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Leadholm v. City of Commerce City

United States District Court, D. Colorado

December 4, 2017




         On August 8, 2017, the Court issued an order following review in camera of certain medical records Plaintiff had withheld from Defendants pursuant to the physician-patient privilege. Defendants did not challenge application of the privilege but, rather, whether the Plaintiff waived the privilege by inserting his health into the case by seeking recovery for health-related injuries. The Court erroneously (but without objection) applied the physician-patient privilege recognized in Colorado to seven pages of medical records in this case and determined whether they were properly redacted. See ECF No. 100.

         Now, Defendants seek the Court's review of forty[1] additional pages of medical records redacted by the Plaintiff and ask the Court to compel the Plaintiff to produce unredacted copies of the same. Citing Colorado law, Defendants contend that through both written and oral discovery, the Plaintiff has waived any privilege by placing his mental health at issue in this case as an injury for which he seeks relief. Plaintiff counters that only information not related to this case or to the Plaintiff's injuries has been redacted from the records. Defendants reply that any information suggesting “(i) pre-existing conditions related to claimed conditions, (ii) alternative causes for claimed conditions, and (ii) pre-or postincident events related to claimed conditions” is relevant and discoverable. Reply 2.

         At the Court's request, the Plaintiff provided the Court with both redacted and unredacted copies of the challenged records for in camera review. To determine whether the records are properly redacted, the Court must consider both the Plaintiff's allegations and the applicable law. The allegations of this case were wholly set forth in my August 8, 2017 order (see ECF No. 100) and the applicable legal standards follow.

         Applicable Law

         Rule 26(b)(5) of the Federal Rules of Civil Procedure governs the withholding and production of privileged materials in a federal lawsuit. As pertinent here, Rule 26(b)(5) states:

(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

Fed. R. Civ. P. 26(b)(5).

         Plaintiff brings two claims in this case pursuant to 42 U.S.C. § 1983: (1) excessive force in violation of the Fourth Amendment; and (2) deliberately indifferent training in violation of the Eighth/Fourteenth Amendments. In federal question cases such as this one, [2] federal privilege law controls, and no physician-patient privilege exists under federal law. Whalen v. Roe, 429 U.S. 589, 602 n. 28 (1977) (“The physician-patient ... privilege is unknown to the common law.”); see also Fed. R. Evid. 501 (“Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”).

         However, the Supreme Court established the federal psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S. 1 (1996), holding 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.” Id. at 15. Communications must be made in the course of diagnosis and treatment. Id. The privilege also protects notes made during the course of treatment. Dorato v. Smith, 163 F.Supp.3d 837, (D. N.M. 2015) (citing Jacobs v. Conn. Cmty. Tech. Colls., 258 F.R.D. 192, 195 (D. Conn. 2009)). Furthermore, the Supreme Court determined, “[l]ike other testimonial privileges, the patient may of course waive the protection, ” but gave no further explanation as to when such waiver might occur. See Jaffee, 518 U.S. at 15 n.14. “Numerous courts since Jaffee have concluded that, similar to attorney-client privilege that can be waived when the client places the attorney's representation at issue, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue.” Fisher v. S.W. Bell Tele. Co., 361 F. App'x 974, 978 (10th Cir. 2010) (quoting Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000)) (holding that a plaintiff who makes a request for emotional distress damages places his psychological state in issue and entitles a defendant to his mental health records).

         In the absence of any privilege, a plaintiff's medical records are governed by issues of relevance and confidentiality commonly addressed in civil lawsuits. See Fed. R. Civ. P. 26(b) and (c). Courts typically construe the scope of discovery broadly; however, a court must “limit the frequency or extent of discovery otherwise allowed . . . if it determines that . . . the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C)(iii). Rule 26(b)(1) describes the scope of discovery as:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1).

         Generally, “[w]hen the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.” Simpson v. Univ. of Colo., 220 F.R.D. 354, 359 (D. Colo. 2004) (citations omitted). However, “when [the] ...

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