Speaker ex rel. Speaker v. County, San Bernardino

• Decision Date: 02 February 2000
• Docket Number: No. ED CV 94-141-RT.,ED CV 94-141-RT.
• Citation: 82 F.Supp.2d 1105
• Parties: Anne Marie SPEAKER, Nicole C. Speaker and Nicholas J. Speaker, By and Through their Guardian ad Litem Anne Marie Speaker, et al. v. COUNTY OF SAN BERNARDINO, et al.
• Court: U.S. District Court — Central District of California

Page 1105

82 F.Supp.2d 1105

Anne Marie SPEAKER, Nicole C. Speaker and Nicholas J. Speaker, By and Through their Guardian ad Litem Anne Marie Speaker, et al. v. COUNTY OF SAN BERNARDINO, et al.

No. ED CV 94-141-RT.

United States District Court, C.D. California, Eastern Division.

February 2, 2000.

Gary S. Casselman, Law Offices of Gary S. Casselman, Los Angeles, CA, for plaintiffs Albert Speaker, Jacquelyn Speaker.

E. Thomas Barham, Jr., Law Offices of Barham & Ostrow, Los Almitos, CA, for plaintiffs Anne Marie Speaker, Nicole Speaker, Nicholas J. Speaker.

Carol Ann Rohr, S. Frank Harrell, Franscell, Strickland, Roberts & Lawrence, Santa Ana, CA, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT MICHAEL Z. JOHNSON'S MOTION TO EXCLUDE AS EVIDENCE AT TRIAL COMMUNICATIONS BETWEEN DR. BONNIE MATHEWS AND HIM AS BEING PROTECTED BY THE PSYCHOTHERAPIST/PATIENT PRIVILEGE.

TIMLIN, District Judge.

The Court has read and considered Defendant Michael Z. Johnson ("Johnson")'s offer of proof re: application of psychotherapist/patient privilege,¹ Plaintiffs Anne Marie Speaker, Nicole C. Speaker and Nicholas J. Speaker, by and through their guardian ad litem Anne Marie Speaker, Anne Marie Speaker as special administrator of the Estate of John F. Speaker, Albert Speaker, and Jacqueline Speaker (collectively, "Plaintiffs")'s opposition, Johnson's reply, Plaintiffs' sur-opposition, and the supplemental briefing of both parties. Based on such consideration, the Court concludes as follows:

I.

BACKGROUND

This action arises from an incident on April 4, 1993 in which Johnson, a sergeant of the San Bernardino County Sheriff's Department ("Sheriff's Department"), shot and killed John Speaker ("Speaker") in front of his house. Shortly after the incident, Johnson attended two counseling sessions² with Dr. Bonnie Mathews ("Dr.Mathews"), a then licensed Marriage, Family, and Child Counselor ("MFCC").³

The County of San Bernardino had a policy which required any law enforcement officer who had been involved in a shooting to consult with a mental health counselor following the shooting incident. The sheriff's department would set up the counseling sessions in the sheriff's department offices. The officers were told that those meetings were confidential. Johnson's first meeting, if not his second, with Dr. Mathews was held pursuant to this policy.

Plaintiffs seek to question Dr. Mathews at trial regarding what Johnson told her during those sessions. Johnson claims that those conversations are privileged pursuant to the psychotherapist/patient privilege and, therefore, inadmissible as evidence.

II.

ANALYSIS

A. The Contours of the Psychotherapist/Patient Privilege

In 1996, the Supreme Court announced the creation of a psychotherapist/patient privilege under federal common law. See Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). In Jaffee, Mary Lu Redmond ("Redmond"), a police officer for the Village of Hoffman Estates, Illinois, shot and killed Ricky Allen ("Allen"), whom Redmond believed was about to stab someone. Allen's family filed an action against Redmond and the Village of Hoffman Estates, including a claim under 42 U.S.C. § 1983, and a wrongful death claim under Illinois law. See id. at 5, 116 S.Ct. at 1926.

The Village of Hoffman Estates employed a licensed clinical social worker, Karen Beyer, and after the shooting, Redmond participated in about 50 counseling sessions with Beyer. Id. The plaintiffs brought a motion seeking access to Beyer's notes from those sessions for use in cross-examining Redmond at trial. The defendants opposed the motion, contending that the notes were privileged under a federal psychotherapist/patient privilege.

In holding that the notes were privileged under a psychotherapist/patient privilege, the Court stated: "Effective psychotherapy ... depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears." Id. at 10, 116 S.Ct. at 1928. The Court further stressed that in the particular circumstances of the Jaffee case, "[t]he entire community may suffer if police officers are not able to receive effective counseling and treatment after traumatic incidents, either because trained officers leave the profession prematurely or because those in need of treatment remain on the job." Id. at 11, n. 10, 116 S.Ct. at 1929, n. 10.

The Jaffee Court also held that the federal psychotherapist/patient privilege extended to "confidential communications made to licensed social workers in the course of psychotherapy." Id. at 15, 116 S.Ct. at 1931. The Court noted that: "The reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker.... Today, social workers provide a significant amount of mental health treatment." Id. at 15-16, 116 S.Ct. at 1931.

Further, the Supreme Court analogized the privilege to the attorney/client privilege and stated that, as such, it could be waived. Id. at 15, n. 14, 116 S.Ct. at 1931, n. 14. However, the Court expressly refused to elaborate on the contours of the privilege and when and how it could be waived. Id. at 18, 116 S.Ct. at 1932.

B. General Application of the Psychotherapist/Patient Privilege

Johnson contends, for a number of reasons discussed below, that the psychotherapist/patient privilege applies to the communications between him and Dr. Mathews during their two meetings on April 4 and 7, 1993. Plaintiffs argue that the privilege does not apply.

1. Burden of Proof

The parties dispute which side has the burden of proof to establish that the privilege applies. In United States v. Blackman, 72 F.3d 1418, 1423 (9th Cir. 1995), the Ninth Circuit stated that the burden of proof, in the context of the attorney/client privilege, is on the party seeking to establish that the privilege applies. See also Clarke v. American Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir.1992). Because the Jaffee Court, in announcing the creation of a psychotherapist/patient privilege, relied on a detailed analysis of and analogy to the attorney/client privilege, see id. at 10-11, 116 S.Ct. at 1928-29,⁴ this Court is persuaded that the burden of proof for the psychotherapist/patient privilege is on the party seeking to establish that the privilege applies. Thus, because Johnson is invoking the privilege, he bears the burden of showing that the privilege applies to his consultations with Dr. Mathews.

2. State v. Federal Law

In their moving papers, the parties rely on the California law of privilege. This reliance is misplaced to the extent the parties argue that this Court must follow the state law of privilege. In Folb v. Motion Picture Industry Pension & Health Plans, et al., 16 F.Supp.2d 1164 (C.D.Cal.1998), the court decided that in federal question cases, federal privilege law governs, even as to supplemental state claims. See id. at 1169; see also Blackman, 72 F.3d at 1423.

In Jaffee, the United States Supreme Court discussed how state law interacts with federal privilege law. The Jaffee Court stated that "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, 116 S.Ct. at 1929-30. The Jaffee Court further explained that "any State's promise of confidentiality would have little value if the patient were aware that the privilege would not be honored in a federal court." Id. at 13, 116 S.Ct. at 1930. Thus, in announcing the existence of a federal p sychotherapist/patient privilege and a licensed social worker/client privilege, the United States Supreme Court relied, at least in part, on an evaluation of the law of the states. See id.

In enacting Fed.R.Evid. 501 (the federal law of privileges), the Advisory Committee, stressed that federal common law, and not the law of the states, governs federal privilege law. The Advisory Committee stated:

In those situations where a federal court adopts or incorporates state law to fill interstices or gaps in federal statutory phrases, the court generally will apply federal privilege law. As Justice Jackson has said:

A federal court sitting in a non-diversity case such as this does not sit as a local tribunal. In some cases it may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state.

D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315 U.S. 447, 471, 62 S.Ct. 676, 86 L.Ed. 956 (1942) (Jackson, J., concurring). When a federal court chooses to absorb state law, it is applying the state law as a matter of federal common law. Thus, state law does not supply the rule of decision (even though the federal court may apply a rule derived from state decisions), and state privilege law would not apply. See Charles A. Wright, Federal Courts 251-252 (2d ed.1970); Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946); De Sylva v. Ballentine, 351 U.S. 570, 581, 76 S.Ct. 974, 100 L.Ed. 1415 (1956); 9 Charles A. Wright & Arthur R. Miller, Federal Rules and Procedure § 2408.

Fed.R.Evid. 501 advisory committee's note.

Thus, the Court may look to state law to fill in gaps in federal common law, but state law cannot supply the rule of decision. Further, if the Court were to adopt a state's law of privilege, it becomes a matter of federal common law.

Therefore, because this action involves a federal question, federal privilege law governs and the parties' discussion of state privilege law is only applicable in so far as state law can be used as a guide to federal privilege law.

C. Application of the Psychotherapist/Patient Privilege to the Sessions Between Dr. Mathews and Johnson

The Court must now address whether the...