Ex parte Nathan Joseph Suhy PETITION FOR WRIT OF MANDAMUS ( 2023 )


Menu:
  • REL: April 7, 2023
    Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
    Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
    Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
    may be made before the opinion is published in Southern Reporter.
    ALABAMA COURT OF CIVIL APPEALS
    OCTOBER TERM, 2022-2023
    _________________________
    CL-2023-0017 and CL-2023-0018
    _________________________
    Ex parte Nathan Joseph Suhy
    PETITION FOR WRIT OF MANDAMUS
    (In re: Nathan Joseph Suhy
    v.
    Laila Venable Willard)
    (Baldwin Circuit Court, DR-19-900863.02 and DR-19-900863.03)
    MOORE, Judge.
    Nathan Joseph Suhy ("the father") petitions this court for a writ of
    mandamus directing the Baldwin Circuit Court ("the trial court") to
    vacate its orders granting, in part, a motion to compel discovery filed by
    Laila Venable Willard ("the mother") and denying, in part, the father's
    CL-2023-0017 and CL-2023-0018
    motion for a protective order that was filed in response to the mother's
    motion to compel. We deny the father's petition.
    Procedural History
    The mother and the father were divorced by a judgment entered by
    the trial court on January 8, 2020 ("the divorce judgment"), that adopted
    an agreement entered into by the parties; that action was assigned case
    number DR-19-900863 ("the divorce action"). The father asserts in his
    mandamus petition that, pursuant to the divorce judgment, the parties
    had shared joint legal custody of their two minor children and the mother
    had exercised sole physical custody of the children, subject to the father's
    exercise of standard visitation. 1 The father subsequently filed a petition
    requesting a modification of the custody award and a finding of contempt
    1The  father attached the divorce judgment as an exhibit to the
    mandamus petition; however, the divorce judgment itself, which
    references the parties' agreement, does not include the terms of that
    agreement with regard to custody, and the parties' agreement does not
    appear among the materials attached to the father's mandamus petition
    before this court. Because the mother does not challenge the father's
    assertions regarding the award of custody in the divorce judgment,
    however, we take the father's averments as true. See Ex parte Turner,
    
    840 So. 2d 132
    , 134-35 (Ala. 2002).
    2
    CL-2023-0017 and CL-2023-0018
    against the mother; that petition, which does not appear in the materials
    before this court, was assigned case number DR-19-900863.01 ("the .01
    action"). The trial court entered a judgment in the .01 action on January
    12, 2021, denying the father's request for sole physical custody of the
    children but finding the mother in contempt for having violated certain
    provisions of the divorce judgment.
    On April 26, 2022, the mother filed a petition in the trial court
    requesting that the father's visitation with the children be suspended;
    that petition was assigned case number DR-19-900863.02 ("the .02
    action"). The mother alleged, among other things, that the father had
    not maintained a suitable living environment for the children and that
    she believed that the children had been sexually abused while in the
    father's care.   On May 24, 2022, the father filed a "petition for
    modification and contempt" in which he requested, among other things,
    that he be awarded sole physical custody of the children, an award of
    child support, a finding of contempt against the mother, an award of
    attorney's fees, and that the mother be awarded supervised visitation
    with the children; the father's petition was assigned case number DR-19-
    3
    CL-2023-0017 and CL-2023-0018
    900863.03 ("the .03 action"). The trial court entered an order on June 3,
    2022, consolidating the .02 action and the .03 action.
    On November 2, 2022, the mother filed a notice with the trial court,
    indicating that she had filed a request for the inspection of the father's
    electronic records and devices. A copy of that request was attached to the
    notice and states:
    "Please produce access to any and all electronic devices
    within thirty (30) days, for inspection of electronic data stored
    on any electronic device in possession of the [father] in the
    above-styled action. This request includes, but is not limited
    to, any and all laptops, desktops, tablets, cellular telephone
    and devices, electronic watches, and any other electronic
    device in the possession and that is used by the [father]."
    On November 8, 2022, the mother filed in the trial court a motion to
    compel. She asserted that the father's counsel had indicated that the
    father did not intend to comply with her discovery request seeking
    inspection of the father's electronic records and devices, and she
    requested an order compelling the father to respond to her request for
    inspection, as well as sanctions in the form of a reasonable attorney's fee.
    The father filed a response to the mother's motion to compel on
    November 9, 2022.      He asserted that his electronic devices "contain
    4
    CL-2023-0017 and CL-2023-0018
    personal and confidential information which should not be viewed by the
    ... mother or her counsel," that there was "absolutely no probative value
    to th[e] [mother's] request," that the mother's request was "a fishing
    expedition by which the mother hopes to pry into the father's life," and
    that the request was an invasion of privacy that was not relevant to the
    issues in the case. On November 21, 2022, the father filed a motion for a
    protective order and a supplemental objection to the mother's request for
    inspection. He asserted, among other things, that the mother's request
    was overly broad, unduly burdensome, and highly prejudicial and that
    his   devices   contain   data    with   confidential   and    privileged
    communications, including communications subject to the attorney-client
    privilege or protected under the work-product doctrine.       The father
    requested a protective order stating that he was not required to turn over
    his electronic devices for inspection and examination by the mother
    and/or "her representatives, agents, or experts." The father filed, on
    November 25, 2022, a motion to stay the entry of an order on the mother's
    motion to compel.
    5
    CL-2023-0017 and CL-2023-0018
    On November 29, 2022, the mother filed a response to the father's
    motion for a protective order and his supplemental objection to her
    discovery request, and, on November 30, 2022, the mother filed a
    response to the father's motion to stay. On December 1, 2022, the father
    filed a reply to the mother's November 29, 2022, response in which he
    reasserted the arguments that he had previously asserted in response to
    the mother's motion to compel.
    On December 12, 2022, the trial court entered an order granting, in
    part, the father's motion for a protective order. That order states, in its
    entirety:
    "MOTION FOR PROTECTIVE ORDER filed by [the
    father] is hereby GRANTED IN PART. [The father] may not
    assert the attorney/client privilege in such a way as to shield
    entire devices from examination by [the mother's] expert. If
    [the father] believes that there are emails, documents or other
    forms of electronically stored information on his devices that
    are privileged communications or contain privileged
    information, he must assert the privilege as to those items by
    filing a motion seeking protection from disclosure. Upon the
    filing of such a motion the [mother's] expert is stayed from
    examining those items pending the court's ruling as to the
    asserted privilege."
    (Capitalization in original.)
    6
    CL-2023-0017 and CL-2023-0018
    On December 20, 2022, the trial court entered an order addressing
    a number of pending motions, including the mother's motion to compel.
    That order provides, in pertinent part, that
    "the motion to compel filed by the mother is GRANTED in
    part and the father shall deliver to the mother's expert, all
    electronic devices specified in the mother's first request for
    inspection of electronic records. The mother's expert shall not
    disclose to the mother or her attorney, (i) confidential military
    electronic messages related to the father's military
    employment, (ii) any evidence of communication between the
    father and his attorney or any files related to those
    communications and (iii) military issued devices related to the
    father's employment. The father shall provide his password,
    pin, or any other information necessary to access these devices
    to the mother's expert which shall not be shared with the
    parties or their respective attorneys."
    (Capitalization in original.)
    On January 17, 2023, the father filed a petition for the writ of
    mandamus with this court.
    CL-2023-0018 -- The .03 Action
    We first address the father's mandamus petition to the extent it
    purportedly challenges orders entered in the .03 action. We note that
    each of the filings and orders pertaining to the mother's discovery request
    indicate that they were entered in the .02 action. There is no indication
    7
    CL-2023-0017 and CL-2023-0018
    in the materials before this court that those same filings and orders were
    entered in the .03 action, and the trial court's orders in the .02 action are
    not considered part of the .03 action merely because those actions were
    consolidated. See Ex parte Autauga Cnty. Dep't of Hum. Res., [Ms.
    2200936, Nov. 5, 2021] ___ So. 3d ___, ___ (Ala. Civ. App. 2021). Because
    the father has not presented anything to this court indicating that the
    mother's motion to compel, the father's motion for a protective order, or
    the trial court's orders in response to those motions were filed or entered
    in the .03 action, there is nothing for this court to review in that case.
    Accordingly, we deny the father's mandamus petition in CL-2023-0018.
    See Ex parte Autauga Cnty. Dep't of Hum. Res., 
    348 So. 3d 403
    , 410 (Ala.
    Civ. App. 2021) (concluding that the petitioner's failure to include in the
    materials submitted to this court any orders entered in an action
    required the denial of its petition for the writ of mandamus as to that
    action).
    CL-2023-0017 -- The .02 Action
    With regard to the orders entered in the .02 action, the father
    argues in his mandamus petition that his electronic devices contain
    8
    CL-2023-0017 and CL-2023-0018
    various forms of protected material that warrant a protective order
    prohibiting those devices from examination; that the mother's discovery
    request is "a fishing expedition designed to harass him"; that the
    protective order entered by the trial court is insufficient to shield the
    mother from obtaining the father's protected information; and that it is
    unduly burdensome to require the father to retain his own expert to
    create a log of the privileged data that is on his electronic devices. In Ex
    parte Ocwen Federal Bank, FSB, 
    872 So. 2d 810
    , 813-14 (Ala. 2003), our
    supreme court outlined the applicable standard of review:
    "Mandamus is an extraordinary remedy and will be
    granted only where there is '(1) a clear legal right in the
    petitioner to the order sought; (2) an imperative duty upon the
    respondent to perform, accompanied by a refusal to do so; (3)
    the lack of another adequate remedy; and (4) properly invoked
    jurisdiction of the court.' Ex parte Alfab, Inc., 
    586 So. 2d 889
    ,
    891 (Ala. 1991). This Court will not issue the writ of
    mandamus where the petitioner has ' "full and adequate
    relief" ' by appeal. State v. Cobb, 
    288 Ala. 675
    , 678, 
    264 So. 2d 523
    , 526 (1972) (quoting State v. Williams, 
    69 Ala. 311
    , 316
    (1881)).
    "Discovery matters are within the trial court's sound
    discretion, and this Court will not reverse a trial court's ruling
    on a discovery issue unless the trial court has clearly exceeded
    its discretion. Home Ins. Co. v. Rice, 
    585 So. 2d 859
    , 862 (Ala.
    1991). Accordingly, mandamus will issue to reverse a trial
    9
    CL-2023-0017 and CL-2023-0018
    court's ruling on a discovery issue only (1) where there is a
    showing that the trial court clearly exceeded its discretion,
    and (2) where the aggrieved party does not have an adequate
    remedy by ordinary appeal. The petitioner has an affirmative
    burden to prove the existence of each of these conditions.
    "Generally, an appeal of a discovery order is an adequate
    remedy, notwithstanding the fact that that procedure may
    delay an appellate court's review of a petitioner's grievance or
    impose on the petitioner additional expense; our judicial
    system cannot afford immediate mandamus review of every
    discovery order. See Walker v. Packer, 
    827 S.W.2d 833
    , 842
    (Tex.1992) ('Mandamus disrupts the trial proceedings, forcing
    the parties to address in an appellate court issues that
    otherwise might have been resolved as discovery progressed
    and the evidence was developed at trial.'). In certain
    exceptional cases, however, review by appeal of a discovery
    order may be inadequate, for example, (a) when a privilege is
    disregarded, see Ex parte Miltope Corp., 
    823 So. 2d 640
    , 644-
    45 (Ala. 2001) ('If a trial court orders the discovery of trade
    secrets and such are disclosed, the party resisting discovery
    will have no adequate remedy on appeal.'); (b) when a
    discovery order compels the production of patently irrelevant
    or duplicative documents, such as to clearly constitute
    harassment or impose a burden on the producing party far out
    of proportion to any benefit that may obtain to the requesting
    party, see, e.g., Ex parte Compass, 
    686 So. 2d 1135
    , 1138 (Ala.
    1996) (request for 'every customer file for every variable
    annuity' including annuity products the plaintiff did not
    purchase); (c) when the trial court either imposes sanctions
    effectively precluding a decision on the merits or denies
    discovery going to a party's entire action or defense so that, in
    either event, the outcome has been all but determined, and
    the petitioner would be merely going through the motions of
    a trial to obtain an appeal; or (d) when the trial court
    10
    CL-2023-0017 and CL-2023-0018
    impermissibly prevents the petitioner from making a record
    on the discovery issue so that the appellate court cannot
    review the effect of the trial court's alleged error. The burden
    rests on the petitioner to demonstrate that its petition
    presents such an exceptional case -- that is, one in which an
    appeal is not an adequate remedy. See Ex parte Consolidated
    Publ'g Co., 
    601 So. 2d 423
    , 426 (Ala. 1992)."
    (Footnote omitted.)
    We first address the father's argument that the mother's discovery
    request is an impermissible fishing expedition designed to harass him.
    The father cites Ex parte Rice, 
    258 Ala. 132
    , 138, 
    61 So. 2d 7
    , 8 (1952),
    and Ex parte Rowell, 
    248 Ala. 80
    , 
    26 So. 2d 554
    , 557 (1946), both of which
    were decided before the adoption the Alabama Rules of Civil Procedure
    and both of which include a determination by our supreme court that
    interrogatories could not be used in those cases to discover the existence
    of a fact then unknown as a basis for allegations necessary to a cause of
    action not already alleged in the complaint. In the present case, the scope
    of discovery in the trial court is governed by Rule 26(b), Ala. R. Civ. P.,
    which provides, in pertinent part:
    "(1) In General. Parties may obtain discovery regarding
    any matter, not privileged, which is: (i) relevant to the subject
    matter involved in the pending action, whether it relates to
    11
    CL-2023-0017 and CL-2023-0018
    the claim or defense of the party seeking discovery or to the
    claim or defense of any other party; and (ii) proportional to the
    needs of the case, considering the importance of the issues at
    stake in the action, the amount in controversy, the parties'
    relative access to relevant information, the parties' resources,
    the importance of the discovery in resolving the issues, and
    whether the burden or expense of the proposed discovery
    outweighs its likely benefit. It is not ground for objection that
    the information sought will be inadmissible at the trial if the
    information sought appears reasonably calculated to lead to
    the discovery of admissible evidence."
    In Zaden v. Elkus, 
    881 So. 2d 993
    , 1006 (Ala. 2003), our supreme court
    confirmed that discoverable matters that are relevant to the subject
    matter of an action have "no immediate status as 'evidence.' " The court
    stated, in pertinent part:
    "The proper test under Rule 26[, Ala. R. Civ. P.,] is
    whether the information sought for discovery is 'relevant'
    within the meaning of that rule. As noted, discovery of certain
    information is relevant at [the discovery] stage even though
    that information is not admissible at trial if there is the
    reasonable possibility that the information will lead to other
    information that will be admissible as evidence at trial."
    
    881 So. 2d at 1007
    .
    In her petition in the .02 action, the mother asserted, among other
    things, that the father had not maintained a suitable living environment
    for the children; that the mother believed the children had been sexually
    12
    CL-2023-0017 and CL-2023-0018
    abused while in the father's care, that the parties' oldest child had
    disclosed inappropriate behavior toward him by the father, and that the
    children had exhibited behavior that caused the mother concern. In her
    motion to compel discovery, the mother asserted that her requested
    inspection of the father's electronic devices was necessary to discover
    whether he was exposing the children to his "potential perverse
    fascinations and pornographic [Web sites.] She further asserted that
    multiple reports had been made to the Baldwin County Department of
    Human Resources regarding the father's abusive behavior toward the
    children.
    The father does not assert in his mandamus petition that the
    mother's discovery request is irrelevant to the allegations made in her
    complaint. Rather, he asserts that her claim that the father has exposed
    the children to inappropriate materials "exists only in her mind" and that
    there has been no mention of that purported conduct in accusations that
    she had made to law-enforcement and other law-enforcement related
    agencies. "This Court has on many occasions held that the trial courts
    have very broad discretion regarding discovery matters under Rule 26,
    13
    CL-2023-0017 and CL-2023-0018
    Ala. R. Civ. P." Hunt v. Windom, 
    604 So. 2d 395
    , 397 (Ala. 1992). The
    father attaches to his mandamus petition, among other things, notices of
    his intent to serve nonparty document subpoenas on agencies to which
    the mother has purportedly raised allegations regarding the father's
    treatment of the children, including the Daphne Police Department, the
    Escambia County Regional Child Advocacy Center, Care House Baldwin
    County Child Advocacy Center, the Robertsdale Police Department, the
    Fairhope Police Department, and the Alabama Department of Human
    Resources.     The father asserts, referencing attachments to his
    mandamus petition containing records from the Baldwin County
    Department of Human Resources and the Escambia County Child
    Advocacy Center, that "[i]n all of the shopping around to various police
    departments in the hopes an accusation would stick, there has been no
    mention of this purported conduct." Even assuming that the records from
    two of the six agencies that have purportedly received information
    related to the allegations referenced by the mother in her complaint
    contain no indication of the allegations sought to be discovered, we cannot
    conclude that those records require the denial of the mother's request to
    14
    CL-2023-0017 and CL-2023-0018
    inspect the father's electronic records and devices in its entirety. Because
    the trial court could have determined that the mother's discovery request
    was relevant to the allegations in her petition and had the potential to
    lead to admissible evidence, we do not conclude that the trial court erred
    in declining to deny the mother's discovery request as an impermissible
    fishing expedition.
    We next consider the father's argument that his electronic devices
    contain information "that falls within the attorney-client privilege,
    spousal privilege, work product, and also personal, private information
    related to his work as a military recruiter." With the exception of his
    assertion regarding the existence of communications protected by
    "spousal privilege," we note that the remaining categories of potentially
    privileged information outlined by the father are addressed in the trial
    court's December 20, 2022, order. The father cites in support of his
    argument that his electronic devices contain communications between
    him and his spouse that deserve protection under Rule 504(b), Ala. R.
    Evid., which provides, in pertinent part, that "a person has a privilege to
    refuse to testify, or to prevent any person from testifying, as to any
    15
    CL-2023-0017 and CL-2023-0018
    confidential communication made by one spouse to the other during the
    marriage." He also cites Cooper v. Mann, 
    273 Ala. 620
    , 623, 
    143 So. 2d 637
    , 639 (1962), which was decided before the adoption of the Alabama
    Rules of Civil Procedure, for the proposition that "all private and
    confidential communications between husband and wife are privileged
    and cannot be divulged by either when on the witness stand." Presently,
    Rule 26(b)(6), Ala. R. Civ. P., addresses claims of privilege or protection
    of trial-preparation materials and provides, in pertinent part:
    "(A) When a party withholds information otherwise
    discoverable under these rules on a claim that it is privileged
    or subject to protection as trial-preparation materials, the
    claim shall be made expressly and, upon written request by
    any other party, shall be supported by a description of the
    nature of the documents, communications, or things not
    produced sufficient to enable the demanding party to contest
    the claim. This supporting description shall be served within
    twenty-one (21) days of the date a request is served, unless
    otherwise ordered."
    In the present case, the materials before this court indicate that the
    father's only reference to a claim of privileged communications between
    him and his spouse occurred in the father's December 1, 2022, reply to
    16
    CL-2023-0017 and CL-2023-0018
    the mother's response to his motion for a protective order in which he
    asserted, in pertinent part, that the mother
    "is merely on a fishing expedition in which she desires to pry
    into the personal life of the father with no pending allegation
    and review confidential attorney client information, trial
    strategy, marital privilege and communication between the
    father and his new spouse, electronic trial information
    conveyed via Internet and other information in a rouse [sic]
    and a newly alleged POTENTIAL that the children saw
    pornography."
    (Capitalization in original.)    We cannot conclude that the father's
    assertion in his December 1, 2022, reply satisfied the requirement in Rule
    26(b)(6) that any claim regarding privileged information be supported by
    a description of the nature of the documents or communications or that
    his assertion amounts to a claim of privilege regarding communications
    between him and his spouse. Accordingly, we cannot conclude that the
    trial court clearly exceeded its discretion in excluding from its protective
    order any reference to items purportedly protected by "spousal privilege."
    See Ocwen, 
    supra.
     We note, however, that the trial court's December 12,
    2022, order permits the father to file a motion seeking protection from
    disclosure of items subject to that privilege.
    17
    CL-2023-0017 and CL-2023-0018
    Regarding the remainder of the information that the father asserts
    is protected by an evidentiary privilege or as attorney work product, the
    trial court entered a protective order in response to the father's request.
    Rule 26(c), Ala. R. Civ. P., which addresses protective orders in response
    to discovery requests, allows a trial court to order, among other things,
    "that the discovery may be had only on specified terms and conditions,"
    "that certain matters not be inquired into or that the scope of the
    discovery be limited to certain matters," or "that discovery be conducted
    with no one present except persons designated by the court."            In
    accordance with Rule 26(c), the trial court in the present case directed
    that the mother's expert shall not disclose to the mother or her attorney
    certain communications, messages, and devices with regard to the
    information protected by the attorney-client privilege and other files
    related to the father's legal case (e.g., attorney work product) or
    information related to the father's employment. In addition to those
    limitations, the trial court's December 12, 2022, order allows the father
    to assert evidentiary privileges as to specified items and to request a
    18
    CL-2023-0017 and CL-2023-0018
    ruling by the trial court before the mother's expert may proceed with a
    review of those additional items.
    The father argues that the trial court exceeded its discretion
    because its December 12, 2022, order effectively requires him to retain
    his own expert to create a log of privileged data on his electronic devices
    and, he argues, such a requirement is unduly burdensome.               Rule
    26(b)(2)(A), Ala. R. Civ. P., provides:
    "A party need not provide discovery of electronically stored
    information from sources that the party identifies to the
    requesting party as not reasonably accessible because of
    undue burden or cost. On motion to compel discovery or for a
    protective order, the party from whom discovery is sought
    must show that the information is not reasonably accessible
    because of undue burden or cost. If that showing is made, the
    court may nonetheless order discovery from such sources if
    the requesting party shows good cause for compelling the
    discovery, considering the limitations of subdivision (b)(2)(B)
    of this rule. The court may specify conditions for such
    discovery."
    In her answer to the father's mandamus petition, the mother
    asserts that the father failed to argue before the trial court that he was
    required to retain his own expert to address the mother's discovery
    request or that he had presented any indication that such a requirement
    19
    CL-2023-0017 and CL-2023-0018
    would create an undue burden or expense on the father. From all that
    appears in the materials before this court, the father failed to make the
    necessary showing before the trial court, as required in Rule 26(b)(2)(A),
    that allowing the mother to discover the requested information is not
    reasonably accessible because of undue burden or cost. Indeed, the father
    appears to admit in his December 1, 2022, reply to the mother's answer
    that he failed to make "the specific argument that he by himself cannot
    discern what data, metadata, and deleted items qualify as confidential,
    privileged, or protected." Thus, he appears to concede that he failed to
    argue before the trial court that the expense of hiring his own expert
    would create an undue burden such that the mother's discovery request
    was due to be denied. See Ex parte Ebbers, 
    871 So. 2d 776
    , 786 (Ala.
    2003) ("In determining, on mandamus review, whether the trial court
    exceeded the limits of its discretion, 'the appellate courts will not reverse
    the trial court on an issue or contention not presented to the trial court
    for its consideration in making its ruling.' Ex parte Wiginton, 
    743 So. 2d 1071
    , 1073 (Ala. 1999).").
    20
    CL-2023-0017 and CL-2023-0018
    The father argues, however, that this court may consider his
    argument because of the mother's alleged admission in her answer to the
    father's mandamus petition that the data sought in her discovery request
    may be found only by a forensic expert. The mother states in her answer
    that a forensic examination of the father's electronic devices is necessary
    because, presumably, any illicit materials on the father's devices are
    likely to be hidden or deleted by the father, thereby requiring an expert
    to extract those hidden files. We cannot agree with the father that the
    mother's statement amounts to an admission that the father can identify
    the data sought in the mother's discovery request only by employing a
    forensic expert. Moreover, the father admits in his mandamus petition
    that the mother had offered to pay for the extraction of data and
    metadata from his electronic devices. Accordingly, we cannot conclude
    that the father has shown that he will bear any cost, let alone undue cost,
    as a result of the mother's discovery request or the limitations and
    conditions placed on that request by the trial court such that the trial
    court clearly exceeded its discretion. See Ocwen, 
    supra.
    21
    CL-2023-0017 and CL-2023-0018
    The father also challenges the trial court's December 20, 2022,
    order. He asserts that, because that order allows the mother's expert to
    determine whether the information on his electronic devices is
    confidential, privileged, or protected, the trial court's order effectively
    appointed the mother's hired expert as a "de facto special master," an
    appointment that he asserts was error. There is no indication in the
    materials before us, however, that the father presented his argument
    that the trial court had erroneously appointed the mother's expert as a
    special master to the trial court at any time. Accordingly, we decline to
    address that argument. See Ebbers, 
    supra.
     We acknowledge that the
    father argued in his November 21, 2022, motion for a protective order
    that the mother's request to allow her expert to search his electronic
    devices and to determine whether the data on those devices amounts to
    privileged or protected information is "highly and unfairly prejudicial."
    The father fails, however, to present any argument or any citation to
    authority in support of that assertion in his mandamus petition; instead,
    he limits his challenges to the trial court's December 20, 2022, order to
    his argument that the mother's expert is disqualified from serving as a
    22
    CL-2023-0017 and CL-2023-0018
    special master. Accordingly, the father has failed to show that the trial
    court clearly exceeded its discretion with regard to its December 20, 2022,
    order.
    Because the father has failed to show a clear legal right to the relief
    sought, we deny his petition.
    CL-2023-0017 -- PETITION DENIED.
    CL-2023-0018 -- PETITION DENIED.
    Thompson, P.J., and Hanson and Fridy, JJ., concur.
    Edwards, J., concurs in the result, without opinion.
    23