concurring.
The Authorization for Release of Information ordered by the Hamilton Cireuit Court to be signed by the plaintiff Cua is identical to the Authorization for Release of Information ordered by the Montgomery Circuit Court and reviewed by our First District in Lytle v. Miller, an unpublished decision in an interlocutory appeal ordered dismissed by our Supreme Court. That order of dismissal, dated June 4, 1992, reads as follows:
"Comes now Appellant, Steven Lytle, by counsel, and files his 'Petition for Transfer. He asks this Court to reverse the Court of Appeals' memorandum decision filed December 17, 1992, in this cause.
The Court GRANTS Appellant's 'Petition for Transfer.! The Court DISMISSES this interlocutory appeal because it is not authorized by App.R. 4(B)(1) and the requirements of App.R. 4(B)(6) have not been met. State v. Hogan (1991), Ind., 582 N.E.2d 824.
The Clerk is directed to send copies of the Order to all counsel of record.
DONE AT INDIANAPOLIS, INDIANA this 4th day of June, 1992.
s/ Randall T. Shepard RANDALL T. SHEPARD CHIEF JUSTICE OF INDIANA
All Justices concur except Dickson, J., who would grant transfer but not dismiss the case."3
As the majority opinion herein notes, the Hogan decision involved a discovery order requiring the production of certain docu*955ments. The documents were in possession of the Attorney General who resisted production of the documents upon grounds that they constituted attorney work product and/or client-attorney privilege. The Supreme Court affirmed the production order stating that Appellate Rule 4(B)(1) is not designed to permit an interlocutory appeal from every order "to produce documents during discovery". 582 N.E.2d at 825. As authority for the holding, the Hogan court cited Greyhound Lines, Inc. v. Vanover (1974) 2d Dist., 160 Ind.App. 289, 311 N.E.2d 632. The latter case, without discussion or rationale, merely held that a discovery request for production of documents was not appealable under the then existing rule which permitted an interlocutory appeal from an order for the "delivery . of any ... documents". More enlight ening, perhaps, is Western Union Telegraph Co. v. Locke (1886) 107 Ind. 9, 7 N.E. 579, as quoted by the majority here. As noted in Locke, delivery of a document is more than the production of a document, for "delivery imports a surrender ..." 7 N.E. at 582.
The order involved in this appeal concerns more than production of information. To be sure, the end sought to be achieved by defendants is an ex parte conversation with plaintiff's physicians in the hope or expectation of gaining evidentiary matter for trial. Nevertheless, the order does not direct the production of any document; rather, it orders the execution of an instrument which constitutes the "surrender" of the patient-physician privilege. Moreover it compels this surrender in a setting which does not even permit plaintiff's counsel to be present. It is not an order which, as in Hogan, or Greyhound Lines, directs the production of documents. Our case involves an order for the "execution of [an] instrument of writing" App.R. 4(B)(1).
Be that as it may, our Supreme Court has in Lytle, supra, applied the holding of Hogan to an order for the execution of an instrument in writing, which is in anticipation of litigation and which therefore bears a similarity to the discovery orders heretofore discussed. We are bound by the Supreme Court's order in Lytle even though it may appear that a better course would be for that Court to modify the Appellate Rule. I therefore concur in the dismissal of this appeal.
SHARPNACK, C.J., joins in this concurring opinion.
. In its footnote 2, the majority correctly and appropriately notes that the Court of Appeals Memorandum Decision which treated the merits of the appeal in Lytle v. Miller may not be regarded as precedent nor cited to any court. This prohibition contained in App.R. 15 (A)(3) does not, however, relate to unpublished decisions or orders of our Supreme Court or from any court other than the Indiana Court of Appeals. See Barco Beverage v. Alcoholic Beverage Commission (1991) 2d Dist. Ind.App., 571 N.E.2d 306.