Air Force Court of Criminal Appeals

In re HVZ. "On 28 April 2023, the Defense moved the trial court to “immediately secure and produce” Petitioner’s “medical records and non-privileged materials within mental health records, specifically unprotected health information as described under United States v. Mellette[, 82 M.J. 374 (C.A.A.F. 2022)],” in the possession of the Government." The MJ had granted some discovery.

On 16 May 2023, pursuant to Article 6b, Petitioner requested this court issue a writ of mandamus and stay of proceedings in the pending court-martial of United States v. Technical Sergeant MFK (the Accused). Petitioner requests this court “vacate the trial court’s decision [dated 11 May 2023] to order disclosure of extensive medical records” of Petitioner. On 19 May 2023, this court issued an order staying the court-martial proceedings and staying further implementation of the trial court’s 11 May 2023 order to the 56th Medical Group (56 MDG), pending further order by this court. This court ordered briefs and [h]aving considered [everything], we deny the petition. 

The MJ had decided

to grant the defense motion in part. The military judge’s findings of fact included, inter alia, that Petitioner was the “primary witness against the [A]ccused” on each of the charged offenses; that Petitioner and the Accused were married at the time of the alleged offenses; and that Petitioner had told multiple individuals she had sought medical and mental health treatment due to injuries allegedly caused by the Accused, and had spoken with Family Advocacy personnel. The military judge noted the responses to the defense motion from the Government and from Petitioner, but stated he had not considered the latter due to Petitioner’s “lack of standing before this trial court,” citing In re HK.
. . .
In furtherance of his ruling, on 11 May 2023 the military judge also issued a separate order to the 56 MDG located at Luke AFB to “provide any medical, mental health, or Family Advocacy records [pertaining to Petitioner] maintained by the [56 MDG] or any subordinate clinic.” The military judge directed the 56 MDG to work with a medical law attorney (ed. note, which helps avoid the problem we saw in In re B.M.), to “ensure any and all matters subject to privilege under Military Rule of Evidence 513 are redacted prior to providing the information” to trial counsel “as soon as practicable and no later than 1700 local on 24 May 2023.” The military judge further ordered that only the Prosecution and Defense (to include appointed expert consultants), as well as Petitioner and her Victims’ Counsel, were to have access to the disclosed records.

One of the AV's issues was "whether the military judge incorrectly analyzed the Defense’s motion as a matter of discovery governed by R.C.M. 701(a)(2)(A) rather than a matter of production governed by R.C.M. 703(g)(3)(C)(ii)." The court discusses the differences between the two defense rights and the standard of review to be applied under each rule. The court concludes here that R.C.M. 701 is the correct rule at issue.

Petitioner contends, the military judge erroneously applied the less demanding “relevance” disclosure standard of R.C.M. 701(a)(2)(A)(i) rather than the more stringent “relevant and necessary” production standard of R.C.M. 703(e)(1). Petitioner contends the military judge’s asserted error also denied her the right to notice and an opportunity to challenge the disclosure afforded to victims by R.C.M. 703(g)(3)(C)(ii) with respect to records “not under the control of the Government.” We again find Petitioner has failed to demonstrate the military judge clearly and indisputably erred.
. . . 
​Whether any of the records are in fact relevant and to be disclosed to the Defense is effectively yet to be determined. At this stage, the military judge has required trial counsel to review the non-privileged records provided by the 56 MDG and to provide to the Defense only those trial counsel determine to be subject to disclosure under R.C.M. 701. Those records the 56 MDG identified as privileged, and those records trial counsel determined to be not subject to discovery, are to be identified to the Defense and military judge without disclosure at this point—potentially to be the subject of further proceedings

On a practice note, it may be time for MJs to require a Vaughn Index. (Some of us already do that as part of our standard discovery requests, see sample below.) A VI could be part of the Trial Management Order when a MJ is discussing the scheduling of events. A Vaughn Index would help clarify what's to be litigated, as the military judge needed to do here. Instead of having to figure out what was at issue during the 39a, why not require that in advance and give the MJ time to apply more thought and research.

Declination to Produce or Disclose.

a.  If any information responsive to this request is not produced because of a claim of privilege, identify each item that would fall within the request and/or information affected, the basis of the privilege, and the current location of each document or information (i.e. a Vaughn Index, see Vaughn v. Rosen, 157 U.S. App. D.C. 340; 484 F.2d 820 (DC Cir. 1973),  see also United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).

In this case, at the time of the hearing,

The military judge’s ruling and order essentially did three things: (1) required the 56 MDG, with the assistance of a medical law attorney, to identify Petitioner’s medical records, mental health records, and Family Advocacy records within the possession or control of the 56 MDG or subordinate clinics, and provide the non-privileged records to trial counsel; (2) required trial counsel to notify the military judge and Defense of the existence of records that were privileged or otherwise not subject to disclosure under R.C.M. 701 (i.e., relevant to the preparation of the Defense); and (3) required trial counsel to provide the discoverable records to the Defense.