IN RE: B.M. (2024)

I agree with the Court's disposition of this case. I write separately only to remind military trial judges that they have the tools available to them in the Manual for Courts-Martial, United States, to address the issues arising from a request for records of diagnoses or treatment plans of victim witnesses who have been or are being treated by a mental health provider. In United States v. Mellette, this Court held that “diagnoses and treatments contained within medical records are not themselves uniformly privileged under M.R.E. 513.” 82 M.J. 374, 375 (C.A.A.F. 2022). The Court's majority went on to clarify that “documents that are not themselves communications may be partially privileged to the extent that those records memorialize or otherwise reflect the substance of privileged communications.” Id. at 379.

Before pursuing a determination on a motion to compel records of diagnoses and treatment, the military judge must be mindful that, although such records might not be privileged, they touch upon a patient's medical privacy interests. Considering such interests, the military judge should first look to Rule for Courts-Martial (R.C.M.) 703(e)(1): “Each party is entitled to the production of evidence which is relevant and necessary.” Thus, the party requesting production must first establish that the requested records exist and that they are relevant, not cumulative, and would contribute to the presentation of the party's case in some positive way on a matter in issue. R.C.M. 703(e)(1) Discussion. Assuming the defense can shoulder this burden, the military judge must determine where the records are located and a process for obtaining them. At this point, it may not yet be known whether the records requested are partially privileged or not privileged at all as described in Mellette. The military judge may wish to consult the regulation of discovery guidance provided in R.C.M. 701(g)(2). There she may find authority to deny, restrict, or defer discovery or inspection of records “or make such other order as is appropriate.” Id. Further, “upon motion by a party, the military judge may review any materials in camera, and permit [a] party to make a showing ․ in writing to be inspected only by the military judge in camera.” Id.

This guidance suggests that the privilege holder, with the assent of a party, might simply ask the military judge to examine the health records to determine whether there are nonprivileged records of diagnoses and treatment. However, the hope would be to proceed in a manner that relieves the military judge of the burden of wading through what might be a high volume of mental health documents. Other, more efficient means might be available. For instance, the military judge may ask the parties and the privilege holder whether they can reach a stipulation of fact concerning any mental health diagnoses or treatment the patient may have received. In the alternative, the parties could be amenable to a stipulation of expected testimony of the therapist. Finally, the military judge could explore the parties’ interest in developing interrogatories for the therapist.

It is not my intent to mandate how military trial judges should approach the issue of mental health records in light of Mellette. Nor can I pretend to anticipate the innumerable issues that might otherwise arise in a given case. I simply wish to reiterate that, whatever process is decided upon, it should remain sensitive to the fact that mental health patients have a medical privacy interest beyond whether certain information is privileged.

Judge SPARKS, with whom Judge JOHNSON joins, concurring.