United States v. Blue

340 F. Supp. 3d 862
CourtUnited States District Court
DecidedSeptember 14, 2018
Docket3:18-CR-30038-RAL
StatusPublished

This text of 340 F. Supp. 3d 862 (United States v. Blue) is published on Counsel Stack Legal Research, covering United States District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Blue, 340 F. Supp. 3d 862 (usdistct 2018).

Opinion

ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

Defendant James Blue Jr. is charged with the aggravated sexual abuse of two children, CB and WWK. Doc. 1. According to Blue, the government intends to offer evidence under Rule 413 of the Federal Rules of Evidence that AM also made sexual assault allegations against Blue. Blue filed a motion seeking the following: 1) counseling records for CB from Capital Area Counseling as well as all records from the South Dakota Department of Social Services (DSS) concerning CB; 2) all DSS records concerning WWK, along with WWK's records from St. Joseph's Indian School, Crow Creek Middle School, Chamberlain Academy, Our Home, the New Beginnings Center in Aberdeen, and the Abbot House in Mitchell; and 3) certain records concerning AM from Child Protection Services in Brule County and Child's Voice in Sioux Falls, along with all records from DSS concerning AM. Docs. 36, 37.1

Blue asked this Court to issue a subpoena duces tecum under Federal Rule of Criminal Procedure 17(c) ordering that these records be produced to defense counsel or, in the alternative, to this Court *865for in camera review. Concluding that CB and WWK were entitled to notice under Rule 17(c)(3) but that AM was not, this Court directed the government to inform CB and WWK that Blue was seeking confidential information about them and to determine whether they wished to assert the psychotherapist-patient privilege. Doc. 38. The government has informed this Court that CB and AM are asserting the psychotherapist-patient privilege. Doc. 39. Although the government has been unable to reach WWK, it wishes to assert the privilege on her behalf.2 Doc. 39. The government argues that the psychotherapist-patient privilege bars disclosure of the records Blue seeks and that Blue has failed to satisfy the requirements of Rule 17(c). This Court addresses these arguments in turn.

I. Psychotherapist-Patient Privilege

The Supreme Court adopted the psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), where it held "that confidential communications between a licensed psychotherapist and 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. at 15, 116 S.Ct. 1923. Recognizing that the justifications for the psychotherapist-patient privilege applied with "equal force" to treatment by licensed social workers, the Supreme Court extended the privilege to cover "confidential communications made to licensed social workers in the course of psychotherapy." Id. Although the Supreme Court declined to define the parameters of the psychotherapist-patient privilege any further, it rejected the notion that the privilege was subject to a balancing test. Id. at 17, 116 S.Ct. 1923. In the Court's view, "[m]aking the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege." Id. In a footnote at the end of Jaffee, however, the Supreme Court recognized that there would be circumstances in which the privilege must yield, giving as an example a situation where "a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist." Id. at 18, 116 S.Ct. 1923 n. 19.

Blue's motion for a subpoena and the alleged victims' assertion of the psychotherapist-patient privilege raise two main issues: (1) whether the records Blue seeks fall within the privilege; and (2) whether the privilege trumps Blue's request for the records. As to the first issue, a party invoking the psychotherapist-patient privilege must show that her communications were made (1) confidentially; (2) to a licensed psychotherapist; and (3) during the course of diagnosis or treatment. United States v. Wynn, 827 F.3d 778, 787 (8th Cir. 2016) ; United States v. Ghane, 673 F.3d 771, 783 (8th Cir. 2012). Analyzing whether the records Blue seeks meet *866this test is difficult because this Court does not have the records and the parties have provided limited information about them. Nevertheless, this Court has enough information to make some preliminary observations.

To begin with, there is no evidence that the DSS records Blue requests for CB, WWK, and AM fall within the psychotherapist-patient privilege. DSS records for minor children usually consist of notes or reports by case workers concerning the child's background and current situation. Although DSS. records might record that a child is seeing a counselor or therapist and might even contain some information concerning the treatment, the DSS caseworker is not the person providing the mental health treatment. Absent any information that the DSS caseworkers here are licensed psychotherapists who were treating the alleged victims, the alleged victims' DSS records are not protected by the psychotherapist-patient privilege.

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340 F. Supp. 3d 862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-blue-usdistct-2018.