United States District Court, D. Colorado
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE
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.
Defendants seek the Court's review of forty 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.
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.
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).
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,  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
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).
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).
“[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] ...