated
that the peer review privilege serves a twofold purpose related
to improving a hospital’s care and treatment of patients: (1)i t
encourages communications to a hospital review committee,
24 See § 38-186(2).
25 See § 38-190(1).
26 See, e.g., Babcock v. Bridgeport Hosp., 251 Conn. 790, 742a .2d 322
(1999); Roach v. Springfield Clinic, 157i ll. 2d 29, 623 N.e.2d 246, 191
ill. Dec. 1 (1993); Virmani v. Presbyterian Health Services, 350 N.C. 449,
515 S.e.2d 675 (1999); State ex rel. Brooks v. Zakaib, 214 W.v a. 253, 588
S.e.2d 418 (2003). See, also,a nnot., 69a .l.R. 5th 559 (1999); 23a m.
Jur. 2d Depositions and Discovery § 159 (2002); 81a m. Jur. 2d Witnesses
§ 537 (2004). Compare Sun Health Corp. v. Myers, 205a riz. 315, 70 P.3d
444 (ariz.a pp. 2003).
27 State ex rel. AMISUB, supra note 19.
28 See id.
StetSoN v.S ilveRmaN 	397
Cite as 278 Neb. 389

and (2) it encourages the committee’s frank discussion and
candid evaluation of clinical practices. We have further stated,
“‘Constructive professional criticism cannot occur in an atmos-
phere of apprehension that one doctor’s suggestion will be used
as a denunciation of a colleague’s conduct in a malpractice
suit.’”29 But we concluded that thel egislature did not intend
the peer review privilege to shield hospitals from all potential
liability or to preclude discovery of all hospital records. We
reasoned, in part, that interpreting the privilege so broadly that
hospitals were never held accountable for wrongdoing does not
serve the goal of improving the care of patients.30
[5] 	We 	find 	this 	reasoning 	persuasive 	in 	interpreting
§ 38-1,106.t he privilege under § 38-1,106 is justified because
it serves the public goal of improving the care and treatment
of patients.i t serves this goal in much the same way that the
peer review privilege does: by encouraging communications
to the Department about unprofessional conduct. But like the
peer review privilege, § 38-1,106 does not preclude discovery
of information from persons who obtained the information
from outside of the privileged investigatory process.t hus,
in State ex rel. AMISUB,31 the plaintiff could discover inci-
dent reports that were written or collected by hospital nurses
because they were neither originated by nor requested by a
hospital review committee. Similarly, plaintiffs in a malprac-
tice action could discover information about the incident from
a hospital physician because the physician had obtained the
information from a nurse before any peer review process had
been initiated.32
[6]m oreover, interpreting the statutes as providing a privi-
lege to the credential holder would not make sense.i t would
effectively mean that a plaintiff in a malpractice action could
never show why a health care professional had lost his or her
license even if the State had disciplined the professional for the
29 Oviatt v. Archbishop Bergan Mercy Hospital, 191 Neb. 224, 226, 214
N.W.2d 490, 492 (1974).
30 State ex rel. AMISUB, supra note 19.
31 See id.
32 See Roach, supra note 26.
398 	278N eBRaSKaR ePoRtS

very conduct alleged in the complaint.t his creates an absurd
result because the plaintiff filing the suit has waived any con-
fidentiality in the original complaint.a nd so, we conclude
that the evidentiary privilege under § 38-1,106 belongs to the
Department, not to Stetson.a nd § 38-1,106 limits the privilege
to protecting the Department’s incident reports, complaints,
and investigatory records when they are not included in a
contested hearing.t he relators have failed to clearly and con-
clusively show that § 38-1,106 protects Stetson from Rankin’s
further discovery of information available independent of the
Department’s investigation.
stetson Was not entitled to invoKe tHe privilege
against ranKin’s rule 34(a) subpoena
for doCument produCtion
the relators argue that we should issue a writ of manda-
mus prohibiting the rule 34(a) subpoena because the district
court had a clear legal duty under § 38-1,106 to protect any
information involving the Department’s investigation.t he rela-
tors argue that under § 38-1,106, the materials Rankin sought
are privileged.
Rankin disagrees. She argues that under § 38-1,106, she can
discover the Department’s reports of unprofessional conduct
made by patients or coworkers. She further argues that Stetson
waived any protection under the privilege by entering into an
agreed settlement. We disagree with both parties’ arguments.
[7] We will first discuss Rankin’s arguments. Waiver does
not apply here. Generally, an evidentiary privilege is waived
when the holder of the privilege voluntarily discloses or con-
sents to disclosure of any significant part of the matter or
communication.33a s discussed, the privilege under § 38-1,106
was not Stetson’s to waive. Further, in noncontested cases, the
legislature has explicitly privileged the Department’s incident
reports, complaints, and investigatory records despite making
33 See, Neb. Rev. Stat. §§ 27-511 and 27-512 (Reissue 2008); Leeds v.
Prudential Ins. Co., 128 Neb. 395, 258 N.W. 672 (1935). See, also, In re
Grand Jury Proceedings, Vargas, 723 F.2d 1461 (10th Cir. 1983); Harold
Sampson v. Linda Gale Sampson, 271 Wis. 2d 610, 679 N.W.2d 794
(2004).
StetSoN v.S ilveRmaN 	399
Cite as 278 Neb. 389

public the petition for discipline and the order accepting the
agreed settlement.t hus, the public record status of the petition
and the order has no effect on the Department’s privilege.
We 	further 	disagree 	with 	Rankin’s 	argument 	that 	the
Department’s “reports” of unprofessional conduct made by
patients or coworkers are generally discoverable under this
statute. She argues that § 38-1,106’s protection of reports
under Neb. Rev. Stat. §§ 38-1,129 to 38-1,136 (Reissue 2008)
refers only to insurers’ reports to the Department, showing
that § 38-1,106 does not privilege reports from other sources.
it is true that these sections deal only with insurers’ incident
reports. But Rankin’s interpretation of § 38-1,106 ignores
this section’s further protection of “complaints.”t o interpret
the statute’s protection as excluding patients’ or coworkers’
complaints to the Department would be inconsistent with the
legislature’s use of the word “complaint” under § 38-1,138.
Section 38-1,138(1) provides:
any person may make a complaint and request investiga-
tion of an alleged violation of the Uniform Credentialing
act or rules and regulations issued under such act. A
complaint submitted to the department shall be confiden-
tial, and a person making a complaint shall be immune
from criminal or civil liability of any nature, whether
direct or derivative, for filing a complaint or for dis-
closure of documents, records, or other information to
the department.
(emphasis supplied.)t hel egislature has defined “confiden-
tial” information under these statutes to mean “information
protected as privileged under applicable law.”34
Because thel egislature has made public the “petition”
for discipline against a credential holder,35 the word “com-
plaints” in § 38-1,106 clearly does not refer to a petition for
discipline.o bviously, thel egislature intended “complaints”
in § 38-1,106 to refer to the underlying complaints submitted
to the Department under § 38-1,138.t hel egislature has also
privileged as confidential information patients’ or coworkers’
34 § 38-177(1).
35 See § 38-186.
400 	278N eBRaSKaR ePoRtS

complaints from peer review committees.36t hus, Rankin’s
argument is without merit.
[8] We also reject Judge Silverman’s interpretation of the
statutes. He contends that the complaints and records here
were part of the record in a contested case. Neb. Rev. Stat.
§ 84-901(3) (Reissue 2008) of thea dministrative Procedure
act defines a “contested case” as “a proceeding before an
agency in which the legal rights, duties, or privileges of specific
parties are required by law or constitutional right to be deter-
mined after an agency hearing.” We have held that a proceeding
becomes a contested case when a hearing is required.37
after a petition for discipline has been filed under § 38-186,
the director, under §§ 38-188 and 38-189, must fix a time and
place for a hearing and serve notice upon the credential holder.
Section 38-186(3) provides that the proceeding shall be sum-
mary in nature and triable as an equity action.i t further speci-
fies the type of evidence that a party may use in the proceeding.
Finally, §§ 38-191 and 38-192 require the director to adjudicate
the allegations based on the director’s findings of fact.a s we
discussed in Langvardt v. Horton,38 this type of proceeding
clearly requires the Department to act in a quasi-judicial capac-
ity and constitutes a contested case under § 84-901(3).
[9] But under § 38-190(1), the parties may dispose of any
petition by “stipulation, agreed settlement, consent order, or
similar method” at any time before the director enters an order.
if the director accepts a settlement, the settlement becomes
the basis of the director’s order.t hus, if the parties dispose of
a disciplinary petition through an agreed settlement before a
hearing, as in this case, then, under § 38-190(1), the proceed-
ing is not one required by law or constitutional right to be
determined after an agency hearing. Because this was not a
contested case, the privilege would apply to the Department’s
underlying complaints and investigatory records.
36 See § 38-1,127.
37 Kaplan v. McClurg, 271 Neb. 101, 710 N.W.2d 96 (2006), citing Stoneman
v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998).
38 Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998).
StetSoN v.S ilveRmaN 	401
Cite as 278 Neb. 389

Having 	disposed 	of 	Rankin’s 	arguments 	and 	Judge
Silverman’s application of the statutes, we turn to the heart
of the inquiry: Stetson’s argument that Judge Silverman had
a clear legal duty to protect these documents from discovery
under § 38-1,106. We view the dispositive issue, however, as
whether Stetson could invoke the privilege.
the Nebraska rules of evidence set forth most of the com-
monly recognized evidentiary privileges.39 For privileges related
to confidential matters, as in this case, an evidentiary privilege
may generally be asserted in two ways: (1)t he holder of the
privilege, or a person authorized to act on behalf of the holder,
can assert the privilege, or (2) the other party to a confidential
communication can assert the privilege if the other party is
doing so on the holder’s behalf. Courts apply a similar rule
regarding the constitutional privilege against self-incrimination:
the privilege must be claimed by the witness who is the holder
of the privilege, not a party opposing admission of the evi-
dence.40a nd courts have applied the same standing rule against
other types of privileges.41 Stetson was not a party to the confi-
dential matters privileged by § 38-1,106; he was the subject of
the investigation.a s previously stated, the privilege did not run
to Stetson.a nd, obviously, as the subject of the investigation,
he was not asserting the privilege on the Department’s behalf.
therefore, Stetson has failed to clearly and conclusively show
that Judge Silverman had a duty to protect the information in
the absence of the Department’s claiming a privilege under
§ 38-1,106. We next consider whether the relevancy require-
ment under rule 26(b) precluded Rankin’s discovery of further
information regarding Stetson’s misconduct.
relevanCy for disCovery is broader
tHan relevanCy for trial
the relators contend that we should issue a peremptory writ
of mandamus against any further discovery of the facts related
to Stetson’s discipline, because the information is irrelevant,
39 See Neb. Rev. Stat. §§ 27-503 to 27-510 (Reissue 2008).
40 See U.S. v. Ortega, 150 F.3d 937 (8th Cir. 1998).
41 See 1m cCormick one vidence § 73.1 (6th ed. 2006).
402 	278N eBRaSKaR ePoRtS

highly prejudicial, and inadmissible at trial. Rankin contends
that Stetson’s admitted unfitness to practice medicine at the
time he was treating Rankin is discoverable and relevant. She
argues that she would have asked different questions at his first
deposition if she had known of his sexual misconduct. She also
argues that further discovery of his unprofessional conduct
could lead to other admissible evidence whether his medical
judgment was impaired.
as stated, under rule 26(b)(1), information sought through
discovery must also be “relevant to the subject matter involved
in the pending action.”t his requirement differs significantly
from the relevancy test for admission of evidence at trial: hav-
ing a tendency to make the existence of any fact at issue more
or less probable.42m oreover, under rule 26(b)(1), the inadmis-
sibility of the information at trial is not ground for objection if
the information “appears reasonably calculated to lead to the
discovery of admissible evidence.”
[10] Under the same language of Nebraska’s rule 26, many
courts have held that relevancy at the discovery stage, when
the issues are not clearly defined, is construed more broadly
than relevancy at trial.43 We agree.t his reasoning is consistent
with our recognition that discovery rules are broadly written to
permit discovery.44
Stetson principally relies on a criminal case in which the
Wisconsin Supreme Court affirmed the trial court’s order that
excluded 	impeachment 	evidence 	against 	the 	prosecution’s
expert witness.45t he evidence would have shown that the
psychiatrist was facing criminal charges related to his sexual
abuse of patients when he testified that the defendant was not
suffering from a mental disease when he killed two people.t he
defendant argued that the prosecution had opened the door on
the psychiatrist’s character and that the evidence was relevant
42 See Neb. Rev. Stat. § 27-401 (Reissue 2008).
43 See 8 Charlesa lan Wright et al., Federal Practice and Procedure § 2008
(2d ed. 1994 & Supp. 2009).
44 See State ex rel. Acme Rug Cleaner v. Likes, 256 Neb. 34, 588 N.W.2d 783
(1999).
45 See State v. Lindh, 161 Wis. 2d 324, 468 N.W.2d 168 (1991).
StetSoN v.S ilveRmaN 	403
Cite as 278 Neb. 389

to show bias and for character impeachment.t he Wisconsin
Supreme Court rejected both arguments. Regarding character
impeachment, the court concluded that the evidence was irrele-
vant to the psychiatrist’s reputation for truth or veracity or his
abilities as an expert witness.
We note, however, that the Seventh Circuit later held in a
habeas action that the evidentiary ruling violated the defend-
ant’s Confrontation Clause rights.46t he defendant should have
been permitted to impeach the psychiatrist with evidence that
he was about to lose his license and faculty position at a uni-
versity, and possibly go to prison.t he court reasoned that the
evidence was relevant to show bias for the State, but mostly to
counter the prosecutor’s misleading evidence that the psychia-
trist was a witness of impeccable credentials and high moral
standing in the community.
While we are not dealing with a Confrontation Clause issue,
we find the Seventh Circuit’s reasoning regarding relevancy
persuasive. We have recognized that parties have a right to dis-
cover information that might impeach a witness.47a nd we have
set out the purposes of the discovery process as follows:
the primary purpose of the discovery process is to
explore all available and properly discoverable informa-
tion to narrow the fact issues in controversy so that a
trial may be an efficient and economical resolution of
a dispute. . . .t he discovery process also provides an
opportunity for pretrial preparation so that a litigant may
conduct an informed cross-examination. . . .m oreover,
pretrial discovery enables litigants to prepare for a trial
without the element of an opponent’s tactical surprise,
a circumstance which might lead to a result based more
on counsel’s legal maneuvering than on the merits of
the case.48
46 See Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997).
47 See State ex rel. Acme Rug Cleaner, supra note 44. See, also, 8 Wright et
al., supra note 43, § 2015.
48 Paulk v. Central Lab. Assocs., 262 Neb. 838, 846, 636 N.W.2d 170, 177
(2001) (citations omitted).
404 	278N eBRaSKaR ePoRtS

Clearly, some of the information that Rankin seeks through
discovery, i.e., the reason for Stetson’s surrender of his licens-
ure, is public information. But we cannot say at the discovery
stage that she could not obtain further information that would
be relevant to Stetson’s credibility or a misleading character-
ization of him at trial. Nor can we rule out her obtaining infor-
mation that would be relevant to showing his medical judgment
was impaired at the time he treated Rankin. But we emphasize
that we are not commenting on whether this information is
admissible at trial.
CoNClUSioN
We conclude that the relators have failed to meet their bur-
den of showing clearly and conclusively that they are entitled
to quash discovery of information regarding Stetson’s sur-
render of his license.i n addition, they do not have standing
to quash a subpoena directed at the Department to obtain its
records. We therefore deny their request for a peremptory writ
of mandamus ordering Judge Silverman to vacate his discov-
ery order.
peremptory Writ denied.
mCC ormaCK, J., participating on briefs.
StetSoN v.S ilveRmaN 	405
Cite as 278 Neb. 389