Hinkel v. Colling

• Decision Date: 30 June 2021
• Docket Number: Case No. 20-CV-166-NDF
• Parties: DEBRA R. HINKEL, as the duly appointed Wrongful Death Representative for the Estate of Robert Michael Ramirez, deceased; and as the duly appointed Administrator of the Probate Estate of Robert Michael Ramirez, deceased, Plaintiff, v. DEREK R. COLLING, individually and in his official capacity; DAVID O'MALLEY, individually and in his official capacity as the Sheriff of Albany County, Wyoming; ALBANY COUNTY BOARD OF COMMISSIONERS, a Wyoming body corporate and politic; and ALBANY COUNTY JOHN DOES I-X, real names unknown, in this their individual and official capacities, Defendants.
• Court: U.S. District Court — District of Wyoming

DEBRA R. HINKEL,as the duly appointed Wrongful Death Representative for the Estate of Robert Michael Ramirez, deceased;and as the duly appointed Administrator of the Probate Estate of Robert Michael Ramirez, deceased, Plaintiff, v. DEREK R. COLLING, individually and in his official capacity;

DAVID O'MALLEY, individually and in his official capacity as the Sheriff of Albany County, Wyoming;

ALBANY COUNTY BOARD OF COMMISSIONERS, a Wyoming body corporate and politic;

and ALBANY COUNTY JOHN DOES I-X, real names unknown,

in this their individual and official capacities, Defendants.

Case No. 20-CV-166-NDF

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

June 30, 2021

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL

THIS MATTER comes before the Court upon Debra R. Hinkel's ("Plaintiff") Motion to Compel Albany County Board of Commissioners to Produce Derek Colling's Psychological Records [ECF Doc. 82], which was filed on June 8^th, 2021. Defendant Derek Colling ("Colling") responded on June 15^th, 2021. ECF Doc. 84. Defendant Albany County Commissioners ("Albany County") responded on June 16^th, 2021. ECF Doc. 85. Plaintiff finished the briefing of this matter by filing her reply on June 19^th, 2021. ECF Doc. 89. The Motion was expected by the Court. On June 4^th, 2021, the Court held an informal discovery conference focused on this issue. Following the informal discovery conference, the Court entered a Minute Order scheduling deadlines for this motion. ECF Doc. 79. Lastly, on June 24, 2021, the Court reviewed the post-shooting psychological evaluation in-camera. Having now reviewed all motions and being fully apprised of the facts and circumstances of this Motion, the Court finds the following:

BACKGROUND

This is a civil rights and wrongful death case arising from the shooting of Mr. Robert Michael Ramirez. Pursuant to Plaintiff's negligent hiring and negligent retention claims against Albany County and Defendant David O'Mailey ("O'Mailey"), she seeks discovery of two psychological evaluations Colling underwent that were required during his employment; first on October 5^th, 2012 as a prerequisite to employment and a second on January 17^th, 2019 as a prerequisite to return to active duty after killing Robert Ramirez. ECF Doc. 82 pg 1. It is Plaintiff's position that these evaluations are highly relevant to the matter at hand, not privileged by the psychological-patient privilege, and production would not violate Colling's constitutional rights. Colling's argument against production of his evaluations focuses on his constitutionally-based privacy interests in personal matters. He argues that pursuant to the Tenth Circuit's Colorado Test, the Court should find he legitimately expected the evaluations to remain private even though the results were shared with his employer. Albany County's argument focuses solely on the applicability of the psychological-patient privilege.

Law

1. Scope of Discovery

Under Rule 26 of the Federal Rules of Civil Procedure parties to a lawsuit "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." Fed. R. Civ. P. 26(b)(1). The purpose of the rule is to allow broad discovery of relevant information, even if that information is not admissible at trial. Id.

Relevance is broadly construed to contemplate "discovery into any matter that bears on or that reasonably could lead to other matters that could bear on any issue that is or may be raised in a case." Sinclair Wyo. Refining Co. v. A&B Builders, Ltd., No. 15-CV-91-ABJ, 2017 WL 10309306, at *4 (D. Wyo. Oct. 31, 2017) (quoting Anaya v. CBS Broad., Inc., 251 F.R.D. 645, 649-50 (D.N.M. 2007)). The party seeking discovery bears the burden of proving relevance. Id. at *5. However, when the discovery request is facially relevant, the burden is on the party resisting discovery to establish: (1) that the request is not relevant or (2) that the relevance is so marginal that the potential harm outweighs the presumptionfavoring discovery. See Gordon v. T.G.R. Logistics, Inc., 321 F.R.D. 401, 403 (D. Wyo. 2017).

When analyzing proportionality, the Court looks at "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." Fed. R. Civ. P. 26(b)(1). The burden to prove disproportionality is on the party resisting discovery. Sinclair Wyo. Refining Co., 2017 WL 10309306, at *5.

Rule 37 provides enforcement mechanisms for Rule 34 and other discovery rules. According to Rule 37, if a party does not respond to an interrogatory or to a request for production, the party requesting the discovery may move the court to compel the opposing party to respond. Fed. R. Civ. P. 37(a)(2)(B). "[A]n evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4). Rule 37 prescribes sanctions for parties who fail to comply with discovery until after a motion to compel is filed against them. With some exceptions, when a party is compelled to provide discovery, or provides the discovery only after a motion to compel has been filed against it, Rule 37(a)(5) requires the court to order the responding party to pay the movant's reasonable expenses incurred in filing the motion. However, where parties have taken legitimate positions, courts generally conclude that justice requires that each party be responsible for their own fees and costs. Benavidez v. Sandia Nat'l Lab'ys, 319 F.R.D. 696, 720 (D.N.M. 2017).

2. Psychotherapist Privilege

United State Supreme Court recognized the "federal psychotherapist privilege" in Jaffee v. Redmond, 518 U.S. 1 (1996). Like most privileges, the psychotherapist privilege is rooted in the imperative need for confidence and trust. Id. at 10. The Jaffee court discussed the extremely sensitive nature of the discussions between a patient and his/her therapist and the importance of the confidence and trust necessary to effective care. Id. at 10. It would be difficult to obtain such free communication without the confidence of the patient that such information would remain private. The nature of such communications, if disclosed, would often lead to embarrassment, humiliation and disgrace. The Jaffee court further recognized that the subject privilege would serve public interests. "The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less that its physical health, is a public good of transcendent importance." Id. at 11. The privilege extends to confidential communications made to licensed psychiatrists, psychologists, and social workers in the course of psychotherapy. United States v. DeLeon, 426 F. Supp. 3d 878, 906 (D.N.M. 2019). That is, the communications must be made in the course of diagnosis and treatment. Id. at 905. Like other testimonial privileges, the patient may of course waive the protection. Id. (citing Jaffee, 518 U.S. at 15 n.14).

There has been a great deal of litigation concerning discovery of police officer's communication with therapists, regardless if the interaction was compulsory or voluntary.The courts seemingly agree on two key rules. First, the privilege does in fact attach to counseling sessions that an employer requires. See Speaker ex rel. Speaker v. County of San Bernardino, 82 F. Supp. 2d 1105 (C.D. Cal. 2000). Second, the inquiry turns on whether or not the officer knew that the counselor's report would be shared with his employer, i.e. if the privilege has been waived. See Speaker ex rel. Speaker v. County of San Bernardino, 82 F. Supp. 2d 1105 (C.D. Cal. 2000), Barrett v. Vojtas, 182 F.R.D. 177 (W.D. Pa. 1998), Boudreau ex rel. Boudreau v. Ryan, No. 00 C 5392, 2001 WL 1001156, at *4 (N.D. Ill. Aug. 24, 2001), Phelps v. Coy, 194 F.R.D. 606, 608 (S.D. Ohio 2000).

There are two ways the privilege may be waived. First, a party waives the privilege by placing his or her medical condition as issue. Fisher v. Sw. Bell Tel Co., 361 F. App'x 974, 978 (10th Cir. 2010). Second, a party waives the privilege if he or she has no reasonable expectation that the communications will remain private. Dorato v. Smith, 163 F. Supp. 3d 837, 886 (D.N.M. 2015). If a party is informed that evaluations, tests, therapy session notes, or any other information will be disclosed to his or her employer, that party cannot have a reasonable expectation of privacy. Id.

3. Due Process

Colling seeks to protect the pre-employment evaluation pursuant to the Fourteenth Amendment due process protection of personal privacy. Certain forms of personal information possessed by the state is protected from disclosure when a legitimate expectation exists that the information will remain private. Mangels v. Pena, 789 F.2d 836,839 (10th Cir. 1986). The Tenth Circuit has acknowledged that police officers have a right to prevent disclosure of personal matters within police personnel and investigative files. Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d 432 (10th Cir.1981). To determine whether these personal matters fall within the "zone of confidentiality", the court must apply the "Colorado Test". Under the test, the court must consider, (1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a...