State v. Wardle

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                          Appellee,
                             v.
                  DOUGLAS LAWRENCE WARDLE,
                          Appellant.

                             Opinion
                         No. 20230761-CA
                     Filed December 12, 2024

           Third District Court, Salt Lake Department
               The Honorable Amber M. Mettler
                          No. 211908187

                Sarah J. Carlquist and Amy Powers,
                     Attorneys for Appellant
               Sean D. Reyes and Jonathan S. Bauer,
                     Attorneys for Appellee

    JUDGE RYAN M. HARRIS authored this Opinion, in which
    JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1     The State has charged Douglas Lawrence Wardle with
raping his then-ten-year-old niece (Niece) on two occasions in
2001. The charges were filed in 2021, soon after Niece reported the
rapes to the police, telling them that she had “blocked” the
incidents “out of her mind” for many years and had only
“recently remembered” them after “experiencing medical issues”
and undergoing “therapy.” Prior to trial, Wardle filed a motion
asking the district court to undertake an in-camera review of
Niece’s medical and therapy records generated around the time
of her disclosures to police. The district court denied that motion,
                           State v. Wardle


concluding that Niece’s records were privileged and were not
subject to any exception to the privilege.

¶2     Wardle sought permission to take an interlocutory appeal
from the district court’s order denying his motion. We granted
Wardle permission to do so, and we now address the merits of his
appellate challenge. We conclude that, on this record, Wardle has
made the showing required to establish an exception to the
privilege, and we therefore hold that the district court erred by
determining that the requested records were privileged.
Accordingly, we remand the case for further proceedings.


                         BACKGROUND 1

¶3     In April 2020, Niece contacted a local police officer (Officer)
by telephone and stated that Wardle had raped her in 2001, when
she was about ten years old. According to the written report
Officer made of the call, Niece “said she blocked th[e] incident out
of her mind and recently remembered it after having experienced
medical issues.” Niece stated that, in 2001, Wardle had come to
live with her family for approximately three months. During that
time, Niece’s parents apparently worked long hours, and Niece
told Officer that on one occasion when she was home alone with
Wardle, he entered her bedroom while she was reading a book
and raped her. She reported that, in the process, Wardle had



1. Because this case comes to us on interlocutory appeal and there
has not yet been a trial, our recitation of the facts comes from
relevant case documents. It should go without saying that none of
these facts have been proved in court beyond a reasonable doubt,
and until then, Wardle retains the presumption of innocence. See
Utah Code § 76-1-501(1) (“A defendant in a criminal proceeding
is presumed to be innocent until each element of the offense
charged against him is proved beyond a reasonable doubt”).


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                          State v. Wardle


strangled her and that she had “ended up passing out.” She also
remembered that she had been wearing a dress that day.

¶4     About a month later, Niece called Officer to provide more
information about the incident she had reported earlier. She
indicated that she had remembered these additional things on the
same night as her previous phone call to Officer and that she
“wrote them down” at that point, but that she “took a few days to
call” back because she was finding the situation “difficult to cope
with.” During this second call, Niece explained that she had been
wearing a blue shirt and bell-bottom jeans, not a dress. She
remembered the name of the book she had been reading—a
fantasy book—and that she had been telling Wardle about the
story. She stated that the rape occurred at around four or five in
the afternoon and that her blinds were partially open. She
reported that Wardle had unbuttoned her pants to see if she was
“wearing pretty underwear” and then started to take off her
pants. She stated that, at this point, she had tried to move away,
but that Wardle had pulled on her left leg, causing her to hit her
head and feel dizzy. Niece also reported that she saw and
recognized “a familiar man” outside her window and tried to call
for help, but that the man could not hear her. She stated that she
tried multiple times to push Wardle off her but that she was
unable to do so. Officer noted in his report that Niece was “very
emotional” while describing the events.

¶5     Some nine months later, in February 2021, Niece called
Officer again. Officer’s report of this call states that Niece “told
[Officer] that she had been going to therapy and ha[d]
remembered more about her childhood experiences with
[Wardle].” Niece stated that the rape she had reported in the first
two calls with Officer had been “the first time [Wardle] did
anything to her, but that she was raped more than this.” She told
Officer that she now “remember[ed] being raped in her mother’s
room and . . . being touched on the vagina through a cut hole [in]
her dancer pants while stretching in the front room.” Niece also


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                          State v. Wardle


said that Wardle made her wear her mother’s wedding ring, and
that she had kept a journal of what was happening but that
Wardle had “burned her journal over the kitchen sink.”

¶6      In August 2021, the State charged Wardle with two counts
of rape of a child, first-degree felonies. A few months later, the
district court held a preliminary hearing and bound Wardle over
for trial on both charges.

¶7     In October 2022, Wardle filed a motion asking “for
permission to serve a subpoena duces tecum, pursuant to a court
order, requiring production of medical/mental health records
pertaining to” Niece generated between March 2020 and March
2021, roughly the period in which Niece made her disclosures to
Officer. Wardle acknowledged the existence of a privilege, set
forth in rule 506 of the Utah Rules of Evidence, that protects
medical and mental health records. But Wardle asserted that an
exception to that privilege existed here because the records were
“relevant to an issue of the physical, mental, or emotional
condition of the patient . . . in [a] proceeding in which that
condition is an element of any claim or defense.” See Utah R. Evid.
506(d)(1)(A) (2022). 2 Wardle claimed that the “condition” at issue
was “the fact that [the memories] were recently recalled after
medical issues, which caused [Niece] to recall an alleged event
from twenty years prior.” Wardle then argued that the condition
is “germane to the identification defense—that [Niece] possibly
misidentified” Wardle as the abuser—and that the condition is
also “germane to a defense regarding her ability to testify
competently.” Wardle also argued that the condition is relevant
“to impeachment regarding motive.” Finally, Wardle asserted—

2. Rule 506 has since been amended, effective May 1, 2024.
Because both parties agree that the 2024 changes are not directly
relevant to the issues presented in this appeal, we apply the
version of the law in effect in 2022, at the time Wardle filed the
motion for in-camera review.


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                          State v. Wardle


pointing to the language Officer used in the reports indicating that
Niece had “blocked” her memories of the events and had only
“recently remembered” them after “experiencing medical issues”
and undergoing “therapy”—that “there is a reasonable certainty
that [Niece’s] records contain exculpatory evidence.”

¶8     The State filed no response to Wardle’s motion. But an
attorney representing Niece filed a memorandum in opposition to
the motion, asserting that Niece did not suffer from a physical,
mental, or emotional condition; that no such condition was an
element of any claim or defense; and that Wardle had not shown
that the sought-after records were reasonably certain to contain
exculpatory evidence.

¶9     At oral argument on his motion, Wardle clarified that he
was seeking only the medical and mental health records from the
time period during which (and just before) Niece was in contact
with police about the alleged incidents. Wardle argued that,
according to the police reports, the initial incident “came to light
because of [a] medical issue.” And he argued that, after Niece
attended therapy, “suddenly there is a new memory of a whole
new allegation,” and he pointed to language from the report
indicating that the therapy helped Niece “remember more details
about the allegations.” Wardle also argued that the “mental or
emotional condition” at issue was Niece’s “poor memory” and
that Niece indicated that the memories had suddenly surfaced
after medical issues and after therapy. Wardle stated that he was
seeking in-camera review of the records to “see what
inconsistencies or what concerns there are about her memory
about the event and the allegations,” and he indicated that he was
potentially interested in having an expert review the records.

¶10 In response, Niece’s attorney argued that Niece’s memory
issues do not qualify as a “condition” because “memory is always
going to be an issue, memory is not a diagnosable mental health
condition.” The attorney acknowledged that Wardle had “done a



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                           State v. Wardle


good job of narrowing down” the time period in his request, but
she argued that the request was nonetheless “not made with any
particularity” and that Wardle could not allege that the records
“contain . . . things that relate to [the] case.”

¶11 After argument, the court denied Wardle’s motion. The
court stated that, “while the request [was] somewhat limited as to
time[,] it [didn’t] specify a particular provide[r] or subject matter”
and was therefore “lacking the particularity required” by rule
14(b)(2) of the Utah Rules of Criminal Procedure. The court also
stated that Wardle “hasn’t shown [that Niece] suffers from a
physical, mental or emotional condition” because, in the court’s
view, a “poor memory of events alleged to have occurred some 20
years ago” does not qualify as a condition. The court also stated
that, even if Niece’s memory issues did qualify as a condition, that
condition is not relevant to Wardle’s defense. Finally, the court
concluded that Wardle “failed to show to a reasonable certainty
that the records . . . contain exculpatory evidence.” Later, the court
issued a written order memorializing its oral ruling.

¶12 Wardle timely filed a petition seeking permission to take
an interlocutory appeal from that order. We granted Wardle
permission to take such an appeal.


              ISSUE AND STANDARD OF REVIEW

¶13 Wardle presents one issue for our review: whether the
district court erred in determining that no exception to the rule
506 privilege applies here. 3 To the extent that “the existence of a
privilege . . . turns on a question of law, we review for


3. Notably, Wardle does not appeal the court’s alternative ground
for denial of his motion: that his request was not particular
enough to satisfy rule 14(b)(2) of the Utah Rules of Criminal
Procedure. We discuss the implications of this more fully below.


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                           State v. Wardle


correctness.” State v. Bell, 

, 

 (quotation
simplified). However, “we give deference to the district court’s
underlying fact finding and do not set those findings aside unless
they are clearly erroneous.” 

 (quotation simplified).


                            ANALYSIS

¶14 Utah’s evidentiary rules establish that “[a] patient has a
privilege, during the patient’s life, to refuse to disclose and to
prevent any other person from disclosing information that is
communicated in confidence to a physician or mental health
therapist for the purpose of diagnosing or treating the patient.”
Utah R. Evid. 506(b) (2022). All parties agree that the records
Wardle seeks in this case fall within the ambit of this privilege.

¶15 But the privilege has certain exceptions. One such
exception     provides    that   “no      privilege    exists”   for
“communications relevant to an issue of the physical, mental, or
emotional condition of the patient,” if the “condition is an element
of any claim or defense” made in the relevant “proceeding.” 

 R.
506(d)(1)(A). Wardle maintains that the records he seeks are
subject to this exception and that they are therefore discoverable
in this proceeding.

¶16 Our supreme court has instituted a three-part test to be
applied in cases in which records are sought under this exception.
First, the party seeking the records must show “that the patient
has a ‘physical, mental, or emotional condition.’” See Bell, 

 (quoting Utah R. Evid. 506(d)(1)). Second, the requesting
party must show that the identified condition is an element of a
claim or defense in the proceeding. 

 And third, the requesting
party “must also demonstrate that, with reasonable certainty,
exculpatory evidence exists in the [requested records] which
would be favorable to” the requesting party’s position. 

(quotation simplified). Our supreme court has instructed that



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                           State v. Wardle


“[t]his three-part showing is a sequential test,” meaning that “a
court must not proceed to the next step in the analysis if it
determines the [requesting party] failed to meet his or her burden
of proof at a previous point.” Id. ¶ 16.

¶17 The district court determined that Wardle could not make
the required showing on any of the three parts of the test. We
address each part, in turn, and conclude that Wardle has indeed
made the required showing at each step.

           I. Physical, Mental, or Emotional Condition

¶18 A “condition” for purposes of rule 506(d)(1)’s exception “is
not limited to diagnosable disorders or illnesses.” State v. Worthen,

, 

. Nevertheless, matters that are
merely “transitory or ephemeral,” such as “mere expressions of
emotion,” will not qualify as a “condition.” 

 With these
principles in mind, our supreme court has prescribed this
working definition of a mental or emotional “condition”: “A
mental or an emotional condition is a state that persists over time
and significantly affects a person’s perceptions, behavior, or
decision making in a way that is relevant to the reliability of the
person’s testimony.” 

 In Worthen, for instance, our supreme
court determined that an alleged victim’s “chronic and persistent”
“frustration with, and hatred toward her parents”—one of whom
she had accused of sexually abusing her—qualified as “an
emotional condition contemplated by” rule 506(d)(1). Id. ¶ 28
(quotation simplified). By contrast, in State v. Bell, our supreme
court determined that an alleged victim’s later willingness to talk
to investigators—after therapy and after initially refusing to
talk—was not a “condition” as contemplated by rule 506(d)(1).

, ¶¶ 21–22 (quotation simplified).

¶19 In Wardle’s view, the relevant “condition” in this case is
Niece’s “blocked” memory or, as he puts it, “her persistent
twenty-year inability to remember the incidents in question at



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all.” The State acknowledges, in response, that “true ‘recovered
memories’ . . . may well constitute a ‘condition’ under rule
506(d)(1),” but it asserts that this case is simply a “poor memory”
case and not a “recovered memories” case. The district court
appeared to align itself with the State’s current position, offering
its view that a “poor memory of events alleged to have occurred
some 20 years ago” does not qualify as a “condition.”

¶20 Wardle responds to these arguments by directing our
attention to Niece’s own words, as reflected in Officer’s reports.
As recounted in those reports, Niece did not simply have a “poor
memory” of the events in question, nor is there any indication that
she had simply been unwilling, over the years, to discuss
unpleasant events that had always been in her memory. Rather,
she indicated that she had entirely “blocked” the relevant
incidents “out of her mind” and had only “recently remembered”
them “after having experienced medical issues” and undergoing
“therapy.” As Wardle points out, Niece herself thus directly
linked her sudden ability to recall the earlier incidents to her
medical issues and, later, to her therapy visits.

¶21 We are persuaded that, on this record, Wardle has borne
his burden of demonstrating that Niece had a “physical, mental,
or emotional condition,” Utah R. Evid. 506(d)(1) (2022), that had
“persist[ed] over time” and appears to have “significantly
affect[ed her] perceptions . . . in a way that is relevant to the
reliability of [her] testimony,” see Worthen, 

. The
facts of this case, as relevant to the “condition” inquiry, are much
more similar to Worthen than they are to Bell. In this case, the
condition—the apparent inability to recall the incidents in
question 4—lasted for nearly two decades and is therefore far from

4. We do not purport to decide whether Niece’s condition
constitutes “repressed memory” as that term was used in Franklin
v. Stevenson, 

, 

. Regardless of the
                                                    (continued…)


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“transitory or ephemeral.” 

 And the condition, almost by
definition, appears to have “significantly affect[ed]” Niece’s
“perceptions” of her childhood interactions with Wardle “in a
way that is relevant to the reliability of” her eventual trial
testimony. See 

 On the record before us, this is not simply a case
of poor memory or initial unwillingness to discuss unpleasant
events. Accordingly, the district court erred in concluding that
this case does not involve a “condition,” as that term is used in
rule 506(d)(1).

                II. Element of a Claim or Defense

¶22 Once a court has established that the patient has a
condition, the next inquiry is whether that condition is “an
element of any claim or defense” being made by the parties in the
“proceeding.” Utah R. Evid. 506(d)(1)(A) (2022). In a criminal
case, a condition constitutes an element of a claim or defense if it
has the potential to “interject[] reasonable doubt into the elements
the State bears the burden to prove.” Worthen, 

.
Impeachment evidence can qualify as an “element of” a criminal
defendant’s defense, at least where that evidence goes to a specific
credibility issue and is not merely part of a challenge to “the
general credibility of the witness.” 

 ¶¶ 35–36.

¶23 In Worthen, as noted, our supreme court determined that
the alleged victim’s “anger and hatred” toward her parents was a
“condition” under rule 506(d)(1). Id. ¶ 28. In applying the second
element of the three-part test, the court analyzed the defendant’s
specific arguments, and it concluded that the defendant was not


label used to describe the situation, our holding is simply that an
alleged victim’s long-standing and complete inability, over the
course of many years, to recall incidents that the victim is later
able to remember only after medical or therapeutic consultation
and that later form the basis for criminal charges constitutes a
“condition” for purposes of rule 506(d)(1).


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                           State v. Wardle


“simply arguing [that he] didn’t do it, but rather [was] making the
claim that [the alleged victim] has a mental or emotional condition
of extreme hatred, which has caused her to fabricate abuse
allegations.” Id. ¶ 37 (quotation simplified). On these facts, the
court held that the condition in question—the alleged victim’s
hatred toward her parents—was indeed an element of the accused
parent’s defense to the State’s charges. Id. ¶¶ 35–36.

¶24 The situation here is similar. In this case, Wardle’s defense
involves more than a general criticism of Niece’s credibility. As
Wardle puts it, his “defense is not simply that he didn’t do it.”
Instead, his “defense is that [Niece’s] recovered memories aren’t
reliable given the circumstances.” On these facts, we agree with
Wardle that “the ability to test the reliability of [Niece’s]
recovered memories goes beyond a general challenge to [Niece’s]
credibility” and that therefore the condition in question—Niece’s
twenty-year inability to recall the events at issue—is an element
of Wardle’s defense to the State’s charges.

                     III. Reasonable Certainty

¶25 The third and final element of the three-part test is not
directly derived from the language of rule 506 but is instead
judicially created. See id. ¶ 15 (stating that rule 506(d)(1) has been
“interpreted” to “contain the additional requirement” of
reasonable certainty). Under this element of the test, the
requesting party “must show, with reasonable certainty, that the
sought-after records actually contain exculpatory evidence which
would be favorable to” the requesting party’s claims or defenses. 5


5. In State v. Bell, the defendant raised a constitutional challenge
to the reasonable certainty part of the test. 

, ¶¶ 23–32,

. Our supreme court did not reach the merits of that
challenge, but it stated that the defendant had articulated “an
important concern” that the reasonable certainty test “may violate
                                                       (continued…)


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                            State v. Wardle


State v. Blake, 

, 

 (quotation simplified);
see also Worthen, 

 (stating that the requesting party
must “show to a reasonable certainty that the records sought
contain exculpatory evidence”).

¶26 The reasonable certainty test is intended to help courts
strike a balance between two ostensibly competing but vitally
important aims: the need to provide all criminal defendants with
a fair trial and the need to protect crime victims from undue
interference into their private records. See State v. Bell, 

, 

 (referring rule 506 to the rules committee, and
directing the committee to “consider” both “the importance of
maintaining a strong privilege rule” for victims as well as
“respecting a criminal defendant’s constitutional rights”); see also
Blake, 

 (discussing the competing aims of
protecting crime victims and treating defendants justly).

¶27 Our supreme court has indicated that the reasonable
certainty test is “stringent,” and that “[t]he difficulty in meeting
this test is deliberate and prudent in light of the sensitivity of these
types of records and the worsening of under-reporting problems
[by victims] in the absence of a strong privilege,” particularly
given that “[c]ourts have long held institution-wide distrust of
rape victims in cases where they were acquainted with their
assailants.” Blake, 

. The term “reasonable
certainty,” in this context, “lies on the more stringent side of ‘more
likely than not.’” Id. ¶ 20.

¶28 To satisfy the reasonable certainty test, the requesting
party must point to “some type of extrinsic indication,” outside of


criminal defendants’ due process rights by preventing them from
mounting a full and fair defense,” and it referred the matter to its
rules committee for review. Id. ¶ 32. In this case, however, no
party raises any constitutional challenge to the reasonable
certainty test, and we therefore need not weigh in on the matter.


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                           State v. Wardle


the sought-after records themselves, “that the evidence within the
records exists and will, in fact, be exculpatory.” Id. ¶ 19. However,
the “reasonable certainty” standard “elude[s] quantification,” and
“[e]xactly how much is required to satisfy” the test “varies with
each case.” Id. ¶¶ 19–20 (quotation simplified). But “mere
speculation” that the sought-after records “might contain
exculpatory evidence . . . is clearly not enough.” Id. ¶ 21. In Blake,
for instance, the requesting party could not meet the test simply
by postulating—without supporting extrinsic evidence—that the
records “may have information about medication” the witness
was taking and that the witness “may have a mental illness.” Id;
see also id. ¶ 22 (stating that “when the request [for records] is a
general one, . . . a court ought not to grant in camera review”).

¶29 But our supreme court, in Blake, offered useful guidance
about what sort of extrinsic evidence would satisfy the standard.
A requesting party may be able to satisfy the test if, for instance,
it could point to “information from outside sources suggesting
that a victim . . . has a history of mental illness relevant to the
victim’s ability to accurately report on the assault.” Id. ¶ 21. More
generally, the court indicated that if the requesting party could
identify “specific facts justifying the review, a court will be much
more likely to find with reasonable certainty that exculpatory
evidence exists which would be favorable to” the requesting
party. Id. ¶ 22 (quotation simplified). And as relevant here, the
court stated that the “specific facts” necessary to satisfy the test
“might include references to records of only certain counseling
sessions, which are alleged to be relevant, independent
allegations made by others that a victim has recanted, or extrinsic
evidence of some disorder that might lead to uncertainty
regarding a victim’s trustworthiness.” Id. (emphasis added).

¶30 In this case, Wardle’s records request is relatively specific,
and it is not simply a general unsupported complaint about
Niece’s credibility. For starters, Wardle has limited his request to
a discrete and targeted period of time that is framed by Niece’s


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                          State v. Wardle


reports to police. Next, and significantly, Wardle’s request is
supported by the police reports, which in our view constitute
important extrinsic evidence—containing Niece’s own words, as
reported by Officer—of “some disorder that might lead to
uncertainty regarding” Niece’s account of events. See id.; see also
Worthen, 

 (stating that the alleged victim’s
“journal entries constitute extrinsic evidence that [her] therapy
records contain statements” that would assist the defendant). And
we even discern support for Wardle’s request in Blake’s reference
to “independent allegations made by others that a victim has
recanted.” See Blake, 

. The situation here is, in a
sense, the converse of a recantation: instead of recanting a
previously lodged allegation, Niece is lodging a previously
“blocked” allegation.

¶31 With regard to whether any records exist at all, we are
quite confident that, at a minimum, therapy records exist from the
February 2021 time frame; after all, Niece told Officer that she
only remembered the second incident after “going to therapy.”
But we acknowledge the State’s point that it is not at all certain
that relevant medical records exist; Niece told Officer merely that
she had “experienced medical issues,” which is at least potentially
different than saying she took the additional step of seeking
medical attention for those issues. However, we think it is a fair
inference, drawn from the language used in the police reports,
that Niece sought some sort of medical attention for the issues
that, apparently, were significant enough to rekindle a
theretofore-forgotten memory of events that occurred long ago. 6



6. In any event, even if it turns out that no medical records exist
because Niece did not seek medical treatment for the “issues” she
told Officer about, that fact might itself be exculpatory because it
could “lead to uncertainty regarding [Niece’s] trustworthiness.”
See State v. Blake, 

, 

. If there are no
                                                      (continued…)


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                           State v. Wardle


¶32 And to the extent that the records exist, we think it is
reasonably certain—as that term is used in this context—that the
records will contain information “that might lead to uncertainty
regarding [Niece’s] trustworthiness.” See 

 Niece specifically
referenced “medical issues” and “therapy” as the things that
triggered her memories, and therefore the records generated by
visits to doctors and therapists during the relevant time period are
likely to contain information that could shed some light on how
these particular memories came into being some twenty years
after the incidents. Such information is, of course, not guaranteed
to be exculpatory, but it very well “might lead to uncertainty
regarding [Niece’s] trustworthiness,” and it is overwhelmingly
likely to be “relevant to [Niece’s] ability to accurately report on”
the incidents. See 

 ¶¶ 21–22. Our supreme court’s governing
case law requires no more.

¶33 Thus, we conclude that Wardle has made the necessary
showing under all three parts of the test, even after considering
the countervailing considerations concerning a victim’s right to
privacy. Wardle has demonstrated that Niece has a condition that
is relevant to his defense to the criminal charges, and he has
demonstrated—under standards and definitions provided by
governing case law—that the requested records are reasonably
certain to contain exculpatory information. Thus, the exception
provided in rule 506(d)(1) is applicable here, and rule 506 is no bar




records, then Wardle could potentially cross-examine Niece about
how medical issues minor enough to necessitate no professional
attention were nevertheless significant enough to trigger dormant
twenty-year-old memories. If, on remand, the district court ends
up conducting an in-camera review of some of Niece’s records,
and if that review reveals that there were in fact no medical
records generated in or about April 2020, the court should note
that fact in its post-review order regarding the records.


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                           State v. Wardle


to in-camera review of the requested records. The district court
erred in concluding otherwise.

                     IV. Remand Instructions

¶34 Given our conclusion that the district court erred in
concluding that the sought-after records were privileged, it is
necessary for us to remand this case to the district court for further
proceedings. But we stop short of reversing the district court’s
order denying Wardle’s motion for in-camera review of the
requested records. As we have already noted, supra ¶ 11, the
district court’s denial of Wardle’s motion rested on two
independent grounds: privilege and overbreadth. For the reasons
set forth in this opinion, the district court shouldn’t have denied
Wardle’s motion on privilege grounds. But Wardle hasn’t asked
us, in this interlocutory appeal, to review the district court’s
overbreadth ruling. Ordinarily, a party’s failure to appeal an
independent ground for a district court’s decision is fatal to that
party’s appeal. See Kendall v. Olsen, 

, 

(“We will not reverse a ruling of the district court that rests on
independent alternative grounds where the appellant challenges
only one of those grounds.” (quotation simplified)). But here, in
the posture of this interlocutory appeal, all parties appear to agree
that the privilege issues will remain relevant on remand because
Wardle remains free, during the pendency of the case, to attempt
to cure any overbreadth by submitting a more narrow and
targeted records request; indeed, the State did not ask us to
decline to reach the privilege issues due to Wardle’s decision not
to challenge the overbreadth ruling. Thus, despite our conclusion
that the district court’s privilege analysis was in error, our
ultimate disposition is to affirm the district court’s order due to
Wardle’s failure to challenge the alternative basis for that order.

¶35 Should Wardle submit a renewed request for Niece’s
medical and therapy records, rule 506 should present no bar to in-camera review. The court should then analyze Wardle’s request



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                           State v. Wardle


for overbreadth, and the court should grant in-camera review if—
taking into account Wardle’s access to relevant information and
his ability, if any, to make the request narrower—the request is
“sought with particularity and [is] reasonably limited as to subject
matter.” See Utah R. Crim. P. 14(b)(2).


                          CONCLUSION

¶36 Under the circumstances of this case, the medical and
therapy records generated by medical providers (if any) and
therapists Niece saw for the “medical issues” and “therapy”
referred to in the police reports are not privileged under rule 506,
because Wardle has made the showing necessary for application
of the privilege exception set forth in rule 506(d)(1). Thus, rule 506
presents no bar to in-camera review of such records, and the
district court erred by concluding otherwise.

¶37 We nevertheless affirm the district court’s order denying
Wardle’s request for in-camera review, because Wardle did not
mount an appellate challenge to the court’s alternative basis
(overbreadth) for denying that request. We remand the case for
further proceedings consistent with this opinion. On remand,
Wardle may renew his request for in-camera review.




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