United States District Court, N.D. Illinois, Eastern Division
May 9, 2005.
JAMES E. McROY, Plaintiff,
CITY OF CHICAGO POLICE OFFICER BRIAN JOHNSON, in his individual capacity, and CITY OF CHICAGO POLICE OFFICER TIMOTHY MURPHY, in his individual capacity, Defendants.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
James E. McRoy has sued defendants pursuant to 42 U.S.C. § 1983
for their alleged violations of his Fourth and Fifth Amendment
rights. The case is before the Court on plaintiff's motion for
review of, and objections to, Magistrate Judge Keys' March 23,
2005 Order ("Order") granting defendants' motion to compel
plaintiff to produce his mental health records. For the reasons
stated below, the Court vacates the Magistrate Judge's Order and
denies the motion to compel.
On July 19, 2004, plaintiff filed his first amended complaint
alleging that: (1) on April 17, 2002, defendants found plaintiff
unconscious and bleeding from a stab wound to his chest and
lacerations on his wrists when they went to his home to arrest
him for an unspecified crime (First Am. Compl. ¶¶ 12-13); (2)
defendants arrested him while he was unconscious and took him to
Cook County Hospital where plaintiff was held, handcuffed to the
bed, until April 21, 2002 (id. ¶¶ 13-14, 18); (3) defendants
visited the hospital several times between April 17 and April 21,
2002 to interrogate plaintiff (id. ¶¶ 16, 21); (4) during these visits, defendant
Johnson physically and verbally abused plaintiff in an effort to
coerce him into making a statement and defendant Murphy did
nothing to stop the abuse (id. ¶¶ 16-25); and (5) as a result
of defendants' acts and omissions, plaintiff suffered
"substantial injury" (id. ¶¶ 37, 43, 48, 54).
On December 29, 2004, defendants sent discovery to plaintiff
seeking, among other things, information and documents pertaining
to plaintiff's present and past mental condition and treatment,
including mental health records. Plaintiff refused to produce the
information on the grounds that it is privileged. Consequently,
defendants filed a motion to compel.
On February 22, 2005, the Court referred defendants' motion to
compel to Magistrate Judge Keys. On March 23, 2005, Judge Keys
granted the motion. In relevant part, Judge Keys' ruling states:
Defendants' motion to compel production of
plaintiff's psychiatric and medical records is
granted. Considering the circumstances of this case,
the Court finds that Plaintiff's psychiatric
condition-prior to and subsequent to the incidents
that gave rise to the complaint herein-is at issue
herein, even though his carefully drafted complaint
did not put it in issue. Said medical records to be
produced no later than 4/6/05.
(See Order). Plaintiff contends that the Order is incorrect as
a matter of law.
We can set aside Judge Keys' Order only if it is "clearly
erroneous or contrary to law." FED. R. CIV. P. 72(a);
28 U.S.C. § 636(b)(1)(A). Plaintiff says that it is because the Order
conflicts with the Supreme Court's decision in Jaffee v.
Redmond, 518 U.S. 1 (1996). In Jaffee, the Supreme Court 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." Id. at 15. Moreover, the
Court rejected the notion that the privilege could be overcome by
a compelling need for the evidence: "Making 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. at 17.
The psychotherapist privilege can, however, be waived. Id. at
15 n. 14. The Supreme Court did not discuss the circumstances
that constitute waiver, but courts in this district have held
that a party waives the privilege if he puts his mental health at
issue in the suit. See, e.g., Santelli v. Electro-Motive,
188 F.R.D. 306, 308 (N.D. Ill. 1999) ("One way a privilege holder can
waive the privilege is by affirmatively putting the privileged
communications directly at issue in a lawsuit."); Wynne v.
Loyola Univ. of Chic., No. 97 C 6417, 1999 WL 759401, at *2
(N.D. Ill. 1999) ("Since the attorney-client privilege is waived
when the advice of counsel is placed at issue in the litigation,
the same result should apply to the psychotherapist-patient
privilege when a plaintiff's mental condition is placed at
Plaintiff has not done that. He does not assert a claim for
intentional infliction of emotional distress, he does not seek
damages for emotional harm and he has represented that he will
not "introduce evidence from a psychotherapist at trial regarding
mental or emotional symptoms." (Pl.'s Mot. Review & Obj.
Magistrate Judge's Order at 8.) In fact, Magistrate Judge Keys
acknowledged as much in his Order, saying that plaintiff's
"carefully drafted complaint [does] not put [his mental or
emotional condition] in issue." (See Order.)
Yet, the Magistrate Judge granted defendants' motion to compel
because "the circumstances of this case, [place in issue]
Plaintiff's psychiatric condition . . . prior to and subsequent
to the incidents that gave rise to the complaint." (See id.)
Apparently, though he did not explain them, the "circumstances"
to which Judge Keys refers are that plaintiff was arrested for
murder and the wounds from which he was suffering when the police
found him were self-inflicted. (See Defs.' Reply Supp. Mot.
Compel at 2, 5.) Given those facts, defendants say, they are
entitled to plaintiff's mental health records because they cannot
defend against his claims without them. The Court disagrees on both counts. First, defendants do not
need plaintiff's mental health records to defend against his
claims. At base, this case is a credibility contest. If
plaintiff, in fact, deliberately harmed himself on the day of his
arrest, defendants can use that fact to attack his credibility,
with or without his mental health records.
Moreover, even if defendants did need the records, that would
not vitiate plaintiff's privilege. The Jaffee Court explicitly
rejected the notion that the psychotherapist privilege can be
overcome by a showing of need for the evidence. Jaffee,
518 U.S. at 17. Under Jaffee, defendants are entitled to
plaintiff's records only if he waived the privilege. Magistrate
Judge Keys did not make a waiver finding and we see no basis for
one. Absent that finding, the Order compelling plaintiff to
produce his mental health records is erroneous and must be
For the reasons stated above, plaintiff's motion for review of,
and objections to, Magistrate Judge Keys' Order granting
defendants' motion to compel [doc. no. 35] is granted. Judge
Keys' Order [doc. no. 31] is vacated and defendants' motion to
compel production of plaintiff's mental health records [doc. no.
24] is denied.
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