Loyning v. Potter

553 P.3d 128

2024 WY 82

Wade LOYNING, Appellant (Petitioner),

v.Neisha POTTER and Fern Ridge Counseling, Appellees (Respondents).

S-23-0237

Supreme Court of Wyoming.

August 1, 2024

Appeal from the District Court of Park County, The Honorable Bill Simpson, Judge

Representing Appellant: Austin Waisanen, Burg Simpson Eldredge Hersh & Jardine, P.C., Cody, Wyoming.

Representing Appellees: Thomas P. Keegan, Keegan & Krisjansons, P.C., Cody, Wyoming.

Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, JJ.

JAROSH, Justice.

[¶1] Neisha Potter and Fern Ridge Counseling (collectively referred to as "Therapist") filed a motion to quash Wade Loyning’s (Father) foreign subpoena duces tecum demanding production of his seven-year-old child’s (Child) therapy records. Without citing any statutory or procedural basis to withhold Child’s therapy records from Father, the district court partially quashed the subpoena based upon Child’s "best interests." Because Wyoming law does not currently recognize a child’s best interests as a reason to deny a parent access to a child’s therapy records, we reverse and remand for the district court to issue an order denying, in full, Therapist’s motion to quash Father’s subpoena.

ISSUE

[¶2] The dispositive issue for this appeal is: Did the district court abuse its discretion when it partially granted Therapist’s motion to quash Father’s subpoena of Child’s therapy records based upon Child’s best interests?

FACTS

[¶3] Child lived with her mother (Mother) in Park County, Wyoming, and was counseled by Therapist there. Father and Mother were, however, involved in a custody dispute over Child in Montana. Under the applicable Montana custody order, each parent had "[a] full independent right of access to all records and information pertaining to the minor child, including but not limited to medical [records]" and was "permitted to independently consult with any and all professionals involved with the child." Father served a Montana subpoena duces tecum upon Therapist, demanding she produce the "complete treatment file of [Child] including dates of treatment, diagnosis, reports, and notes of observations including those of the parent[ ]s, family members, etc."

[¶4] Therapist filed a motion to quash the subpoena in the district court in Park County on the ground Father was requesting counseling records that were privileged and confidential pursuant to both Wyo. Stat. Ann. § 33-38-113 and the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. §§ 1320d - 1320d-9. See 45 C.F.R. §§ 164.500 - 164.535. She also claimed disclosure of the records "would be contrary to the minor child’s best interests and would destroy the safe place that the minor child has established for herself in counseling." After two hearings, the district court ruled Father was entitled to all the Child’s therapy records except Therapist’s "treatment notes, interviews, notes of impressions, or process notes." The district court explained its decision to deny Father access to the notes and interviews as "err[ing] on the side of caution with regard to the best interests of the minor child." It did not provide any other basis for the denial. Father filed a timely notice of appeal.

STANDARD OF REVIEW

[1–4] [¶5] We generally review a district court’s ruling on a motion to quash a subpoena for abuse of discretion. Hathaway v. State, 2017 WY 92, ¶ 43, 399 P.3d 625, 636 (Wyo. 2017); Schreibvogel v. State, 2010 WY 45, ¶ 12, 228 P.3d 874, 880 (Wyo. 2010). Similarly, a district court’s ruling that information is protected from disclosure by a statutory privilege is reviewed for abuse of discretion. See WyoLaw, LLC v. Off. of Att’y Gen., Consumer Prot. Unit, 2021 WY 61, ¶ 49, 486 P.3d 964, 977 (Wyo. 2021) ("We review a district court’s discovery rulings, including its ruling on a claim of privilege, for an abuse of discretion.") (citing Herrick v. Jackson Hole Airport Bd., 2019 WY 118, ¶ 11, 452 P.3d 1276, 1280 (Wyo. 2019)) (other citation omitted). When applying the abuse of discretion standard of review, we examine " ‘the reasonableness of the [district] court’s choice,’ in ruling on the matter." Schreibvogel, ¶ 12, 228 P.3d at 880 (quoting Gould v. State, 2006 WY 157, ¶ 8, 151 P.3d 261, 264 (Wyo. 2006)). However, issues regarding the proper interpretation of court rules and statutes are matters of law we review de novo. See McCallister v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2022 WY 66, ¶ 9, 510 P.3d 1051, 1055 (Wyo. 2022) (interpretation of Wyoming rules and regulations are matters of law reviewed de novo); Tarver v. City of Sheridan Bd. of Adjustments, 2014 WY 71, ¶ 20, 327 P.3d 76, 83 (Wyo. 2014) ("Interpretation of statutes [and] administrative regulations … is a matter of law, which we review de novo.").

DISCUSSION

Subpoena Requesting Privileged Information and Motion to Quash

[¶6] The Park County District Court Clerk issued a foreign (Montana) subpoena duces tecum to Father, which commanded Therapist to produce the records of her therapy with Child. See Wyoming Rule of Civil Procedure (W.R.C.P.) 28(c)(2)(A)-(B) (a party may obtain interstate discovery by requesting the pertinent Wyoming clerk of court issue a "foreign subpoena"). After Father served the subpoena, Therapist filed a W.R.C.P. 28(c)(5) and W.R.C.P. 45(c)(3)(A)(iii) motion to quash, claiming the records were privileged under § 33-38-113 and HIPAA, and disclosure to Father was not in Child’s best interests. See W.R.C.P. 28(c)(5) ("An application to the court … to … quash[ ] or modify a subpoena issued by a clerk of court under paragraph (c)(2) of this rule must comply with the rules or statutes of this state and be submitted to the court for the county in which discovery is to be conducted:"); W.R.C.P. 45(c)(3)(A)(iii) ("On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it … requires disclosure of privileged or other protected matter and no exception or waiver applies[.]").

[5] [¶7] The district court granted Therapist’s motion to quash in part and denied it in part. Recognizing Child’s therapy records were generally privileged but the privilege could be waived by Father, the court required Therapist to disclose all of Child's therapy records, except her "treatment notes, interviews, notes of impressions or process notes." The court did not identify any provision in Wyoming law allowing such a restriction but decided to do so to protect Child’s "best interests."

[¶8] A legal privilege is generally described as " ‘a limitation on a court’s ability to compel testimony regarding confidential communications that occur in certain relationships. 8 Wigmore, [Evidence] § 2285 at 527 [(McNaughton rev. 1961)].’ " Cave v. State, Dep’t of Fam. Servs. (Matter of GAC), 2017 WY 65, ¶ 37, 396 P.3d 411, 420 (Wyo. 2017) (quoting Cooper v. State, 2002 WY 78, ¶ 8, 46 P.3d 884, 888 (Wyo. 2002), and Curran v. Pasek, 886 P.2d 272, 275 (Wyo. 1994)) (some quotation marks omitted). W.R.C.P. 45 and § 33-38-113(a) govern subpoenas and claims of therapist-client privilege in Wyoming.

[6–8] [¶9] We interpret statutes to give effect to the legislature’s intent by using the plain meaning of clear and unambiguous statutory language. Matter of Longwell, 2022 WY 56, ¶ 21, 508 P.3d 727, 733 (Wyo. 2022) (citing Bangs v. Schroth, 2009 WY 20, ¶ 32, 201 P.3d 442, 456 (Wyo. 2009)) (other citations omitted). See also, Clark v. State ex rel. Dep’t of Workforce Servs., 2016 WY 89, ¶ 13, 378 P.3d 310, 314 (Wyo. 2016) ("[w]hen interpreting statutes, our goal is to determine the legislature’s intent"). To discern the legislature’s intent, we interpret "‘each statutory provision in pari materia, giving effect to every word, clause, and sentence according to their arrangement and connection.’ " TW v. State (In re JB), 2017 WY 26, ¶ 12, 390 P.3d 357, 360 (Wyo. 2017) (quoting Cheyenne Newspapers, Inc. v. Bd. of Trs. of Laramie Cnty. Sch. Dist. No. One, 2016 WY 113, ¶ 10, 384 P.3d 679, 683-84 (Wyo. 2016)) (other citations and quotation marks omitted). We also apply the principles of statutory interpretation when determining the meaning of court rules, focusing on the plain meaning of the language used in the rule. Raczon v. State, 2021 WY 12, ¶ 8, 479 P.3d 749, 751 (Wyo. 2021) (citing Gas Sensing Tech. Corp. v. New Horizon Ventures Pty. Ltd., 2020 WY 114, ¶ 26, 471 P.3d 294, 299 (Wyo. 2020)).

[¶10] W.R.C.P. 45(c)(3)(A) plainly lists the circumstances under which the court shall quash or modify a subpoena, including if it "requires disclosure of privileged or other protected matter and no exception or waiver applies." W.R.C.P. 45(c)(3)(A)(iii). Separately, W.R.C.P. 45(c)(3)(B) lists the circumstances under which the court may quash or modify a subpoena. Neither W.R.C.P. 45(c)(3)(A) nor W.R.C.P. 45(c)(3)(B) states a subpoena for a child’s records shall or may be quashed because disclosure of the information would be contrary to a child’s best interests.

[¶11] Section 33-38-113 establishes a statutory "privilege for information communicated by a patient or client to professional counselors, marriage and family therapists, social workers, and chemical dependency specialists …" Cave, ¶ 37, 396 P.3d at 420. See also, Vit v. State, 909 P.2d 953, 957-58 (Wyo. 1996) (recognizing the statutory privilege for communications between a therapist and client). Specifically, § 33-38-113(a) states:

In judicial proceedings … a patient or client, or his guardian or personal representative, may refuse to disclose and may prevent the disclosure of confidential information … communicated to [a therapist] for the purpose of diagnosis, evaluation or treatment of any mental or emotional condition or disorder. … [A therapist] shall not disclose any information communicated as described above in the absence of an express waiver of the privilege except in [circumstances not relevant in this case].

[9] [¶12] The legislative purpose in granting a statutory...