DR. SHERA D. BRADLEY, Petitioner,
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE DOUGLAS W. HERNDON, DISTRICT JUDGE, Respondents, and DONTAE HUDSON, AN INDIVIDUAL; AND THE STATE OF NEVADA, BY AND THROUGH STEVEN B. WOLFSON, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR THE COUNTY OF CLARK, Real Parties in Interest.
petition for a writ of prohibition or mandamus challenging a
district court order requiring petitioner to produce
counseling records for in camera review.
Kathleen Bliss Law PLLC and Kathleen Bliss and Jason Hicks,
Las Vegas, for Petitioner.
Paul Laxalt, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy
District Attorney, and Ofelia L. Monje, Deputy District
Attorney, Clark County, for Real Party in Interest State of
A. Connolly, Ltd., and Karen A. Connolly, Las Vegas, for Real
Party in Interest Dontae Hudson.
Offices of Franny Forsman and Franny A. Forsman, Las Vegas;
Kice Law Group, LLC, and Stephanie B. Kice, Las Vegas, for
Amicus Curiae Nevada Attorneys for Criminal Justice.
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
49.209 provides a general rule of privilege between
psychologist and patient, subject to enumerated exceptions
outlined in NRS 49.213. In this opinion, we address whether
the privilege applies when a criminal defendant seeks records
related to a patient who is court-ordered to partake in
therapy, and whether, in this matter, an exception to the
privilege exists based on state or federal law or the
privilege being waived. Because we hold the privilege applies
in this case and there was no applicable exception or waiver
of the privilege, the district court's order mandating
pretrial, in camera review of the privileged records
is in error, and we grant the requested writ of prohibition.
AND PROCEDURAL HISTORY
minor, was arrested while soliciting prostitution and was
placed on probation through the juvenile court. As a
condition of probation, J.A. was required to attend and
complete counseling with petitioner Dr. Shera Bradley. Based
on statements made by J.A. to the police, the State charged
defendant/real party in interest Dontae Hudson with
first-degree kidnapping, sex trafficking of a child under the
age of 16, living from the earnings of a prostitute, and
child abuse, neglect, or endangerment.
criminal case, Hudson filed a motion for discovery, which
included requests for J.A.'s counseling, juvenile, and
delinquency records. Hudson argued that the records were
relevant in determining J.A.'s competence and
credibility. The State opposed the motion, arguing that it
was prohibited from obtaining and distributing confidential
records. The district court ordered J.A.'s complete
juvenile and delinquency records be provided for in
camera review. An amended order required that Dr.
Bradley disclose counseling records pertaining to J.A. for
in camera review, Dr. Bradley filed a motion to
vacate the amended order, and Hudson filed a motion to compel
Dr. Bradley to adhere to the amended order. The district
court denied Dr. Bradley's motion to vacate and ordered
the counseling records be submitted for in camera
review but stayed the order, allowing Dr. Bradley to file the
instant writ petition.
for prohibition relief should be entertained
Bradley seeks alternative relief in the form of a writ of
mandamus or prohibition. Although "[t]his court has
previously issued a writ of mandamus compelling a district
court to vacate a discovery order, " Wardleigh v.
Second Judicial Dist. Court, 111 Nev. 345, 350, 891 P.2d
1180, 1183 (1995), we have held "that prohibition is a
more appropriate remedy for the prevention of improper
discovery than mandamus, " id. Accordingly, we
consider Dr. Bradley's petition under the prohibition
extraordinary relief is not available to challenge discovery
orders because "[t]he law reserves extraordinary writ
relief for situations where there is not a plain, speedy and
adequate remedy in the ordinary course of law, " and
discovery orders can be adequately challenged on appeal from
a final judgment. Mitchell v. Eighth Judicial Dist.
Court, 131 Nev., Adv. Op. 21, 359 P.3d 1096, 1099 (2015)
(internal quotation marks omitted); see also NRS
34.330. However, "this court has issued writs to prevent
improper discovery orders compelling disclosure of privileged
information." Coyote Springs Inv. v. Eighth Judicial
Dist. Court, 131 Nev., Adv. Op. 18, 347 P.3d 267, 270
(2015). Here, Dr. Bradley is not a party to the criminal case
and therefore will not have standing to seek review on appeal
from a final judgment, and she seeks to prevent the
disclosure of allegedly privileged material based on the
psychologist-patient privilege. Therefore, we elect to
exercise our discretion and entertain the petition to
determine whether the communications between Dr. Bradley and
J.A. are privileged and whether pretrial disclosure of
J.A.'s counseling records is required by state or federal
law or because the privilege has been waived.
Bradley argues that the sought-after counseling records are
privileged because they concern treatment she provided as
J.A.'s psychologist, and that she has asserted the
privilege on behalf of J.A. Dr. Bradley also claims that none
of the enumerated exceptions to the psychologist-patient
privilege are applicable and alleges that disclosure of the
counseling records would jeopardize the open but private
nature of communication between therapist and patient, a
cornerstone to treatment. Hudson argues that the counseling
records are not privileged due to the mandatory nature of
J.A.'s counseling or due to JA.'s treatment being an
element of a claim or defense, that disclosure is required
under state law and federal constitutional law, and that the
privilege has been waived by disclosures of confidential
information to third parties.
psychologist-patient privilege applies to Dr, Bradley and
J.A.'s confidential communications and records
49.209 outlines the psychologist-patient privilege as a
patient having the ability "to refuse to disclose and to
prevent any other person from disclosing confidential
communications between the patient and the patient's
psychologist or any other person who is participating in the
diagnosis or treatment under the direction of the