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Maryann Barmore,As Special Administrator of Mark A. Barmore, Deceased v. City of Rockford

August 29, 2012


The opinion of the court was delivered by: P. Michael Mahoney, Magistrate Judge United States District Court

Judge Phillip G. Reinhard

Magistrate Judge P. Michael Mahoney


Defendants Oda Poole ("Poole") and Stan North ("North") were police officers employed with the Rockford Police Department on August 24, 2009 when they fatally shot Mark Barmore. Plaintiff Maryann Barmore filed a suit in state court on October 8, 2009 as the administrator of Mark Barmore's estate. The complaint contains counts for wrongful death and survivorship based on allegations that the use of force by Defendants was not justified. On October 13, 2009, the Defendants removed the case to this court, and the parties initiated discovery on December 23, 2009. Defendants Poole and North were deposed on June 30, 2011 and July 1, 2011, respectively. They had second depositions on August 25, 2011. At all depositions, both Defendants refused to answer certain questions about their conversations with mental health professionals based on the psychotherapist-patient privilege. Defendants also refused to tender "fitness for duty" evaluations for Poole and North. Plaintiff sought an order compelling Defendants North and Poole to provide oral testimony regarding their mental health evaluations and requiring them each to tender their fitness-for-duty evaluations. After allowing the parties to brief Plaintiff's motion, the Magistrate Judge issued a Memorandum Opinion and Order granting the motion in part on February 7, 2012.

As to the fitness-for-duty evaluations, the Magistrate Judge considered the discussions of several other district courts that have addressed similar questions. Based on a review, the Magistrate Judge keyed on two issues: (1) whether the Defendants had a reasonable expectation of privacy under the circumstances; and (2) whether the policy interests described by the Supreme Court were applicable to the Defendants in this case. See Jaffee v. Redmond, 518 U.S. 1, 11 n.10, 116 S.Ct. 1923 (1996) (noting that "the entire community may suffer" if police officers are not able to receive confidential counseling and those in need of treatment remain on the job). The Magistrate Judge found that both Defendants had a reasonable expectation that their fitness-for-duty evaluations, and their underlying communications with fitness evaluators, would be shared with a limited number of police officials for a limited purpose. The Magistrate Judge also indicated that the policy considerations expressed by the Supreme Court supported the confidentiality of the evaluations. Ultimately, the Magistrate Judge held that the communications made by both officers in relation to their fitness-for-duty evaluations, and the evaluations themselves, were privileged. Defendant North's communications in relation to his application for disability benefits were not privileged. Finally, the Magistrate Judge held that the Defendants' communications with their treating psychotherapists, and the associated treatment records, were clearly covered by the patient-psychotherapist privilege. As a result of the Magistrate Judge's Order, Plaintiff and Defendant North filed Rule 72 objections to the District Court.

On May 15, 2012, the District Court issued a thoughtful order denying Defendant North's objection and granting Plaintiff's objection. The District Court indicated that it was only ruling on those parts of the Magistrate Judge's Order objected to by the parties, namely Defendant North's objection to the finding that his disability evaluation was not privileged and Plaintiff's objection to the finding that the fitness-for-duty evaluation was privileged.

As to the fitness evaluation, the District Court described the "dispositive question" as "whether a fitness evaluation such as those conducted with North and Poole involved the 'diagnosis and treatment' of the officers for the purpose of restoring their mental health." (Minute Order, Dkt. No. 135, May 11, 2012, p. 2.) On this question, the District Court held that the evaluation "clearly was not for the purpose of treatment." (Id.) The District Court found it a closer question on the issue of diagnosis, ultimately explaining that the context of the Jaffee decision indicated the Supreme Court only referred to diagnosis "in conjunction with the concept of treatment." (Id.) The District Court held that a psychological evaluation "related to the ability to perform the required functions of a police officer" was not within the meaning of "diagnosis related to treatment." (Id.) Because treatment was not the purpose of either officer's fitness-for-duty evaluation, the District Court held that neither the privilege nor the public interests described by the Supreme Court in Jaffee are applicable to the evaluations.

The District Court was careful to re-affirm the purposes underlying the privilege set forth in Jaffee, indicating that its ruling was "limited to the narrow circumstances of this case and should not be read in any way to apply to the situation of an officer voluntarily obtaining a psychological evaluation purely for treatment purposes." (Id. at 3.) The District Court found "the fitness evaluation to be categorically different from a psychological evaluation for purposes of medical diagnosis and treatment" in terms of the type of information obtained and the purposes for which the evaluation will be used. (Id.) The District Court added that "the motivations and expectations of the officer in providing information will vary with the nature of the particular evaluation." (Id.)

The District Court granted Plaintiff's objection, thereby reversing the Magistrate Judge's order in part and granting Plaintiff's motion to compel "disclosure of the fitness evaluations of both North and Poole to the extent set forth in [the District Court's] order." (Id.) At the same time, the District Court denied Defendant North's objection, and upheld the decision of this court that Defendant North's psychological evaluation related to his disability application should be disclosed. The District Court indicated that the parties should apply to the Magistrate Judge for rulings on any issues that arise as to the disclosures compelled in the District Court's order.

The parties have now returned to the Magistrate Judge for guidance. The District Court's order attempted to draw a clear line between the Defendants' meetings with personal treating psychotherapists (hereinafter referred to as "treaters") and their fitness-for-duty or disability evaluators (hereinafter referred to as "evaluators"). That line gets blurry. It appears that the fitness-for-duty and disability evaluators collected, reviewed, potentially incorporated, and may have even relied upon some information from North and Poole's treaters in conjunction with their fitness evaluations. Based on a belief that the use of treaters' notes and medical records opens the door to discovery of all treaters' records, Plaintiff issued broad subpoenas seeking mental health records and depositions from five psychotherapists Defendant Poole met with and six psychotherapists Defendant North met with. The Plaintiff not only subpoenaed the records of the evaluators, but went directly to the treaters with broad subpoenas seeking depositions plus all records or communications related to the Defendant officers.

The Magistrate Judge previously held that Plaintiff is not entitled to any information in the hands of treaters, and that decision was upheld by the District Court. Both the Supreme Court and the District Court explained in no uncertain terms that a privilege exists between the officers and those psychotherapists they sought out for diagnosis and treatment. In its Jaffee decision, the Supreme Court explicitly rejected any balancing component that would allow a court to overrule the privilege based upon the circumstances. Jaffee, 518 U.S. at 17.

Everyone agrees, however, the "patient" can waive the privilege. Id. at 15 n.14. The key question becomes whether the Defendants waived the privilege as to their mental health records by allowing this information to be reviewed by the evaluators.

The Magistrate Judge holds the mere fact that the evaluators may have reviewed certain documents from an officer's past or present treater does not automatically constitute a waiver of the clearly established psychotherapist-patient privilege. To find otherwise would place law enforcement personnel in a difficult position: either defy your employer's requirement to sit for a full fitness-for-duty evaluation, or agree to the terms of the evaluation and effectively surrender your psychotherapist-patient privilege in exchange for the possibility of keeping your job. Of course, a third option would be for officers to simply avoid seeing mental health professionals at all, or to be less than forthcoming when they do seek treatment, for fear that their actions in the line of duty may lead to their private treatment information becoming public.*fn1 Presenting police officers with such choices is in clear contravention of the public policy explained by the Supreme Court in Jaffee*fn2 , and would diminish the District Court's categorical distinction between treating and evaluating psychotherapists.

Plaintiff's subpoenas evidence a belief that such a waiver exists and therefore opens the door to unfettered access to any and all treaters and treatment records. Clearly, the subpoenas issued to the treaters are inappropriate at this time. The Magistrate Judge has no information to suggest that Poole or North provided any sort of general waiver of their psychotherapist-patient privilege with their treaters. As the Magistrate Judge's February 7, 2012 Memorandum Opinion and Order indicated, the Defendants were only informed that a very limited number of individuals would learn of the results of their evaluations. The Magistrate Judge now finds that the Defendants' decisions to sit for fitness-for-duty and disability evaluations constituted a limited waiver only of their conversations with the evaluators and the resulting reports. The Magistrate Judge is confident such a finding is consistent with the District Court's holding that the fitness evaluations must be disclosed, but that they are "categorically different from a psychological evaluation for purposes of medical diagnosis or treatment." (May 11, 2012 Minute Order, at 3.)

In addition to the privacy interest of the Defendants, there may be serious concerns about liability from the medical evaluators or treaters who are faced with decisions about the release of treatment records into public view over the objection of their patients. A poignant example of this can be found in the underlying facts of the Jaffee case, which involved a suit for excessive force and wrongful death against a police officer and the village that employed her after she shot and killed a suspect in the line of duty. The officer sought treatment after the incident, and her treating therapist*fn3 was reluctant to comply with multiple orders by the District Court compelling her to testify and produce documents about her conversations with her patient. Jaffee, 51 F.3d at 1351. The District Court eventually ordered sanctions against the defendant, including "an unfettered type of examination of [the officer's treating social worker]" by the plaintiff, based on the defendant's instruction to her therapist to not comply with a court order. The District Court also referred the matter of the therapist's non-compliance to the U.S. Attorney's Office for possible criminal contempt proceedings. See Brief of Respondents at 5, Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923 (1996) (No. 95-266). The Seventh Circuit supported the treater's refusal to divulge information, noting that "noncompliance with a court's order is justified when the order commands the revelation of privileged information, the disclosure of which would result in irreparable injury." Jaffee 51 F.3d at 1352 n.8 (citing In re Novak, 932 F.2d 1397, 1401 n.7 (11th Cir. 1991)). Ultimately, the Supreme Court affirmed the Seventh Circuit's reversal of the District Court on the issue of the privilege. In sum, the officer's treater was correct to maintain confidentiality, but was nevertheless faced with potential criminal contempt proceedings because of the ruling of the trial court. On the other hand, an improper release of the defendant's mental health information could have subjected her therapist to civil liability and/or criminal prosecution. See 740 ILCS 110/15, 110/16. The above simply illustrates the problems that may arise for the Defendants' mental health treaters unless the line between privileged and non-privileged materials remains clear.

In this case, the Defendants' treaters appear to have released their treatment records in accordance with a limited waiver conditioning said release on certain protections afforded by state and federal law, in addition to statements in the waiver limiting any redisclosure.*fn4 As the Supreme Court explained: the participants in the confidential conversation "must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all." 449 U.S., at 393, 101 S.Ct., at 684.

Id. At 18 (quoting Upjohn 449 U.S. 383, 393, 101 S.Ct. 677, 684 (1981)). Clearly, the mental health professionals involved in this case are participants to the conversations and are due some degree of predictability when they release confidential records. To provide that predictability, the Magistrate Judge finds the underlying records or conversations from the Defendants' treaters, even if relied upon by the evaluators, are not discoverable. Therefore, the Magistrate Judge holds that the production of the Defendants' mental health and treatment information is limited to the reports produced by the evaluators, and that the Plaintiff is not entitled to any underlying records or communications from the Defendants' treaters, even if they were relied-upon by the evaluators.

Based on the foregoing, the Defendants' motions to quash are granted. The court quashes all subpoenas issued to the Defendants' treating and evaluating physicians. The court understands that the reports produced as a result of the disability and fitness-for-duty evaluations have already been exchanged in discovery, and therefore, further compliance with the subpoenas issued to the evaluating psychotherapists is unnecessary. As to the original motion to compel seeking the Defendants' testimony regarding their fitness-for-duty evaluations, that motion is granted. The Defendants must answer questions relating to their conversations with the evaluating psychotherapists, though they may maintain the privilege as to any information that relates to direct discussions with or medical records from their respective treaters. The Plaintiff is granted one hour for the re-convened deposition of Defendant North and one hour for the re-convened deposition of Defendant Poole. The parties are to complete the re-convened depositions on or before the September 28, 2012 fact discovery cut-off date.

Plaintiff has also filed motions for sanctions against Defendants North and Poole based on their alleged interference with the subpoenas issued to the treaters and evaluators. The Defendants argue the deadline by which Plaintiff gave the treaters and evaluators to respond to the subpoenas effectively removed any opportunity for the Defendants to object. As this court and the District Court have made clear, the Defendants have a privacy interest in certain privileged information that the subpoenas requested. The subpoenas were issued by the Plaintiff to Defendant North's psychotherapists on June 22, 2012 and to Defendant Poole's psychotherapists on June 25, 2012.

Counsel for the Defendants received notice of the subpoenas on June 28, 2012. The subpoenas gave a deadline of July 2, 2012 to respond. Counsel for Poole, in conjunction with counsel for North, emailed Plaintiff's counsel on June 29, 2012 to indicate an intent to object to the subpoenas. The email requested an extension of the response deadline for the subpoenas because the court would not be available to hear a motion to quash until July 11, 2012, well after the response deadline. When they did not hear back from Plaintiff's counsel, Defendants' attorneys proceeded to issue letters to the psychotherapists instructing them not to respond to the subpoenas. In light of foregoing discussion of the motions to quash, the court finds that sanctions are not appropriate based upon the circumstances. Plaintiff's motions for sanctions are denied.

Lastly, Plaintiff has filed a motion asking that the court remove the protective order governing discovery in this case. A protective order was entered in this case on June 11, 2010 by agreement of the parties. The protective order was a private contract between the parties that the court approved. The court refuses to issue a blanket removal of the protective order at this time. The court notes that the protective order appears to be more broad that what current Seventh Circuit case law would allow in terms of filing materials with the court or entering them into evidence at trial. For these reasons, the court orders the parties to hold a Local Rule 37.2 conference and submit to the court a revised protective order within 21 days of this order. The parties are specifically directed to the recent General Order 12-0018 issued by the Northern District of Illinois, which created the Form LR26.2 Model Confidentiality Order. A copy of the General Order is attached to this Order.

The parties have 14 days from service of this order, as calculated under Rule 6, to file objections with Judge Reinhard pursuant to Fed. R. Civ. P. 72. Objections need not be presented as stated in L.R.5.3. A failure to file timely objections may result in waiver of issues on appeal.

E N T E R:

Form LR 26.2



Plaintiff v. ) Civil No. ) District Judge ) Magistrate ...

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