Hertog v. City of Seattle

943 P.2d 1153, 88 Wash. App. 41
CourtCourt of Appeals of Washington
DecidedSeptember 22, 1997
Docket37291-2-I
StatusPublished
Cited by16 cases

This text of 943 P.2d 1153 (Hertog v. City of Seattle) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hertog v. City of Seattle, 943 P.2d 1153, 88 Wash. App. 41 (Wash. Ct. App. 1997).

Opinions

Cox, J.

— At issue in this case is the propriety of a discovery order that denies access to treatment records and prohibits deposition testimony of treatment providers for Barry Krantz, a convicted sex offender. In the interest of judicial economy, we also address the propriety of the denial of summary judgment to the two municipalities [46]*46that simultaneously exercised supervision over Krantz at the time he raped a six-year-old girl.1

Barry Krantz raped six-year-old S.H. Krantz was on probation with the City of Seattle following convictions for lewd offenses when he committed the rape. Sid Hoover was Krantz’ probation officer. Krantz was also being supervised by King County Court Services while awaiting trial in King County Superior Court on a burglary charge with a sexual motivation allegation. Tyrone Lake was his pretrial counselor. Following Krantz’ conviction for raping S.H., her guardian brought this action against the City of Seattle and King County for negligent supervision of Krantz. The City and County both moved for summary judgment. In response, S.H.’s guardian ad litem, John Hertog, sought a continuance of the hearing of the motion, discovery of treatment records for Krantz, and the deposition testimony of two of his treatment providers.2 The judge before whom the summary judgment motion was pending granted the request for continuance of the hearing. Another judge denied the requested discovery. The trial court ultimately denied both motions for summary judgment. A commissioner of this court granted discretionary review of the discovery order as well as the denial of the summary judgment motions by the City and County. We affirm in part and reverse in part.

I

Privilege

Hertog sought discovery of the records and testimony of Dr. Von Cleve, a psychologist with Correctional Specialties, and Megan C. Kelley of Professional Alcohol & Drug Services. Dr. Von Cleve was treating Krantz for sexual deviancy. Kelley evaluated Krantz with respect to his [47]*47alcohol and drug abuse. It is not clear from the record whether Kelley provided treatment to Krantz. For purposes of our analysis, we assume she was providing treatment.

Hertog first argues that Krantz had no reasonable expectation that either the records or the communications would be kept confidential. He next argues that Krantz waived the privilege by signing a release allowing Dr. Von Cleve to disclose information to Sid Hoover of Seattle Municipal Probation. Finally, he argues that Krantz did not assert his privilege and the City does not have standing to assert Krantz’ privilege.

The City opposed discovery on the basis of its assertion that the records and communications are privileged because they were made for the purpose of Krantz’ treatment, not for the purpose of making recommendations to the court. It next argues that the release Krantz signed was limited in scope and does not establish that Krantz intentionally and voluntarily relinquished his privilege.

We hold that Krantz had no reasonable expectation that his communications with either Dr. Von Cleve or Megan Kelley would remain confidential. Thus, there was no privilege, and discovery of the records and deposition testimony is not barred.

We review an order denying a motion to compel discovery for abuse of discretion.3 Abuse is "discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.”4

The scope of discovery is broad and is subject to narrow exceptions, one of which is privileged material.5 The psychologist-patient privilege is defined by statute:

Confidential communications between a client and a [48]*48psychologist shall be privileged against compulsory disclosure to the same extent and subject to the same conditions as confidential communications between attorney and client 6

This privilege does not apply where the person with the privilege has no reasonable expectation that the communications would be confidential.7 A person may not claim a privilege "as to communications that do not originate in the confidence that they will not be disclosed.”8 We must therefore determine the nature of Krantz’ reasonable expectations in light of the circumstances surrounding his communications with Dr. Von Cleve.9

Where communications are made for the purpose of reporting to an agency or court, they are not privileged.10 In J.N. v. Bellingham School District, the court held that an assessment by a school psychologist made for the purpose of determining a student’s need for special education services was not privileged.* 11 Likewise, in Post, the court held that the defendant’s interview with a psychologist was not privileged where the purpose of the interview was to make a recommendation to Department of Corrections personnel.12

The courts have also held that where a patient is warned that the communications would not be confidential, the privilege does not apply.13 In King, this court held that where substantial evidence supported the trial court’s [49]*49finding that King was warned that his disclosures in therapy might be released to the court, there was no privilege.14 Similarly, in Post, the psychologist informed the defendant that his communications were not confidential.15

Here, the municipal court ordered Krantz to participate in treatment as a condition of his continued probation. He signed a consent form for the release of information by Dr. Von Cleve to Sid Hoover, the probation officer. The form stated, in relevant part, that:

I hereby consent to a mutual exchange of information between Kenneth Von Cleve and Sid Hoover, Seattle Municipal Probation. The purposes of the disclosures are to provide referral information and to inform Seattle Municipal Probation of diagnosis, attendance and non-attendance, treatment issues, progress, prognosis and completion.16

Given the scope of the information, including treatment issues, that Krantz authorized to be disclosed to the probation officer, Krantz could not have reasonably expected that his communications with Dr. Von Cleve would be privileged. Krantz knew or reasonably should have known that his communications with Dr. Von Cleve and the records maintained by the psychologist would be used to monitor performance for probation purposes.

The City argues that State v. Sullivan17 controls this case. It contends that under Sullivan, communications made during treatment, as opposed to forensic examinations, are privileged. But as to the psychologist-patient privilege, our Supreme Court recently stated that even where communications take place for the purpose of treat[50]*50ment, a patient who has been informed that there is no confidentiality cannot assert the privilege.18

The trial court abused its discretion by denying the motion to compel discovery of Dr. Cleve’s information regarding Krantz.

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Hertog v. City of Seattle
943 P.2d 1153 (Court of Appeals of Washington, 1997)

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Bluebook (online)
943 P.2d 1153, 88 Wash. App. 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hertog-v-city-of-seattle-washctapp-1997.