Mom Entitled to Court Exhibits for Potential Malpractice Case

Tennessee case summary on protective orders in divorce.

Jennifer Benke Bottorff v. Christian Todd Bottorff

The husband and wife in this Davidson County, Tennessee, case were divorced in 2013.  The wife was named the primary residential parent of the two minor children, and she was awarded 223 days per year of parenting time.

In 2017, the father filed an emergency motion for change of custody.  He made various arguments, including that the wife had been too permissive as a parent.

The father’s petition included certain records from a clinical psychologist who had conducted sessions with the parties and their daughter.  The husband asked to have those documents placed under seal, and the wife requested a full copy of the records.

The wife was given the records, but there was a protective order regarding the records.  The wife later decided to file a malpractice case against the psychologist, and requested to be allowed to share them with her attorney in the malpractice case.  She was allowed to do so, on the condition that her attorney and experts keep them strictly confidential.

After the hearing, however, the court ordered that the documents must be returned and destroyed.  The mother appealed this order to the Tennessee Court of Appeals.

The appeals court noted that two standards applied:  Documents produced during discovery would be reviewed under one standard, with a different standard applying to documents admitted as exhibits.  It first turned to the discovery documents.  It noted that there is a balancing test to be applied in deciding whether a protective order should apply.

In this case, the lower court had made the protective order to protect the interests of the minor child.   It also pointed out that the husband had never waived the psychologist-client privilege.

The appeals court zeroed in on the fact that the husband had relied upon the protective order when making disclosure in the first place.   However, there were no findings by the trial court concerning how much the father had relied upon those orders.  It believed that this information was necessary to decide the case.  Accordingly, it ordered the case remanded for the trial court to make this determination.

The appeals court then turned to the trial exhibits, and noted that there’s a general right to inspect and copy public records and documents.  It went on to point out that the lower court, Judge Phillip R. Robinson, had not articulated any compelling reason to deny this general ability.  It noted that the records contained no confidential information.  Therefore, it reversed the lower court’s order with respect to the trial exhibits.  It did note, however, that there might be need for a continuing protective order.

For these reasons, the Court of Appeals reversed and remanded the case.

No. M2019-00676-COA-R3-CV (Tenn. Ct. App. May 27,  2020).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.