Regina Garcia D. v. Patton
| Decision Date | 21 October 2014 |
| Docket Number | Civil Action No. 14-cv-01568-RM-MJW |
| Parties | REGINA GARCIA as Parent and Next Friend to T.D., a minor, Plaintiff, v. KELCEY PATTON and THE DENVER DEPARTMENT OF HUMAN SERVICES, Defendants. |
| Court | U.S. District Court — District of Colorado |
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Tiercel Duerson was convicted of an attempted sexual offense against a minor. As part of his probation agreement, he participated in mental-health and sex-offender counseling. The treatment records from that counseling are arguably privileged under Jaffee v. Redmond, 518 U.S. 1 (1996), but are also highly relevant to the case before theCourt—a civil case to which Mr. Duerson is not a party. Four motions concerning those records are now pending. As a matter of first impression, the Court concludes that a selective-waiver doctrine should apply under the present circumstances—and therefore, that these records are privileged and cannot be disclosed without Mr. Duerson's consent.
The Court has considered the motions and briefs, taken judicial notice of the court's file on this case, directed additional documents to be filed, and considered the relevant Federal Rules of Civil Procedure, statutes, and case law. The Court now being fully informed makes the following findings of fact, conclusions of law, and orders.
Mr. Duerson pled guilty to Attempted Sexual Assault on a Child on March 24, 2006, in Denver County District Court Case No. 05-CR-1546. The victim was his minor daughter, P.G. Mr. Duerson was sentenced to eight years of Sex Offender Supervised Probation. As a condition of his probation, Mr. Duerson was ordered to complete counseling and to sign a disclosure form for his counseling records. (Document 66-8, p.2. ( ) Colorado's Sex Offender Management Board referred Mr. Duerson to Redirecting Sexual Aggression, Inc. ("RSA") for treatment in May 2006. He violated his probation and was incarcerated from November 2007 until March2009, when he was released on parole. On parole, the Sex Offender Management Board referred Mr. Duerson to Progressive Therapy Systems ("PTS") for treatment.
According to the Complaint in this case, Denver's Department of Human Services removed Plaintiff's son, T.D., from Plaintiff's home in 2010 and placed him with his father, Mr. Duerson—resulting in severe abuse to T.D. at Mr. Duerson's hands. Plaintiff has sued the city under 42 U.S.C. § 1983 for doing so, acting as next friend of T.D. The records from Mr. Duerson's criminal case and sex-offender treatment are clearly relevant, and Plaintiff has subpoenaed those records from a number of sources. At issue here:
Like Mr. Duerson, DPD, PTS, and RSA are not parties to this lawsuit.
Mr. Duerson has not authorized the release of any information to Plaintiff or to Plaintiff's attorneys. However, as ordered by the sentencing court, he signed a HIPAA waiver form stating:
Polygraph examiner approved by the Colorado Sex Offender Management Board.
Abel Assessment of Sexual Interest/plethysmograph examiner.
Victim(s) therapist and other involved professionals.
Physician as indicated by the Interagency Community Supervision Team (monitored medication, antabuse, etc.)
Employer(s).
Federal, state, county, or city law enforcement agencies.
(Docket No. 31-3.) The form is a select-all-that-apply form; the foregoing options were selected in a version signed by Mr. Duerson in January 2007. There is an undated version of the form in the record selecting the same boxes. (Docket No. 35-2.) The context would suggest the undated version was signed in April 2006—and for purposes of these motions, the Court so finds.
As part of his treatment with PTS, Mr. Duerson was required to sign a form titled "Sex Offender Treatment Contract and Safety Plan." (Docket No. 33 p. 2 & n.1.) That contract included the following confidentiality provision:
Any report of suspected child abuse or neglect will be reported to the appropriate authorities, as required by state law.
You should know that signing this contract is, as required by SOMB standards (3.200), a waiver of confidentiality and a release of information to include but not limited to your supervising officer, community corrections staff, polygraph examiners, guardians ad litem or custodial relative of your victim, to the victim(s) who you have offended, and any other therapists who provide you with services. Progressive Therapy Systems agrees to safeguard your personal information and only release information to other parties in regard to your compliance and progress with treatment and information about your risk, threats and/or possible escalation of violence. Your waiver of confidentiality extends beyond termination until you provide written notice to discontinue this waiver to Progressive Therapy Systems.
In order to allow your supervising officer to monitor your treatment progress, treatment compliance, and your risk to others, your therapist will share information with your officer.
Any information that you hear about or from any group member is strictly confidential. Clients who disclose personal information about other clients to people outside their group are subject to termination from this treatment program.
It is undisputed that none of the parties in this case are within the scope of any of the confidentiality waivers signed or agreed to by Mr. Duerson. Further, there is no indication that any party has provided Mr. Duerson with notice of the subpoenas and the subject motions (Docket Nos. 22, 26, 31, and 57). The Court finds that Mr. Duerson has not been given notice nor provided due process as to the disclosure of the subpoenaed records.
While Plaintiff insists on production of the subpoenaed documents, Plaintiff has no objection to protective orders restricting access to those documents.
The Court finds that it has jurisdiction over the subject matter and over the parties to this lawsuit, that venue is proper in the state and District of Colorado, and that all parties have been given a fair and adequate opportunity to be heard.
Under Federal Rule of Civil Procedure 45(d)(3)(A)(iii), the Court must quash or modify a subpoena that requires disclosure of privileged or other protected matter. Here, because this is a federal-question case under 28 U.S.C. § 1331 and federal law will provide the rules for decision, any applicable privileges will be governed by federal common law. Fed. R. Evid. 501. That said, "the policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one." Jaffee, 518 U.S. at 12-13. Further, state confidentiality laws should be accommodated if it is possible to do so without undermining federalinterests. See Gottlieb v. Wiles, 143 F.R.D. 235, 237 (D. Colo. 1992); United States v. King, 73 F.R.D. 103, 105 (E.D. N.Y. 1976).
DPD, PTS, and RSA object to producing Mr. Duerson's treatment records on the basis of Colorado's psychotherapist-patient privilege. They cite Colorado Revised Statutes (C.R.S.) § 13-90-107(1)(g), and point out that the records cannot be disclosed, even in camera, without Mr. Duerson's...
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