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In re Sealed Cases

August 31, 2004


Appeals from the United States District Court for the District of Columbia (No. 02cv00401)

Before: Sentelle, Tatel, and Garland, Circuit Judges.

The opinion of the court was delivered by: Garland, Circuit Judge

Argued March 17, 2004

The appellant, an adult male who is a committed ward of the District of Columbia Mental Retardation and Developmental Disabilities Administration (MRDDA), appeals from a district court order requiring MRDDA to produce all of his records to counsel for plaintiffs who are suing MRDDA and the District. We conclude that the court abused its discretion by ordering production of the records without determining whether any are subject to the federal psychotherapist privilege recognized in Jaffee v. Redmond, 518 U.S. 1 (1996), and without weighing the probative value of the non-privileged records against the extent of the intrusion into the appellant's legitimate privacy interests. We therefore vacate the order and remand for further proceedings.


The plaintiffs in the district court -- the appellees here --are "two mentally retarded adult men" who are "wards of the District of Columbia government" and for whose care and well-being MRDDA is responsible. Compl. ¶¶ 1, 9. For several years during the 1990s they lived in a residential group home at 2303 Minnesota Avenue, S.E. The appellant here also is a "mentally retarded adult" man and "committed ward" of the District. Appellant's Br. at 1. He lived in the same group home beginning in mid-1997.

According to the complaint, the appellant sexually assaulted the plaintiffs at the group home. Compl. ¶¶ 12, 15. The complaint further alleges that, although the resident director of the facility notified District officials of those assaults, the District did nothing to protect the plaintiffs until it moved the appellant to another facility on August 31, 1998. The plaintiffs seek damages from the District under 42 U.S.C. § 1983 for violating their civil rights, and under various District of Columbia causes of action, including negligence.*fn1 The complaint asserts that the district court has federal question jurisdiction over the § 1983 claim, see Compl. ¶ 2 (citing 28 U.S.C. § 1331), and supplemental jurisdiction over the local law claims, id. (citing 28 U.S.C. § 1367(a)).

During pre-trial proceedings, the plaintiffs moved to compel production of the District of Columbia's "complete files" on the appellant. The District took no position on whether the files should be produced, either at that time or subsequently. On October 11, 2002, the district court granted the motion, directing that "the files of [appellant] shall be produced for inspection by the plaintiffs' counsel," and requiring that they be "treated as confidential" and used "only ... in connection with this litigation." Order, No. 02-401 (D.D.C. Oct. 11, 2002) (hereinafter October 2002 Order).

Thereafter, the appellant's guardian ad litem, appointed by the Superior Court of the District of Columbia, entered a special appearance to represent the appellant in connection with the requests for his "medical and ward files." Objecting to the breadth of the district court's discovery order, and contending that the documents were subject to a number of privileges, the guardian filed a motion for reconsideration and for a more extensive protective order pursuant to Federal Rule of Civil Procedure 26(c). Unconsented Mot. for Ct. to Reconsider at 1. On February 14, 2003, the district court denied the motion to reconsider and ordered that "defendant District of Columbia shall produce the relevant medical records of [appellant] to plaintiffs' counsel in accordance with the prior Order of this Court...." Order, No. 02-401 (D.D.C. Feb. 14, 2003) (hereinafter February 2003 Order).

The plaintiffs then asked the court for clarification, contending that the District should produce the appellant's "entire file," regardless of whether the records were "relevant" or "medical." 5/15/03 Tr. at 3, 4, 12. At a hearing conducted on May 15, 2003, the plaintiffs insisted that they were "entitled to receive any documents that might reasonably lead to the discovery of admissible evidence," and that they did not "want someone else saying, Well, we don't think this is relevant when we might in fact think it is relevant." Id. at 12. The appellant's guardian objected on the ground that some of the documents were privileged and confidential, and that the court had not weighed the plaintiffs' interest in the documents against the appellant's privacy interest. Id. at 5- 11. The court nonetheless granted the plaintiffs' request and directed that their counsel be allowed "to review the entire file and to tab those records that he believes will serve his evidentiary purposes in connection with this case." Id. at 15. The court further instructed plaintiffs' counsel to prepare a written order, which the court entered on August 7, 2003. The order stated:

[T]he mental retardation records of [appellant], including medical records and case notes, in the possession of defendant District of Columbia [shall] be made available to counsel for plaintiffs for review. Counsel for plaintiffs shall designate which records are to be produced in connection with this case....

Order at 1-2, No. 02-401 (D.D.C. Aug. 7, 2003) (hereinafter August 2003 Order).

The appellant, through his guardian ad litem, appealed the August 2003 Order requiring production of his MRDDA files.*fn2 On October 28, 2003, another panel of this court granted a stay of production pending appeal. We now consider the issues raised by the appellant.


We begin with a question of appellate jurisdiction. Plaintiffs-appellees contend that we lack jurisdiction because the district court's order was merely an interlocutory discovery order, rather than a final order subject to our review pursuant to 28 U.S.C. § 1291. Ordinarily, a decision is not considered final under § 1291 unless it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (internal quotation marks omitted). Under the collateral order ( Cohen) doctrine, however, an order qualifies as "final" under § 1291 if it: "(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) [is] effectively unreviewable on appeal ...

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