THIS DECISION IS NONPRECIDENTIAL EXCEPT AS PROVIDED BY MINN. R. CIV. APP. P. 136.01(1)(C) AND MINN. ST. SEC. 480A.08(3).

*1 BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND FOR THE FOLLOWING REASONS:

Petitioner State of Minnesota seeks a writ of prohibition to prevent the district court “from requiring the disclosure of privileged and confidential records” to the district court for in camera review. Respondent Erik Anton Lee opposes the writ.

In April 2023, the state charged Lee with one count of first-degree criminal sexual conduct alleging sexual penetration with the alleged victim in May 1, 2004 to December 31, 2007, when the alleged victim was at least 13 but less than 16 years old. Lee filed a motion to compel discovery, seeking the court's “assistance in obtaining records and information that are likely privileged and/or confidential,” and “move[d] to compel disclosure of documents, evidence and other records that are not privileged or confidential but have not yet been produced or made available.” The state opposed the motion. By order entered on October 20, 2023, the district court found that Lee “established some plausible showing that the information sought would be both material and favorable to his defense,” and ordered a list of records from governmental entities, including mental-health and psychological records, to be filed with the court for in camera review “to determine whether the victim's privacy rights and privilege must give way to” Lee's right to present a defense. The state moved to reconsider, arguing, among other things, that the alleged victim has an absolute privilege in her medical and mental-health records. See State v. Conrad (In re Hope Coal.), 977 N.W.2d 651 (Minn. 2022) (Hope), and State v. Martinez-Ramirez (In re State), 985 N.W.2d 581 (Minn. App. 2023), rev. granted (Mar. 14, 2023) and appeal dismissed (Minn. July 31, 2023).

In an order entered on December 5, 2023, the district court granted the state's motion to reconsider, in part, and struck the mental-health records and names of therapists from the list of materials to be delivered to the court for in camera review, concluding that “on balance, [Lee's] constitutional rights do not outweigh the State's interest in preserving the confidentiality” of the alleged victim's privileged mental-health records. Lee served subpoenas on the governmental entities in possession of the remaining materials, directing the information to be delivered to the district court for in camera review. Lee also served a subpoena on the prosecuting attorney to obtain the alleged victim's scrapbooks, journals, and other memorabilia collected during the time period alleged in the complaint. The state moved to quash the subpoenas, and alternatively moved to stay enforcement of the discovery orders. The district court granted the motion to stay. The state then filed this petition for a writ of prohibition.

The state must meet three requirements for a writ of prohibition to issue from this court: “(1) an inferior court or tribunal must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) the exercise of such power must result in injury for which there is no adequate remedy.” State v. Turner, 550 N.W.2d 622, 625 (Minn. 1996) (quotation omitted). There is no dispute that the district court exercised judicial authority in the discovery orders.

*2 The next question is whether the state has an adequate remedy. In Turner, the supreme court observed that a “petition for a writ of prohibition is an appropriate means of obtaining review of a discovery order, which is not appealable as of right, where the district court has ordered the production of information clearly not discoverable.” Id. at 625-26. The petitioner in Turner was a criminal defendant. Criminal defendants do not have a right to a pretrial appeal and must wait until final judgment to obtain review of a discovery order. See Minn. R. Crim. P. 28.02, subd. 2(1). The supreme court observed that, “while Turner could contest the district court's order to quash the subpoenas [in an appeal] after a conviction, this is not an adequate remedy when the district court's order may have denied Turner access to exculpatory evidence and testimony” to assist in his defense. Id. at 626.

Without addressing whether the state has an adequate remedy by appeal, the state argues that “[p]rohibition is the only way to avoid injury” because the victim is not a party to this criminal proceeding. In State v. Yildirim (In re B.H.), the supreme court determined that issuance of a writ of prohibition was necessary “to prevent irremediable harm to B.H.,” the victim in a criminal sexual conduct prosecution, from the district court's order denying her motion to quash a subpoena requiring her to deliver her cell phone to a defense expert to extract data. 946 N.W.2d 860, 871 (Minn. 2020). Here, unlike the victim in B.H., the state is a party, and the state is seeking to prevent enforcement of the district court's discovery orders. And unlike the criminal defendant in Turner, the state has a right to appeal “from any pretrial order” in “any case.” Minn. R. Crim. P. 28.04, subd. 1(1). The district court's October 20 and December 5, 2023 orders are pretrial discovery orders the state can appeal as of right. See State v. Underdahl, 767 N.W.2d 677, 682-83 (Minn. 2009) (holding in state pretrial appeal from discovery orders for Intoxilyzer 5000EN source code that state is required to show critical impact). Because the state has an adequate remedy in a pretrial appeal, we conclude that prohibition is not an appropriate remedy for review of the district court's discovery orders.

We also conclude that the state has not shown that the district court's orders directing materials to be filed with the court for in camera review under State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987), are unauthorized by law. Preliminarily, we note that the state's petition refers to the materials as “privileged and confidential.” The state's use of the term privileged is misleading. The district court's December 5, 2023 order removed the statutorily privileged mental-health records from the list of materials to be filed with the court for in camera review. The state does not identify any statutory privilege that applies to the remaining materials, other than to speculate that the subpoenas are so broad that they might reveal privileged material. The state also does not identify any authority that precludes confidential material from in camera review by the district court. In Hope, the supreme court distinguished Paradee, which involved confidential—not privileged—records held by a state entity from the unpierceable statutorily privileged sexual-assault counselor records at issue in Hope. 977 N.W.2d at 659-60.

Other than scrapbooks, journals, and other memorabilia in the alleged victim's possession, the remaining materials to be delivered to the district court for in camera review are in the possession of governmental entities. The information held by these governmental entities is likely confidential or not public data. See Minn. Stat. § 13.02, subds 8a (2022) (defining “[n]ot public data” as “any government data classified by state, federal law, or temporary classification as confidential, private, nonpublic, or protected nonpublic”). But that does not mean that the district court erred by ordering in camera review of the material. “When a criminal defendant requests records that are subject to the Minnesota Government Data Practice Act or other legislation, the district court may screen the confidential records in camera to balance the right of the defendant to prepare and present a defense against the rights of victims and witnesses to privacy.” State v. Hokanson, 821 N.W.2d 340, 349 (Minn. 2012) (indicating that district court followed Paradee and reviewed all social services records in camera before disclosing relevant portions before trial). In camera review is the appropriate procedure for reviewing these materials. The record does not show that any of the entities have objected to delivering the materials to the court for in camera review. See Minn. Stat. 13.03, subd. 6 (2022). And if any entity opposes discovery, the party seeking access to the data may bring an action to compel discovery. Id.

*3 The state also argues that the district court exceeded its lawful authority by ordering disclosure of material within the possession of third parties without requiring Lee to file a motion for a court order for a subpoena, as required by Minn. R. Crim. P. 22.01, subd. 2(c). This rule applies to privileged or confidential material in the possession of a third party. The only materials that are in the possession of a third party are the scrapbook, journals, and memorabilia in the alleged victim's possession. But these materials are not privileged or confidential. And contrary to the state's argument that this is a fishing expedition, the supreme court has recognized that an alleged criminal sexual conduct victim's “repeated references” to the content of her journals makes them “relevant, probative and admissible as to whether sexual penetration occurred.” State v. Wildenberg, 573 N.W.2d 692, 698 (Minn. 1998) (concluding district court erred in denying discovery of victim's journals in possession of the state and by limiting cross-examination regarding them, requiring a new trial where the only evidence of sexual penetration was victim's testimony).

The remaining materials are in the possession of governmental entities, and disclosure of those materials is governed by Minn. R. Crim. P. 9.01, subd. 2(1) (providing that, on defendant's motion and for good cause, district court must require prosecutor “to assist the defendant in seeking access to specified matters relating to the case that are within the possession or control of an official or employee of any governmental agency but not within the prosecutor's control”).[2]

We are also not persuaded by the state's arguments that the district court's order is unauthorized because Lee did not make a “plausible showing” that the material sought will be relevant and material to his case. To obtain in camera review, the defendant “must make some ‘plausible showing’ that the information sought would be ‘both material and favorable to his defense.’ ” State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 58 n. 15 (1987)). Based on our review of the arguments in Lee's motion, we are satisfied that Lee explains how the information he seeks will support his defense theories. The district court's determination that Lee has made the required “plausible showing” is not unauthorized.

Because the state has an adequate remedy in a pretrial appeal from a discovery order, and because the state has not shown that the district court's orders for in camera review of these materials are unauthorized by law, the state has not met the requirements for a writ of prohibition to issue from this court.

IT IS HEREBY ORDERED: The petition for prohibition is denied.