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Garcia v. Patton

United States District Court, D. Colorado

October 21, 2014

REGINA GARCIA, as Parent and Next Friend to T.D., a minor, Plaintiff,
v.
KELCEY PATTON and THE DENVER DEPARTMENT OF HUMAN SERVICES, Defendants.

ORDER REGARDING CYNTHIA JAMISON, LPC'S AND PROGRESSIVE THERAPY SYSTEMS' OBJECTION BY SUBPOENAED THIRD PARTY (Docket No. 22); DENVER PROBATION'S MOTION TO PARTIALLY QUASH SUBPOENA DUCES TECUM DIRECTED TO THE DENVER ADULT PROBATION DEPARTMENT, OR ALTERNATIVELY, FOR ENTRY OF A PROTECTIVE ORDER (Docket No. 26); PLAINTIFF'S MOTION TO COMPEL AND OPPOSITION TO MOTION TO QUASH (SUBPOENA TO CYNTHIA JAMISON, LPC & PROGRESSIVE THERAPY SYSTEMS) (Docket No. 31); and PLAINTIFF'S MOTION TO COMPEL (SUBPOENA TO RSA, INC.) (Docket No. 57).

MICHAEL J. WATANABE, Magistrate Judge.

Tiercel Duerson was convicted of an attempted sexual offense against a minor. As part of his probation agreement, he participated in mental-health and sex-offender counseling. The treatment records from that counseling are arguably privileged under Jaffee v. Redmond, 518 U.S. 1 (1996), but are also highly relevant to the case before the Court-a civil case to which Mr. Duerson is not a party. Four motions concerning those records are now pending. As a matter of first impression, the Court concludes that a selective-waiver doctrine should apply under the present circumstances-and therefore, that these records are privileged and cannot be disclosed without Mr. Duerson's consent.

The Court has considered the motions and briefs, taken judicial notice of the court's file on this case, directed additional documents to be filed, and considered the relevant Federal Rules of Civil Procedure, statutes, and case law. The Court now being fully informed makes the following findings of fact, conclusions of law, and orders.

FACTUAL BACKGROUND

Mr. Duerson pled guilty to Attempted Sexual Assault on a Child on March 24, 2006, in Denver County District Court Case No. 05-CR-1546. The victim was his minor daughter, P.G. Mr. Duerson was sentenced to eight years of Sex Offender Supervised Probation. As a condition of his probation, Mr. Duerson was ordered to complete counseling and to sign a disclosure form for his counseling records. (Document 66-8, p.2. ("You shall attend and actively participate in a sex offender evaluation and treatment program.... You shall submit, at your own expense, to any program of psychological or physiological assessment and monitoring.... You shall sign Releases of Information to allow the probation officer to communicate with other professionals involved in your treatment program....") Colorado's Sex Offender Management Board referred Mr. Duerson to Redirecting Sexual Aggression, Inc. ("RSA") for treatment in May 2006. He violated his probation and was incarcerated from November 2007 until March 2009, when he was released on parole. On parole, the Sex Offender Management Board referred Mr. Duerson to Progressive Therapy Systems ("PTS") for treatment.

According to the Complaint in this case, Denver's Department of Human Services removed Plaintiff's son, T.D., from Plaintiff's home in 2010 and placed him with his father, Mr. Duerson-resulting in severe abuse to T.D. at Mr. Duerson's hands. Plaintiff has sued the city under 42 U.S.C. § 1983 for doing so, acting as next friend of T.D. The records from Mr. Duerson's criminal case and sex-offender treatment are clearly relevant, and Plaintiff has subpoenaed those records from a number of sources. At issue here:

• The Denver Probation Department ("DPD") received a subpoena for all records relating to Mr. Duerson. DPD has produced most of the requested documents, but has moved either to quash the subpoena or for a protective order as regards Mr. Duerson's treatment records, references to treatment in other documents, and the presentence investigation report. This motion is fully briefed.[1] (Docket Nos. 26, 34, 36, & 53.)
• Licensed Professional Counselor Cynthia Jamison and her employer, PTS, received a subpoena for all records relating to Mr. Duerson and also "[a]ll documents related to testimony provided, or prepared to provide, in Case No. 10-JV-0668 in the Denver Juvenile Court on or about January 22, 2013." PTS filed an objection, which this Court views as a motion to quash; Plaintiff moved to compel, and the motions are now fully briefed.[2] (Docket Nos. 22, 31, 33, & 35.)
• RSA received a subpoena for all records relating to Mr. Duerson. It declined to produce any records, citing confidentiality of mental-health records. Plaintiff has moved to compel. (Docket No. 57.)

Like Mr. Duerson, DPD, PTS, and RSA are not parties to this lawsuit.

Mr. Duerson has not authorized the release of any information to Plaintiff or to Plaintiff's attorneys. However, as ordered by the sentencing court, he signed a HIPAA waiver form stating:

I, Tiercel Duerson, authorize the exchange of and disclosure of information pertaining to me, between the Probation Department for the 2nd Judicial District, State of Colorado, and members of the Interagency Community Supervision Team. The persons to whom information will be disclosed pursuant to this authorization are:
Sex offender treatment evaluator/provider/program approved by the Colorado Sex Offender Management Board.
Polygraph examiner approved by the Colorado Sex Offender Management Board.
Abel Assessment of Sexual Interest/plethysmograph examiner.
Victim(s) therapist and other involved professionals.
Physician as indicated by the Interagency Community Supervision Team (monitored ...

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