Estate of Turnbow v. Ogden City

254 F.R.D. 434, 2008 U.S. Dist. LEXIS 74356, 2008 WL 4446677
CourtDistrict Court, D. Utah
DecidedSeptember 26, 2008
DocketNo. 1:07cv114
StatusPublished
Cited by5 cases

This text of 254 F.R.D. 434 (Estate of Turnbow v. Ogden City) is published on Counsel Stack Legal Research, covering District Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Turnbow v. Ogden City, 254 F.R.D. 434, 2008 U.S. Dist. LEXIS 74356, 2008 WL 4446677 (D. Utah 2008).

Opinion

MEMORANDUM DECISION AND ORDER

PAUL M. WARNER, United States Magistrate Judge.

This matter was referred to Magistrate Judge Paul M. Warner by Chief District Judge Tena Campbell pursuant to 28 U.S.C. § 636(b)(1)(A).1 Before the court is the Estate of Jesse Turnbow and Jacinda Scruggs’s (collectively, “Plaintiffs”) motion to compel the production of the mental health records of Officer Ed Mahon (“Officer Mahon”), Officer John Sattelmair (“Officer Sattelmair”), and Officer Derek Draper (“Officer Draper”) (collectively, the “Defendant Officers”) from the Defendant Officers and Ogden City (collectively, “Defendants”).2 The court has carefully reviewed the memoranda and other materials submitted by the parties. Pursuant to civil rule 7-1 (f) of the United States District Court for the District of Utah Rules of Practice, the court elects to determine the motion on the basis of the written memoran-da and finds that oral argument would not be helpful or necessary. See DUCivR 7-l(f).

BACKGROUND

Plaintiffs are seeking the mental health records of the Defendant Officers. Plaintiffs argue that the Defendant Officers’ mental health records should be produced in discovery because they are relevant and not subject to the psychotherapist-patient privilege. In the alternative, Plaintiffs request that the court review the records in camera to determine the relevance and discoverability of the records.

On July 2, 2008, the court granted Plaintiffs’ alternative request and ordered that the mental health records be provided to the court for an in camera review.3 On August 12, 2008, counsel for Defendants provided some of the requested records to the court but also indicated that she experienced some difficulty in obtaining all of the records. Soon thereafter, however, counsel for Defendants obtained the remaining mental health records and delivered them to the court. Accordingly, the court is now in receipt of the following mental health records: (1) one pre-employment mental health evaluation of Officer Mahon, (2) four sets of mental health records for Officer Sattelmair, and (3) one post-shooting mental health evaluation of Officer Draper. The court has conducted an in camera review of the records and now renders the following ruling on Plaintiffs’ motion.

DISCUSSION

Plaintiffs argue that the requested records are relevant to their claims against Defendants because the records “can identify whether the officers were fit for duty, were prone to using excessive force, or whether Ogden City knew about these types of issues.”4 Plaintiffs also assert that the records are not protected by the psychotherapist-patient privilege because none of the Defendant Officers had a reasonable expectation that the records would be kept confidential. See, e.g., Scott v. Edinburg, 101 F.Supp.2d 1017, 1020 (N.D.Ill.2000) (“[T]he threshold requirement for the existence of the psychotherapist[-]patient privilege is that there be an expectation by the patient that the communications with the psychotherapist will remain with the psychotherapist and will not be disclosed to others.”). In response, Defendants assert that preemployment and post-shooting mental health records of the [437]*437Defendant Officers have no bearing on the reasonableness of their actions on the night in question. Defendants further argue that even if the records are deemed relevant, they are protected by the psychotherapist-patient privilege because the Defendant Officers expected that the communications would be kept private. Accordingly, the court must determine whether the records are relevant and, if so, whether they are protected by the psychotherapist-patient privilege.

Under rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed.R.Civ.P. 26(b)(1). The rule further states that “[rjelevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. “[A]t the discovery stage, the concept of relevance should be construed very broadly.” Gohler v. Wood, 162 F.R.D. 691, 695 (D.Utah 1995). Nevertheless, “the [United States] Supreme Court has underscored that ‘the requirement of Rule 26(b)(1) that the material sought in discovery be “relevant” should be firmly applied, and the district courts should not neglect their power to restrict discovery [to protect] “a party or person from annoyance, embarrassment, [or] oppression.” ’ ” Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir.2008) (quoting Herbert v. Lando, 441 U.S. 153, 177, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (quoting Fed. R.Civ.P. 26(b)(1), (c)(1))).

However, even if the mental health records are deemed relevant they still may be protected from discovery by the psychotherapist-patient privilege. In Jaffee v. Redmond, the Supreme Court recognized a psychotherapist-patient privilege, holding that “confidential communications between a licensed psychotherapist and [his or] her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.” 518 U.S. 1, 16, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). While the Court noted that as with “other testimonial privileges, the patient may of course waive the protection,” it declined to specify the “full contours” of the privilege or to delineate under what conditions the privilege may be waived. Id. n. 14, 18, 116 S.Ct. 1923.

Since Jaffee, federal courts have generally held that mental health records must be protected from discovery unless it can be demonstrated that the patient has no reasonable expectation that the communications will remain private. See, e.g., Scott v. Edinburg, 101 F.Supp.2d 1017, 1020 (N.D.Ill.2000) (concluding that no psychotherapist-patient privilege existed because prior to the evaluation, the police officer was informed that the evaluation and testing results would be reviewed by the police chief and the psychologist’s written report could be subpoenaed in a lawsuit); Kamper v. Gray 182 F.R.D. 597, 599 (E.D.Mo.1998) (rejecting the existence of a psychotherapist patient privilege because the police officer was aware that his mental health evaluations would be reported to his employer, and thus he “had no reasonable expectation of confidentiality regarding his communications with [the therapist]”). Accordingly, “[t]he determinative factor assessing the existence of a psychotherapist-patient privilege is whether an officer had a reasonable expectation of confidentiality relating to the ... counseling session or evaluation.” James v.

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Bluebook (online)
254 F.R.D. 434, 2008 U.S. Dist. LEXIS 74356, 2008 WL 4446677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-turnbow-v-ogden-city-utd-2008.