MEMORANDUM OPINION AND AMENDED ORDER
THIS MATTER comes before the Court on: (i) the Plaintiffs’ Motion to Strike Defendants’ Affirmative Defenses and Officer Smith’s Defense of Doctor Patient Privilege [Doc. 10], filed May 14, 2014 (Doc. 13)(“MTS”); (ii) Defendant Martin Smith’s Motion for Protective Order, and Memorandum in Support, filed August 4, 2015 (Doc. •101)(“MPO”); (iii) the Plaintiffs’ Opposed Second Motion to Compel Discovery, filed August 25, 2015 (Doc. 106)(“MCD”); and (iv) the Defendants’ Motion, and Memorandum in Support, for the Court to Certify the Court’s Order [Doc. 117] and Pending Memorandum Opinion for Interlocutory Appeal, filed October 12, 2015 (Doc. 121)(“MTC”). The Court held hearings on September 14, 2015, September 24, 2015, and November 16, 2015. The primary issues are: (i) whether the Court should strike any of the Defendants’ affirmative defenses and responses, including their responses based on the physician-patient privilege; (ii) whether the Court should grant a protective order for Defendant Officer Martin Smith’s psychological records, because they are allegedly irrelevant to Plaintiff Veronica Dorato’s federal claim, privileged, or otherwise excluded from disclosure; (iii) whether the Court should compel the production of internal Albuquerque Police Department (“APD”) documents despite Smith’s privacy rights and the self-critical analysis privilege; and(iv) whether the Court should certify its Order, filed October 2, 2015 (Doc. 117)(“MPO/MCD Order”), to the United States Court of Appeals for the Tenth Circuit, because its decisions on the parties’ discovery dispute involve an allegedly controlling issue of law, and because an immediate appeal would allegedly materially advance the ultimate termination of the litigation. First,
Second, the Court concludes that, although there is a federal psychotherapist-patient privilege, Smith waived that privilege as to both records and examinations which he knew would be disclosed to others, and those documents generated at the direction of and for the benefit of the City of Albuquerque if it would see them. Any psychotherapy records within a third party’s control must be disclosed to the Defendants’ attorney, who must prepare a privilege log.
FACTUAL BACKGROUND
The Court takes its facts from the First Amended Complaint for Civil Rights Violations, filed April 8, 2015 (Doc. 73)(“Amend-ed Complaint”). The Amended Complaint contains facts that are common to all Counts, and gives two versions of events that Smith has provided to explain his actions. The Court will describe the facts that are common to all Counts, and then will describe Smith’s two versions of events, as the Amended Complaint alleges them.
1. Facts Common to Both Versions.
Smith served as an Army Ranger in Afghanistan, where he was involved in multiple engagements “resulting in extended exposure, conflict, loss of life, and other horrors of war.” Amended Complaint ¶¶ 7-9, at 2. After returning to Albuquerque, Smith was diagnosed with Post Traumatic Stress Disorder (“PTSD”), and the Veterans Affairs Hospital gave him a one-hundred-percent disability rating “based on the severity of his PTSD.” Amended
On March 19, 2012, at approximately 1:08 p.m. Smith responded to a call from dispatch concerning a black Sports Utility Vehicle (“SUV”) that was parked at an apartment complex at 8201 Marquette NE in Albuquerque. See Amended Complaint ¶ 15, at 3. An anonymous caller had informed the dispatcher that someone was possibly selling stolen items in the apartment complex’s parking lot. See Amended Complaint ¶ 16, at 3. The dispatcher advised Smith that the National Crime Information Center (“NCIC”) database did not list the SUV’s plates as stolen. See Amended Complaint ¶ 17, at 3.
At “approximately 1:13:55 pm,” Smith notified the dispatcher that he had arrived at 8201 Marquette Avenue NE. Amended Complaint ¶ 18, at 3. At 1:15:05 p.m., Smith called into dispatch “to ‘clear the air’ and [state] that he had made contact with the vehicle’s occupant, Daniel Tilli-son.” Amended Complaint ¶ 18, at 3. Smith conducted a felony stop by parking his patrol car directly behind the SUV. See Amended Complaint ¶ 19, at 4. He approached the SUV’s driver side window with his gun drawn and ordered Tillison to show his hands. See Amended Complaint ¶ 20, at 4. The SUV’s driver side window was open, and Tillison was talking on a black cellular telephone during the entire encounter with Smith. See Amended Complaint ¶ 21, at 4. Tillison told Smith that he did not do anything wrong, and he raised his hands, while holding the cellular telephone in his right hand. See Amended Complaint ¶ 22, at 4. Smith then suffered a PTSD related episode and fatally shot Til-lison. See Amended Complaint ¶ 23, at 4.
Between 1:16:09 p.m. and 1: 16:19 p.m., Smith called over his police radio “shots fired” and that the “subject tried running over me.” Amended Complaint ¶¶ 24-25, at 4. At 1:17:20 p.m., Smith told dispatch that Tillison appeared dead. See Amended Complaint ¶26, at 4. Officer George Trujillo arrived at the scene five seconds later. See Amended Complaint ¶ 27, at 4. At 1:17:38 p.m., Smith told the dispatcher that Tillison was the only person in the car, and that he was still in the car. See Amended Complaint ¶ 28, at 4. Other officers who arrived at the scene found that the SUV was in gear in reverse. See Amended Complaint ¶ 29, at 4. By 1:19:00 p.m., Tillison was gasping for air. See Amended Complaint ¶31, at 3. Tillison died at the scene. See Amended Complaint ¶ 32, at 5. APD confirmed that the stereo equipment in Tillison’s SUV was not stolen. See Amended Complaint ¶ 33, at 5.
Smith later told his co-workers that he blacked out and had a PTSD moment when he shot Tillison. See Amended Complaint ¶ 81, at 11. Smith did not issue any warnings that he was going to shoot. See
2. Version One.
Smith stated that, on March 19, 2012, he was performing his regular shift as a patrol officer. He was wearing a police uniform and driving a marked police car. See Amended Complaint ¶ 35, at 5. At approximately 1:08 p.m. on March 19, 2012, an APD dispatcher directed him to respond to a call at 8201 Marquette NE. See Amended Complaint ¶ 35, at 5. The anonymous caller had reported to the APD that someone was possibly selling stolen items in a parking lot and that the person’s car was a black SUV. See Amended Complaint ¶ 36, at 5. The dispatcher provided Smith with the SUV’s license plate number and advised him “that there was a ‘history’ with that plate.” Amended Complaint ¶ 37, at 5. Smith ran a “form inquiry” check on the plate, which indicated that it had been reported as stolen within the last week. Amended Complaint ¶ 37, at 5. He also ran an NCIC check, which indicated that the SUV was not stolen. See Amended Complaint ¶ 37, at 5. He then searched the area for the SUV. See Amended Complaint ¶ 38, at 5.
Smith located the black SUV in an apartment complex parking lot at 1:13 p.m. and stated that he was “on scene.” Amended Complaint ¶ 39, at 6. After he informed dispatch that the SUV appeared to be occupied, the APD instructed all other radio traffic to remain silent. See Amended Complaint ¶ 40, at 6.
Smith pulled into the parking lot, and parked his car at a semi-angle to the left side of the SUV. See Amended Complaint ¶ 40, at 6. There was a truck parked on the other side of the SUV, in the parking space directly to its right. See Amended Complaint ¶ 40, at 6. Smith saw a man moving inside the SUV. See Amended Complaint ¶ 41, at 6. He exited his patrol car and moved towards the SUV’s open window, ordering Tillison to put his hands outside the window. See Amended Complaint ¶ 41, at 6. Tillison then began moving around inside the SUV. See Amended Complaint ¶ 44, at 6. He looked back at Smith, reached down to his right side, and then reached around his seat into the back area. See Amended Complaint ¶ 44, at 6. Smith pointed his gun at the window and screamed: “Let me see your hands, let me see your hands. Put them outside the window now.” Amended Complaint ¶ 44, at 6. Tillison began to open the SUV’s window with his left hand, but Smith could not see Tillison’s right hand. See Amended Complaint ¶¶ 45-46, at 6. Tillison tried to open the SUV’s door, but Smith pushed the door shut, continuing to order Tillison to show his hands. See Amended Complaint ¶ 47, at 6.
When Smith was about an arm’s length away from the SUV, Tillison put the SUV in reverse and rammed it into Smith’s car and the truck that was parked on the other side of the SUV. See Amended Complaint ¶ 49, at 7. Smith began to move away from the SUV, and Tillison drove forward. See Amended Complaint ¶¶ 53-54, at 7. Smith discharged his firearm at the SUV’s tire, but he is unsure if the SUV was driving forward, driving in reverse, or not moving when he fired at the tire. See Amended Complaint ¶¶ 52-53, at 7. Tillison drove the SUV towards Smith, and, through the SUV’s window, Smith saw that Tillison had a black object in his hand that looked like a weapon. See Amended Complaint ¶¶ 55-
Smith believed that Tillison was going to shoot him, so Smith shot Tillison through the window. See Amended Complaint ¶ 57, at 7. Smith, initially, felt threatened by the SUV driving towards him, but he was able to move out of its way. See Amended Complaint ¶ 58, at 7. Smith was afraid of the black object in Tillison’s hand, and, because the SUV was still moving forward, he shot Tillison a second time, killing him. See Amended Complaint ¶¶ 58-59, at 7-8. Tillison fell back in his seat, and the SUV continued backwards between the truck and Smith’s car. See Amended Complaint ¶ 60, at 8. Smith retreated to the back of his patrol car, and reported to the dispatcher that shots had been fired and that Tillison had tried to run him over. See Amended Complaint ¶ 61, at 8. ' He made this call sixty-four seconds after making contact with the SUV. See Amended Complaint ¶ 61, at 8.
Smith returned to the SUV and found that Tillison’s hands were empty. See Amended Complaint ¶ 62, at 8. Tillison did not appear to be breathing, so Smith took him out of the SUV and laid him on the ground. See Amended Complaint ¶ 63, at 8. Smith called for rescue and .applied a combat bandage to Tillison. See Amended Complaint ¶ 64, at 8. Trujillo arrived at the scene, and he began to perform CPR on Tillison. See Amended Complaint ¶ 64, at 8. Other 'officers arrived, and they took Smith from the scene to be processed. See Amended Complaint ¶ 64, at 8. Smith was carrying a tape recorder, but said that there was not any tape in it, because his department was not issuing any more cassette tapes. See Amended Complaint ¶ 66, at 9. Smith had a lapel camera, but he stated that he did not have time to turn it on before the shooting. See Amended Complaint ¶ 66, at 9.
3. Version Two.
Smith approached the black SUV with his firearm drawn, because he believed that the occupant had been selling stolen goods, and because he believed that the SUV was stolen. See Amended Complaint ¶ 67, at 9. Smith “announced himself several times” and walked to the SUV driver’s door. Amended Complaint ¶ 68, at 9. He told Tillison to show his hands and identified himself as “Albuquerque Police,” but Tillison did not comply. Amended Complaint ¶¶ 68-69, at 9. Tillison looked directly at Smith and then began to reach around inside the SUV. See Amended Complaint ¶ 70, at 9-10. Tillison first reached down to the left side next to his seat. See Amended Complaint ¶ 70, at 9-19. He then turned in his seat to reach into the rear of the SUV. See Amended Complaint ¶ 70, at 9-19. When he came back around, Smith could see his left hand, but not his right hand. See Amended Complaint ¶ 70, at 9-19. Tillison tried to open the SUV’s door with his left hand, but Smith closed the. door and told Tillison to stay in the vehicle and to show his hands. See Amended Complaint ¶ 71, at 10. Tillison drove the SUV forward two or three feet, then placed it in reverse, and started reversing. See Amended Complaint ¶ 72, at 10. Smith then turned away from the SUV. See Amended Complaint ¶ 73, at 10. The SUV hit Smith’s vehicle, and Smith fired a round into the SUV driver side’s rear tire. See Amended Complaint ¶¶ 74-75, at 10. The SUV lurched forward, and Smith backed up until he was in about a five square feet area. See Amended Complaint- ¶¶ 76-77, at 10. Smith saw that Tillison’s left hand was on the steering wheel, while his right hand came across his body, holding a dark object, which Smith later learned was a cellu
PROCEDURAL BACKGROUND
Plaintiff Veronica Dorato
The Defendants answered the Complaint on April 25, 2014. See Defendants Martin Smith, the City of Albuquerque, and the City of Albuquerque Police Department’s Answer to Plaintiffs’ Complaint for Alleged Civil Rights Violations, filed April 25, 2014 (Doc. 10)(“Answer”). Paragraphs 12 and 13 of the Complaint alleged:
12. Upon information and belief, when Officer Smith returned to Albuquerque following his tour(s) of duty, he was diagnosed with Post Traumatic Stress Disorder (hereinafter “PTSD”).
13. Upon information and belief, the Veterans Affairs Hospital (hereinafter “VA Hospital”) gave Martin Smith a one hundred percent disability rating based on the severity of his PTSD.
Complaint ¶¶ 12-13, at 3. The Answer neither admitted nor denied these allegations, invoking “the physician patient privilege.” See Answer ¶8, at 2. It included nine conclusory affirmative defenses: (i) lack of standing; (ii) failure to allege claims for which relief can be granted; (iii) the APD’s non-suable entity status; (iv) reasonable suspicion and probable cause; (v) qualified immunity and immunity under the New Mexico Tort Claims Act (“NMTCA”), N.M.S.A. §§ 414-1 to -29; (vi) no clearly established constitutional violation; (vii) reasonable use of force under the totality of the circumstances; (viii) unspecified bars to recovery within the NMTCA; and (ix) Daniel Tillison’s contributory negligence or intentional misconduct. See Answer at 9-10.
1. The MTS.
Dorato filed the MTS on May 14, 2014. See MTS at 1. The MTS makes two primary arguments. See MTS at 2, 9. First, Dorato contends that the Answer’s nine affirmative defenses fail to meet the pleading standards that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal require. See MTS at 5 (explaining that, “[although no federal appellate court has determined whether Iqbal and Twombly apply to affirmative defenses, the majority rule among district courts is that that they do”). Do-rato points out that the Defendants asserted nine affirmative defenses without providing any supporting facts. See MTS at 6. She argues that other supposed affirmative defenses “are actually denials.” MTS at 8. She concludes that allowing these defenses to remain in the Answer would “unnecessarily complicate this case by allowing irrelevant and burdensome discovery, requiring briefing on meritless issues, and confusing the jury.” MTS at 2-3.
Dorato also argues that the Defendants cannot assert the physician-patient privilege to avoid responding to paragraphs 12 and 13 of the Complaint. See MTS at 9. She contends that “there is no longer a physician-patient privilege in New Mexico.” MTS at 9 (quoting Smith v. Ashby,
The Defendants responded on May 30, 2014. See Defendants’ Response to Plaintiffs Motion to Strike Defendants’ Affirmative Defenses and Officer Smith’s Defense of Doctor Patient Privilege, filed May 30, 2014 (Doc. 17)(“Response to MTS”). They acknowledge that there was no physician privilege at common law, but contend that New Mexico has created a statutory privilege at N.M. R. Evid. 11-504. See Response to MTS at 1-2. They note that Smith “is not relying on any diagnosed physical, mental or emotional condition as a claim or defense,” thus placing the case outside the statute’s exception. Response to MTS at 2 (citing N.M. R. Evid. 11-504). They explain that the reasonableness determination under the Fourth Amendment of the Constitution of the United States is objective, making it independent of an officer’s state of mind. See Response to MTS at 3. The Defendants then argue that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal do not apply to answers. See Response to MTS at 4-6.
Dorato replied to the Defendants on July 1, 2014. See Plaintiffs’ Reply to De
The Court ruled on the MTS on March 12, 2015. See Order, filed March 12, 2015 (Doc. 65)(“MTS Order”). The Court denied the MTS “insofar as it requests the Court to strike Defendants’ affirmative defenses .... ” MTS Order at 1. It granted the MTS, however, “insofar as it requests the Court to order the Defendants to either admit or deny the truth of the allegations asserted in paragraphs 12 and 13,” because, as it noted, “there is no federal physician-patient privilege.” MTS Order at 2.
2. The MPO.
Dorato filed the Amended Complaint on April 8, 2015. See Amended Complaint at 1. The Amended Complaint consolidates the excessive and unnecessary use of force, and unlawful seizure, claims into Count I. See Amended Complaint ¶¶ 100-104, at 13-14. It retains the state tort claims for assault, battery, false arrest, and false imprisonment in Count II. See Amended Complaint ¶¶ 105-113, at 14-15. Count III alleges that Defendant City of Albuquerque was negligent in hiring, training, supervising, and retaining Smith. See Amended Complaint ¶¶ 114117, at 15-16.
On July 22, 2015, Dorato served a Notice of Videotaped Deposition of Officer Martin Smith on Smith and the other Defendants via electronic mail. See Certificate of Service, filed July 22, 2015 (Doc. 98). The parties set the deposition for August 12, 2015. See MPO at 2.
The Defendants filed the MPO on August 4, 2015. See MPO at 1. The MPO seeks a protective order covering “information concerning the details of [Smith’s] military deployments and history; his disability rating; and confidential healthcare information.” MPO at 1. The Defendants make two primary arguments: (i) the information in question is irrelevant to any of the federal or state claims; and (ii) New Mexico’s physician-patient and psychotherapist-patient privileges apply to Dorato’s causes of action against the City of Albuquerque under state law. See MPO at 1-5. On the first point, the Defendants note that, in excessive force claims, the court must examine the reasonableness of a particular use of force “from the perspective of a reasonable officer on the scene” rather than with “20/20 hindsight.” MPO at 3
On the second point, the Defendants acknowledge that there is no federal physician-patient privilege, but argue.that state law privileges should apply to their state law claims. See MPO at 5. They cite rule 501 of the Federal Rules of Evidence, which states that, “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” MPO at 5 (citing Fed. R.Evid. 501). The Defendants also quote the Court’s decision in Vondrak v. City of Las Cruces: “The United States Court of Appeals for the Tenth Circuit has ... held that, where there are federal and state law claims, ‘[a]s to state causes of action, a federal court should look to state law in deciding privilege questions.’”
Dorato responded to the MPO on August 18, 2015. See Response to MPO at 1. First, she argues that all of her requested materials are relevant. See Response to MPO at 3-11. She mentions the great breadth of discovery under rule 26 of the Federal Rules of Civil Procedure. See Response to MPO at 3. She then cites Hutton v. City of Martinez,
Second, Dorato repeats her arguments on the federal physician-patient privilege, noting that “the federal claims asserted in a federal question case are governed by federal common law.” Response to MPO at 4. She quotes the Court’s MTS Order, which states that “there is no federal physician-patient privilege.” Response to MPO at 11 (quoting MTS Order at 2). She argues that, “[wjhere the application of state law would be clearly inconsistent with federal law, state law privileges do not apply.” Response to MPO at 2.
Officer Smith in applying for his job at APD had to disclose any mental or physical health issues he has or had and he was informed that APD had a right to review as well as he had a continuing duty to inform his employer as to any mental or physical health condition he may suffer from.
Response to MPO at 18. Dorato contends that the privilege is lost “when the material subject to protection is disclosed to a third party.” Response to MPO at 18 (citing United States v. Ryans,
The Defendants filed their Reply on September 4, 2015. See Defendant Martin Smith’s Reply to Plaintiffs Response to Motion for Protective Order, filed September 4, 2015 (Doc. 108)(“Reply to MPO”). The Defendants recognize that there is no federal physician-patient privilege, but argue that Smith could invoke New Mexico’s privilege because Dorato also brought a state law claim against the City of Albuquerque. See Reply to MPO at 1-2. The Defendants repeat that Smith’s medical and psychological condition is irrelevant under the “objectively reasonable officer” standard. Reply to MPO at 2. They deny that Smith would “claim that any alleged disabilities provided the objectively reasonable basis to use deadly force against decedent.” Reply to MPO at 2-3. They contend that the records are not relevant to Smith’s credibility, because Dorato “has not cited to any credible medical evidence that a person diagnosed with PTSD has hallucinations and/or otherwise lacks the capacity to testify as a witness.” MPO at 5. They mention that many cases ordering discovery of psychological records required the plaintiffs to first present them to the court for in camera review. See Reply to MPO at 6.
The Defendants, for the first time, assert that the federal psychotherapist-privilege covers any possible PTSD records. See Reply to MPO at 7. They also attempt to distinguish Hutton v. City of Martinez,
The Defendants also explain why the Court should not apply federal privileges to Dorato’s state law claims:
In Vondrak, this Court reasoned that the federal law privilege should apply because the medical information in Vondrak was relevant to both the federal and state law claims. Id. Here, as explained in Defendant’s motion, Plaintiff only seeks this information to prove her state law claim of Negligent Hiring and Retention.
Reply to MPO at 10.
The Defendants also dispute that Smith has waived any privileges. First, they note that the “Plaintiff cites to no authority that Officer Smith’s submission to a psychological exam as a condition of employment acts as a blanket waiver of his psychotherapist-patient privilege to anyone and everyone.” Reply to MPO at 11. They rely on one case for the proposition
The Court held a hearing on September 14, 2015. See Transcript of Hearing (taken September 14, 2015)(“Sept. 14 Tr.”).
The Court then discussed privilege issues with the Defendants. See Sept. 14 Tr. at 17:2018:10 (Court, Griffin). The Defendants drew a distinction between Smith’s “own personal psychological medical records” and “records that we would have [which] would pertain to any issue that came up on the job as far as him going to employee health or any injury related issue that occurred on the job.” Sept. 14 Tr. at 20:1-14 (Griffin). The Defendants said that they had no access to records in the first category and that Smith would have to waive the privilege before anyone could recover them. See Sept. 14 Tr. at 20:1-8 (Griffin). The Court made another proposal, offering to limit the permissible questions during Smith’s deposition, and to order the Defendants to obtain and conduct a psychotherapist-patient privilege review on Smith’s records. See Sept. 14 Tr. at 21:11-22:17 (Court). The Court specifically noted that “it seems to me that the plaintiff is going to be entitled to this hearing issue, the physical impairment.] The mental health records, I’m less certain that they can be gotten under [§] 1983.” Sept. 14 Tr. at 22:7-13 (Court). The Court added that it believed that Dorato would receive the hearing-
The Defendants referred the Court to their pleadings on the MTS, which they said laid out New Mexico’s evidentiary rules on the patient-physician and psychotherapist-patient privileges. See Sept. 14 Tr. at 23:1-13 (Court, Griffin).
The Court explained that Smith would have to execute a waiver, get his medical records, and ship them to his attorneys rather than to Dorato. See Sept. 14 Tr. at 35:3-7 (Court). It suggested that the Defendants prepare a privilege log for Smith’s relevant psychotherapy records. See Sept. 14 Tr. at 35:3-19 (Court, Griffin). The Defendants continued to argue in response that the information was irrelevant to the federal claims. See Sept. 14 Tr. at 37:9-17; 38:1-25 (Griffin).
Dorato then attempted to distinguish Jaffee v. Redmond,
The Court then analyzed Vondrak v. City of Las Cruces:
[I]f I order the documents to be produced under the federal claim, I’m not going to s[i]t here and restrict their you know, say well you can’t use them in anyway for the state claim for discovery purposes, you know, but at the same time, if they’re not going to be discoverable for federal, it seems to me that the state privileges limits you more.
Tr. at 48:16-22 (Court).
The Defendants requested specific limits on Smith’s deposition. They contended that “asking about his military service that occurred almost 10 years prior to this shooting” would be inappropriate, citing a similar case that Karen Molzen, Chief Magistrate Judge of the United States District Court for the District of New Mexico, decided. Sept. 14 Tr. at 50:3-21 (Griffin). In that case, the Defendants argued, Chief Magistrate Judge Molzen blocked a plaintiffs attempt to inquire into a police shooting defendant’s alleged PTSD. See Sept. 14 Tr. at 50:16-21 (Griffin). Chief Magistrate Judge Molzen allegedly found this line of questioning irrelevant, despite that the case, like this one, involved a municipal liability claim. See Sept. 14 Tr. at 50:24-51:10 (Griffin).
The. Court ended the hearing by explaining its decision. The Court: (i) required Smith to execute a waiver of his privileges as to his medical records; (ii) required Smith’s attorney to serve a subpoena with the signed waiver; (iii) required Smith’s attorney to produce a privilege log for the psychotherapy records (but not for medical records); (iv) allowed Dorato to make “robust questioning” at Smith’s deposition, including: “Have you seen a psychotherapist?” and questions on the dates Smith met with the psychotherapist; and (v) required the Defendants to produce all of the medical records related to Smith’s hearing under a protective order. Sept. 14 Tr. at 53:19-56:15 (Carpenter, Court, Griffin).
3. The MCD.
Dorato filed her MCD on August 25, 2015. See MCD at 1. The MCD first addresses a number of specific discovery disputes. See MCD at 1-4. Dorato seeks a copy of Smith’s APD personnel file and related documents, including his application, background check, training, evaluations, complaints, and medical/psychologir cal history. See MCD at 1-4. She argues that the Defendants have no legitimate reason to withhold any of these materials. See MCD at 1-4.
Second, Dorato attacks the Defendants’ argument that Smith has privacy rights that prevent disclosure. She notes that “public employees do not have a reasonable expectation of privacy in the facts contained within their investigation or personnel files.” MCD at 5 (citing Flanagan v. Munger,
Dorato also contends that the selficritical privilege analysis does not apply here. See MCD at 7. She states that any “matters of opinion,” such as files on citizen complaints against particular police officers, should be produced to the Court for in camera review or released outright. MCD at 7. She explains that “[t]he majority of courts conclude that public officers do not have a privacy interest in their interactions with the public.” MCD at 6.
Finally, Dorato contends that the attorney-client privilege does not shield certain documents related to the APD’s internal affairs investigations. See MCD at 9. She notes that the privilege “protects communications generated or received by an attorney giving legal advice, but does not protect communications derived from an
The Defendants responded to the MCD on September 11, 2015. See Defendants’ Response to Plaintiffs Second Motion to Compel, filed September 11, 2015 (Doc. lll)(“Response to MCD”). The Response to MCD accuses Dorato of misrepresenting the Defendants’ discovery responses and notes that “the main issue of dispute concerns the relevancy of documents that concern matters of opinion and internal investigations and whether such documents should be disclosed pursuant to a protective order so that they will remain confidential.” Response to MCD at 1.
The Defendants first focus on Smith’s internal affairs documents. See Response to MCD at 3. The Defendants point out that Dorato refused their offer to produce most of these documents under a protective order forbidding disclosure to non-parties and non-attorneys-of-record. See Response to MCD at 3. The Defendants cite to the “self-policing” or “self-critical analysis privilege,” which they say promotes candidness during internal investigations — if police officers’ disparaging statements became public in every case, it would “have a chilling effect on them willingness” to speak freely during future investigations. Response to MCD at 5 (citing King v. Conde,
The Defendants then argue that the Court should impose a protective order. See Response to MCD at 8-9. They explain that “confidential information should be subject to a protective order.” Response to MCD at 8 (citing Kelly v. Romines, No. MC 11-0047,
The Defendants also update the Court on ongoing negotiations with Dorato. They ask the Court to step in and perform an in camera review of four documents, Bates numbers COA1, COA12, COA46, COA52, to determine whether they are relevant or privileged. See Response to MCD at 9. They note that they are working with Dorato to narrow the request for training records. See Response to MCD at 9-10. Finally, the Defendants state that they already provided Smith’s performance evaluations to Dorato. See Response to MCD at 10.
The Court held initial discussions on the MCD as part of its September 14, 2015 hearing. See Sept. 14 Tr. at 62:1-3 (Court). Dorato argued that Smith had waived the privilege as to all files “already in the possession of the police department or the city.” Sept. 14 Tr. at 62:10-20 (Carpenter). The Defendants countered that either entity would require a release form to provide any records — that their mere possession of information “doesn’t mean that it’s discoverable, or that it’s waived to the entire world.” Sept. 14 Tr. at 62:18-23 (Griffin).
The parties debated the possibility of producing internal affairs records subject
Dorato’s counsel then stated that she had been able to obtain psychological reports in other cases evaluating APD officers’ judgment and whether they should be assigned to street patrols. See Sept. 14 Tr. at 68:1-15 (Carpenter). She added that the APD would have created a report for Smith in 2000, and that the Defendants would know which of the APD’s employees or contractors performed the tests. See Sept. 14 Tr. at 68:16-25 (Carpenter). The Court then concluded the hearing. It stated that it would grant the MCD and issue an opinion at a later date. See Sept. 14 Tr. at 70:10-11 (Court).
On September 14, 2015, the Defendants’ counsel sent an electronic mail transmission to the Court stating that she was “unclear” about the timeframe for records she should disclose and requesting a “brief telephonic hearing” on the issue. Electronic Mail Transmission from Stephanie Griffin, Deputy City Attorney, to K’Aun Wild, Courtroom Deputy, dated September 14, 2015 (Doc. 136)(“First Email”). The Court told Ms. Wild that the City of Albuquerque should talk to Dorato to determine whether there was any disagreement on its instructions. Ms. Wild responded to the electronic mail transmission by telephone the same day. The next day, the Defendants’ counsel sent a second electronic mail transmission. See Electronic Mail Transmission from Stephanie Griffin, Deputy City Attorney, to K’Aun Wild, Courtroom Deputy, dated September 15, 2015, filed September 15, 2015 (Doc. 136)(“Second Email”). The Second Email expanded the topics under discussion to include: (i) the timeframe for any medical record releases Smith had to sign; (ii) the precise scope within which the Court found that Smith had waived the psychotherapist privilege; and (iii) the timeframe for the City of Albuquerque to disclose records within its possession and control. See Second Email at 1. The Court instructed Ms. Wild to respond by telephone, and provided its hand-written responses on a printed version of the Second Email. See Second Email at 1. Ms. Wild again responded by telephone.
On September 18, 2015, the Defendants followed the Court’s instruction to confer with Dorato on the three points they raised in their Second Email. See Defendants’ Unopposed Motion for Expedited Telephonic Hearing at ¶¶8-9, at 3, filed September 18, 2015 (Doc. 113)(“MTH”). The Defendants moved for an expedited telephonic hearing later the same day. See MTH at 1. Their motion raised three primary issues. First, they objected to any disclosure of records that post-dated the shooting incident. See MTH ¶ 9, at 3. Second, they argued that the Court had to “specify the scope, if any, the Court finds that the psychotherapist-patient privilege is waived.” MTH ¶ 10, at 3-4. Third, they disputed whether “the Court directed
4. The Status Conference.
The Court held a telephonic status conference hearing on September 24, 2015. See Transcript of Hearing (taken September 24, 2015)(“Sept. 24 Tr.”). The Court began by stating its position on the issues that the Defendants raised in the MTH. It repeated that its discovery order would apply from “ten years prior to the date of [the] incident to the present.” Sept. 24 Tr. at 3:3-4 (Court). It explained that the City of Albuquerque had to disclose all documents in its possession because the scope of the waiver was relatively expansive. See Sept. 24 Tr. at 3:5-11 (Court). It also explained that Smith had to “do what he needs to do to make these [records] available,” including signing a release. Sept. 24 Tr. at 2:19-3:24 (Court).
Second, the Court addressed the possibility that some of the City of Albuquerque’s records would come from a psychiatrist or psychologist who helps officers deal with the emotional fallout from police shootings. See Sept. 24 Tr. at 5:5-14 (Court). The Court noted that these documents “would not be something that the city would ever see and that ... it’s almost like a service that the city is providing.” Sept. 24 Tr. at 5:11-14 (Court). It thus refused to require the Defendants to produce these records. See Sept. 24 Tr. at 5:16-21 (Court).
The Defendants questioned whether the Court could actually compel Smith to “waive his privilege,” given that the medical release forms state that release is contingent on voluntary consent without coercion. Sept. 24 Tr. at 6:14-24 (Griffin). The Defendants said they might be unable to obtain any records without a written order or a subpoena. Sept. 24 Tr. at 6:25-7:18 (Griffin). The Court proposed that Dorato prepare a draft order “that we can give ... to the psychotherapist and get these documents in Ms. Griffin’s hands.” Sept. 24 Tr. at 8:3-5 (Court).
Dorato then argued that the Court should broaden its required disclosures to encompass psychological records from earlier than ten years before the date of the shooting. See Sept. 24 Tr. at 8:13-12:6 (Carpenter, Court). She noted that the APD likely gave Smith a psychological examination when it initially hired him and another when it re-hired him in 2000. See Sept. 24 Tr. at 8:13-9:11 (Carpenter). She stated that she had the “right to those regardless of time frame.” Sept. 24 Tr. at 11:17-18 (Carpenter). The Defendants replied with a different understanding of the scope of this part of the order. See Sept. 24 Tr. at 15:21-18:22 (Griffin).
The Court attempted to resolve this problem by restating the temporal scope of various categories of documents. See Sept. 24 Tr. at 18:24-21:18 (Carpenter, Court, Griffin). The Defendants would need to produce records from third party providers from ten years before the date of the incident to the present. See Sept. 24 Tr. at 18:24-19:2 (Court). Documents of any date under the control of the City of Albuquerque’s contractual psychiatrist/psychotherapist, and created for the City of Albuquerque’s benefit, would be disclosed, although there would likely only be seven years available. See Sept. 24 Tr. at 19:2-25 (Court). Documents under the City of Albuquerque’s direct control in its employment, medical, and any other files would have to be disclosed regardless of date. See Sept. 24 Tr. at 19:2-17 (Court). The Court clarified that “for the City of Albuquerque’s benefit” included visits the City of Albuquerque required Smith to make, but excluded pure employee assis
The Court concluded the hearing by warning Smith that he was choosing a risky strategy. See Sept. 24 Tr. at 27:24-28:9 (Court). If Smith asserted the privilege as to certain documents, the Court explained, it would likely bar him from using those documents to defend himself at trial. See Sept. 24 Tr. at 25:16-26:15 (Court). The Court noted specifically that Dorato appeared to have many of the underlying documents through separate records requests. See Sept. 24 Tr. at 28:4-8 (Court).
5. The MTC.
On October 12, 2015, the Defendants moved for the Court to certify its Order to the Tenth Circuit for interlocutory appeal. See MTC at 1. The Defendants quote the relevant statute:
When a district judge, in making in a civil action an order not otherwise ap-pealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order....
MTC at 1-2 (quoting 28 U.S.C. § 1292(b)). The Defendants first argue that there is a controlling question of law with substantial grounds for difference of opinion. They note that “both parties cited cases from different jurisdictions in support of their respective positions which either supported or did not support the disclosure of this information.” MTC at 2. Their argument centers on whether state or federal privilege law applies to Dorato’s state law claims. See MTC at 2 (citing Vondrak v. City of Las Cruces).
Second, the Defendants complain that the Court arbitrarily, without analysis or explanation: (i) failed to “set any time limitations for the disclosure of records” from the City of Albuquerque and its contractors; and (ii) required the Defendants to provide records from third-party service providers from ten years before the incident to the present. MTC at 3. The Defendants argue that these rulings “deviate! ] from [the Court’s] prior rulings and the ruling by the Chief Magistrate Judge for this District.” MTC at 3.
Dorato responded two weeks later. See Plaintiffs Response in Opposition to Defendant’s Motion to Certify Order for Interlocutory Appeal [Doc. 121], filed October 26, 2015 (Doe. 123)(“Response to MTC”). Dorato emphasizes that certification “should be limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate final decision of controlling questions encountered early in the action.” Response to MTC at 2 (quoting State of Utah By & Through Utah State Dep’t of Health v. Kennecott Corp.,
The Defendants replied on November 12, 2015. See Defendants’ Reply to Plaintiffs Response to Defendants’ Motion for the Court to Certify the Court’s Order [Doc. 117] and Pending Memorandum Opinion for Interlocutory Appeal, filed November 12, 2015 (Doc. 134)(“Reply to MTC”). The Defendants state that the Court’s rulings are inconsistent with Motley v. Marathon Oil Co.,
The preconditions for § 1292(b) review — “a controlling question of law,” the prompt resolution of which “may materially advance the ultimate termination of the litigation” — are most likely to be satisfied when a privilege ruling involves a new legal question or is of special consequence, and district courts should not hesitate to certify an interlocutory appeal in such cases.
Reply to MTC at 3 (quoting Mohawk Indus., Inc. v. Carpenter,
6. The Final Hearing.
The Court held a final hearing on the MPO, MCD, and MTC on November 16, 2015. See Transcript of Hearing (taken November 16, 2015)(“Nov. 16 Tr.”). The Court began discussion of the MPO/MCD Order by asking the Defendants to state its most significant error. See Nov. 16 Tr. at 29:5-11 (Court). The Defendants replied that their main objection “is the breadth and scope of the privilege and also the breadth and scope of the documents that the Court has ordered produced that pertain to Mr. Smith’s protected health information.” Nov. 16 Tr. at 29:12-16 (Griffin). First, the Defendants contended that the Court had ordered more discovery than Dorato had requested. See Nov. 16 Tr. at 29:19-25 (Griffin). According to the Defendants, Dorato initially requested only medical records related to Smith’s hearing, but the Court required production of all medical records. See Nov. 16 Tr. at 29:25-30:10 (Griffin). The Defendants also objected to the production of records that post-dated the shooting incident. See Nov. 16 Tr. at 30:11-24 (Griffin). Second, the Defendants argued that they should only have to disclose psychological records related to pre-hiring testing, rather than all records created “for the benefit of the city” at any time. Nov. 16 Tr. at 31:3-19 (Griffin). Third, the Defendants asserted that courts “traditionally” conduct in camera review instead of requiring direct disclosures to opposing counsel. ■ Nov. 16 Tr. at 31:19-25 (Griffin). Fourth, the Defendants argued that they should be able to assert privilege on a general, good-faith basis as to facially privileged information, including communications between Smith and his physician, instead of preparing a privilege log. See Nov. 16 Tr. at 31:25-33:9 (Griffin)(drawing analogy to the attorney-client privilege). The Defendants’ counsel explained that
I have been practicing for a very long time, and I have never ever had a Court direct ... me to go out and get a city employee’s — all of their medical records from every single procedure and to do a privilege log because the Court seems to think in' order for me to invoke the privilege, I have to at least have the records before me.
Nov. 16 Tr. at 32:10-17 (Griffin). Fifth, the Defendants again pointed to the consent problems with compelling Smith to release his records. See Nov. 16 Tr. at 33:9-24 (Griffin).
The Defendants then made their argument in favor of the MTC. They directed the Court to Mohawk Indus., Inc. v. Carpenter, which they said held that, “if you’re talking about a privilege issue where the law is inconsistent and can be broad based enough to affect more than what’s involved in this case, then that is something that could be ripe for appeal for purposes of interlock.” Nov. 16 Tr. at 36:2-6 (Griffin). The Defendants also emphasized the importance of the issue: “[W]hat the court is deciding here today ... not only affects Officer Smith, but I think it can affect all pending civil rights cases against police officers.” Nov. 16 Tr. at 36:4-7 (Griffin).
The Defendants and the Court then returned to debating the merits of the Court’s prior rulings. The Court asked whether the Defendants’ counsel had litigated a case in which a plaintiff “put at issue the police officer’s health?” Nov. 16 Tr. at 36:9-11 (Court). The Defendants responded that they had not seen such a case, but argued that Smith had not waived his privilege as to all medical records that the City of Albuquerque happened to have in its possession. See Nov. 16 Tr. at 37:16-38:19 (Court, Griffin). The Defendants used the example of a “mobile health van that employees are allowed to go to during work hours,” saying that “it’s just a benefit.” Nov. 16 Tr. at 37:19-23 (Griffin).
The Court then asked to hear from Frederick Mowrer, an attorney for the Albuquerque Police Officer’s Association, who came to the hearing. See Nov. 16 Tr. at 41:17-19 (Court)(“Tell me as an officer, as somebody representing these officers what’s scaring you the most [ ] about what I’m doing over here?”). Mr. Mowrer expressed concerns related to the officers’ privileges, the scope of the records to be disclosed, and the ten-year duration. See Nov. 16 Tr. at 41:20-72:15 (Mowrer). First, he noted that there is a “very thin line” between documents generated for the City of Albuquerque’s benefit and those generated for the officer’s benefit. Nov. 16 Tr. at 45:18-46:4 (Mowrer). He indicated that he could accept, however, a “clear distinction” between visits in which a psychologist or psychiatrist is expected to report the results to the City of Albuquerque, and visits for the officer’s benefit. See Nov. 16 Tr. at 47:1020 (Court, Mowrer). The Court responded to Mr. Mowrer’s suggestion of an in camera review by noting that it could not “start doing the attorneys’ work” before they even produced a privilege log. Nov. 16 Tr. at 49:1-3 (Court).
Second, Mr. Mowrer questioned why the disclosures included all of Smith’s physical issues instead of only conditions relevant to his work. See Nov. 16 Tr, at 50:7-19 (Mowrer). Mr. Mowrer raised the specter of unintended consequences — including employee litigation against the City of Albuquerque to prevent it from disclosing sensitive and confidential medical records, such as STD diagnoses. See Nov. 16 Tr. at 50:20-51:7 (Mowrer). The Court confirmed that Mr. Mowrer would be “comfortable with the plaintiff listing out the ailments that they want the City to review for.” Nov. 16 Tr. at 51:10-15 (Court, Mowrer).
After a brief break, the Court asked for Dorato’s input. See Nov. 16 Tr. at 52:11-20 (Court). Dorato agreed with the Court’s proposed distinction between records prepared for the City of Albuquerque and those related to Smith’s personal care. See Nov. 16 Tr. at 53:9-11 (Carpenter). Dorato further explained that she was focused on physical ailments other than hearing, including possible shoulder injuries, because they could have impeded Smith’s ability to evade Tillison’s car. See Nov. 16 Tr. at 55:11-21 (Carpenter). She rejected the Defendants’ proposal that she select relevant categories of medical records in advance, noting that it was “like me asking for a description of what heaven looks like when I don’t know if heaven really exists.” Nov. 16 Tr. at 57:4-6 (Carpenter). She responded to the Court’s concern that other plaintiffs could abuse such a rule by noting that courts can evaluate each case on its particular facts. See Nov. 16 Tr. at 57:19-58:5 (Carpenter). She cited a recent case in which the plaintiffs requested treatment records related to PTSD based only on speculation and the defendant’s military history, contrasting it with her documents showing a Department of Veterans Affairs disability rating. See Nov. 16 Tr. at 58:6-59:2 (Carpenter).
The Court then suggested that the Defendants could obtain all of the records, but not necessarily produce all of them to Dorato. See Nov. 16 Tr. at 58:6-59:2 (Carpenter). Dorato appeared willing to compromise, at times allowing that permitting plaintiffs total access to police officers’ medical files would be troubling, see Nov. 16 Tr. at 59:4-8 (Carpenter, Court); that the Defendants could prepare a sort of privilege log for relevance to avoid turning over irrelevant medical records, see id. at 61:1-9 (Carpenter); and that the Defendants could “call up and say ... here’s a batch of records that deal with [an ingrown] toenail” and not produce those, id. at 63:2125 (Carpenter). Dorato repeated, however, that she was interested in Smith’s physical ailments beyond just his hearing. See Nov. 16 Tr. at 64:7-16 (Carpenter, Court). She specifically mentioned an on-base explosion in 2008, which led to Smith taking “medical military leave for a very long time.” Nov. 16 Tr. at 70:2-10 (Carpenter).
Dorato also emphasized the importance of Smith’s role as a “perception witness” in her arguments for a broad temporal scope of production. Nov. 16 Tr. at 65:5-10 (Carpenter). She explained that PTSD and hearing problems could affect the weight of Smith’s testimony, and that he may have sought treatment for ailments present at the time of the incident well after the incident occurred. See Nov. 16 Tr. at 66:1-67:2 (Carpenter).
Dorato responded to the Defendants’ arguments on the MTC. First, Dorato said that the issue was not controlling, because she had enough information to proceed with the case regardless of the Court’s ruling. See Nov. 16 Tr. at 67:3-18 (Carpenter). Second, Dorato contended that the issue was not ripe for review, because the parties were not even sure whether the requested documents were relevant. See Nov. 16 Tr. at 67:18-25 (Carpenter). Third, Dorato argued that the issue would not “materially advance the ultimate termination of the litigation,” because it was “not dispositive in any way.” Nov. 16 Tr. at 68:6-9 (Carpenter).
The parties closed by debating specific modifications to the Court’s MPO/MCD Order. Dorato asserted that the Court need not modify the MPO/MCD Order, as paragraphs two and four already drew the
The Court denied the MTC, because there was no controlling issue of law that would advance the case. See Nov. 16 Tr. at 76:1-23 (Court). The Court noted that it would roll several opinions into one and amend its existing MPO/MCD Order to reflect the parties’ agreements. See .Nov. 16 Tr. at 76:25-79:19 (Carpenter, Court, Griffin).
LAW REGARDING MOTIONS TO STRIKE UNDER RULE 12(f)
Rule 12(f) of the Federal Rules of Civil Procedures provides:
(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.
Fed.R.Civ.P. 12(f). Professors Charles Wright and Arthur Miller have recognized, however, that such motions are not favored and, generally, 'should be denied:
The district court possesses considerable discretion in disposing of a Rule. 12(f) motion to strike redundant, impertinent, immaterial, or scandalous matter. However, because federal judges have made it clear, in numerous opinions they have rendered in many substantive contexts, that Rule 12(f) motions to strike on any of these grounds are not favored, often being considered purely cosmetic or “time wasters,” there appears to be general judicial agreement, as reflected in the extensive case law on the subject, that they should be denied unless the challenged allegations have no possible relation or logical connection to the subject matter of the controversy and may cause some form of significant prejudice to one or more of the parties to the action. Any doubt about whether the challenged material is redundant, immaterial, impertinent, or scandalous should be resolved in favor of the non-moving party.
5C Charles AlaN WRIght, et al„ Arthur R. Miller, et al„ Federal Practice & Prooe-dure § 1382 (3d. ed.2015) (footnotes omitted). Accord Burget v. Capital W. Sec., Inc., No. CIV 09-1015-M,
“Allegations will not be stricken as immaterial under this rule unless they have no possible bearing on the controversy.” Estate of Gonzales v. AAA Life Ins. Co., No. CIV 11-0486 JB/WDS,
“Only material included in a ‘pleading’ may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions, briefs, ... memoranda,- objections, or affidavits may not be attacked by the motion to strike.” Dubrovin v. Ball Corp. Consol. Welfare Ben. Plan for Emps., No. CIV 08-0563 WYD/KMT,
“Striking a pleading or part of a pleading is a drastic remedy and because a motion to strike may often be made as a
For example, in Skyline Potato, Co., Inc. v. Hi-Land Potato, Co., Inc., No. CIV 10-698,
In Lane v. Page,
RELEVANT LAW REGARDING DISCOVERY
Rule 34 of the Federal Rules of Civil Procedure governs discovery re
A party may serve on any other party a request within the scope of Rule 26(b):
(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:
(A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations— stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or
(B) any designated tangible things; or
(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Fed.R.Civ.P. 34(a). Rule 26(b)(1) explains that the proper scope of discovery is “any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R.Civ.P. 26(b)(1). Information sought is relevant “if the discovery appears reasonably calculated to lead to discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Federal courts have held that the scope of discovery under rule 26 is broad. See Gomez v. Martin Marietta Corp.,
A district court is not, however, “required to permit plaintiff to engage in a ‘fishing expedition’ in the hope of supporting his claim.” McGee v. Hayes,
Courts have recognized that, while it is true that relevancy in discovery is broader
Rule 26(b)(1) was amended in 2000. Before the 2000 amendments, rule 26(b)(1) defined the scope of discovery as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending actions, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(l)(1996). The 2000 amendments made the following changes, shown here in redline form with the deleted language stricken and the added material underlined:
Parties may obtain discovery regarding any matter, not privileged, that which is relevant to the subject matter-involved in-the-pending- actions, whether-it-relates-to the claim or defense of the-par-ty seeking — discovery or to the claim — or defense-of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant The information sought need not be admissible at the trial if discovery the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1). Putting aside the changes to the last sentence — which the advisory committee’s notes make clear was a housekeeping amendment to clarify that inadmissible evidence must still be relevant to be discoverable — the 2000 amendments have two effects: (i) they narrow the substantive scope of discovery in the first sentence; and (ii) they inject courts into the process in the entirely new second sentence.
In 1978, the Committee published for comment a proposed amendment, suggested by the Section of Litigation of the American Bar Association, to refine the scope of discovery by deleting the “subject matter” language. This proposal was withdrawn, and the Committee has since then made other changes in the discovery rules to address concerns about overbroad discovery. Concerns about costs and delay of discovery have persisted nonetheless, and other bar groups have repeatedly renewed similar proposals for amendment to this subdivision to delete the “subject matter” language. Nearly one-third of the lawyers surveyed in 1997 by the Federal Judicial Center endorsed narrowing the scope of discovery as a means of reducing litigation expense without interfering with fair case resolutions. [Federal Judicial Center, T. Willging, J. Shapard, D. Stienstra, & D. Miletich, DISCOVERY andDISCLOSURE PRACTICE, PROBLEMS, AND PROPOSALS for Change] 44-45 (1997). The Committee has heard that in some instances, particularly cases involving large quantities oí discovery, parties seek to justify discovery requests that sweep far beyond the claims and defenses of the parties on the ground that they nevertheless have a bearing on the “subject matter” involved in the action.
The amendments proposed for subdivision (b)(1) include one element of these earlier proposals but also differ from these proposals in significant ways. The similarity is that the amendments describe the scope of party-controlled discovery in terms of matter relevant to the claim or defense of any party. The court, however, retains authority to order discovery of any matter relevant to the subject matter involved in the action for good cause. The amendment is designed to involve the court more actively in regulating the breadth of sweeping or contentious discovery. The Committee has been informed repeatedly by lawyers that involvement of the court in managing discovery is an important method of controlling problems of inappropriately broad discovery. Increasing the availability of judicial officers to resolve discovery disputes and increasing court management of discovery were both strongly endorsed by the attorneys surveyed by the Federal Judicial Center. See Discovery and Disclosure Practice, supra, at 44. Under the amended provisions, if there is an objection that discovery goes beyond material relevant to the parties’ claims or defenses, the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action. The good-cause standard warranting broader discovery is meant to be flexible.
The Committee intends that the parties and the court focus on the actual claims and defenses involved in the action. The dividing line between information relevant to the claims and defenses and that relevant only to the subject matter of the action cannot be defined with precision. A variety of types of information not directly pertinent to the incident in suit could be relevant to the claims or defenses raised in a given action. For example, other incidents of the same type, of involving the same product, could be properly discoverable under the revised standard. Information about organizational arrangements or filing systems of a party could be discoverable if likely to yield or lead to the discovery of admissible information. Similarly, information that could be used to impeach a likely witness, although not otherwise relevant to the claims or defenses, might be properly discoverable. In each instance, the determination whether such information is discoverable because it is relevant to the claims or defenses depends on the circumstances of the pending action.
The rule change signals to the court that it has the authority to confine discovery to the claims and defenses asserted in the pleadings, and signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings. In general, it is hoped that reasonable lawyers can cooperate to manage discovery without the need for judicial' intervention. When judicial intervention is invoked, the actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, thenature of the claims and defenses, and the scope of the discovery requested.
The amendments also modify the provision regarding discovery of information not admissible in evidence. As added in 1946, this sentence was designed to make clear that otherwise relevant material could not be withheld because it was hearsay or otherwise inadmissible. The Committee was concerned that the “reasonably calculated to lead to the discovery of admissible evidence” standard set forth in this sentence might swallow any other limitation on the scope of discovery. Accordingly, this sentence has been amended to clarify that information must be relevant to be discoverable, even though inadmissible, and that discovery of such material is permitted if reasonably calculated to lead to the discovery of admissible evidence. As used here, “relevant” means within the scope of discovery as defined in this subdivision, and it would include information relevant to the subject matter involved in the action if the court has ordered discovery to that limit based on a showing of good cause.
Finally, a sentence has been added calling attention to the limitations of subdivision (b)(2)(i), (ii), and (iii). These limitations apply to discovery that is otherwise within the scope of subdivision (b)(1). The Committee has been told repeatedly that courts have not implemented these limitations with the vigor that was contemplated. See 8 Federal Practice & Procedure § 2008.1 at 121. This otherwise redundant cross-reference has been added to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery. Cf. Crawford-El v. Britton,523 U.S. 574 ,118 S.Ct. 1584 , 1597,140 L.Ed.2d 759 (1998) (quoting Rule 26(b)(2)(iii) and stating that “Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly”).
Fed.R.Civ.P. 26 advisory committee’s notes (emphasis added).
One gets the impression from reading the advisory committee’s notes that the amendment was not intended to exclude a delineable swath of material so much as it is intended to send a signal to district judges to become more hands-on in the process of regulating — mostly limiting— discovery on relevance grounds alone. The “two effects” of the 2000 amendments might, thus, be only one effect: directing district judges to roll up their sleeves and manage discovery, and to do so on the basis of relevance. The change in substantive scope from “subject matter,” to “claim or defense,” would, therefore, seem to exist more to “add teeth” to the relevance standard than to effectuate a substantive narrowing. It is not surprising that Congress would want to increase judicial presence: “relevance” is a wide-open concept even in the context of trial, Fed.R.Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”), and it is often said that relevance for discovery is an even broader concept. One might then say that old rule 26(b)(l)’s discovery provisions were toothless. It is likewise unsurprising that the rulemakers are unable to articulate precise language narrowing the substantive scope of discovery: no single general rule can adequately take into account the infinite number of possible permutations of different claims, defenses, parties, attorneys, resources of parties and attorneys, information asymmetries, amounts in controversy, and availabilities of information by other means. The determination requires the individualized judgment of someone on the scene, and that presence is what the rulemakers wanted when they: (i) encouraged district judges to take a firmer grasp on the scope of discovery;
Of course, courts should also seek to give substantive content to amendments. Read literally, the rule does not permit parties to discover information relevant only to the claim or defense of another party; they must use discovery only to investigate their own claims and defenses. More problematically, however, the rule may prevent using the Federal Rules’ compulsory discovery process to obtain “background” information not specifically relevant to any one claim or defense — e.g., a plaintiff naming a pharmaceutical company as a defendant and then using discovery to educate itself generally about medicine, biochemistry, and the drug industry by using the defendant’s expertise.
In In re Cooper Tire & Rubber Co.,
when a party objects that discovery goes beyond that relevant to the claims or defenses, “the court would become involved to determine whether the discovery is relevant to the claims or defenses and, if not, whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action.” This good-cause standard is intended to be flexible. When the district court does intervene in discovery, it has discretion in determining what the scope of discovery should be. “[T]he actual scope of discovery should be determined according to the reasonable needs of the action. The court may permit broader discovery in a particular case depending on the circumstances of the case, the nature of the claims and defenses, and the scope of the discovery requested.”
LAW REGARDING PROTECTIVE ORDERS
“Federal district courts have broad discretion over discovery.” Morales v. E.D. Etnyre & Co.,
“It is the party seeking the protective order who has the burden to show good cause for a protective order.” Velasquez v. Frontier Med. Inc.,
Although rule 26(c) is silent regarding the time within which-the movant must file for a protective order, “the United States Court of Appeals for the Tenth Circuit has held that a motion under rule 26(c) for protection ... is timely filed if made before the date set for production.” Montoya v. Sheldon, No. CIV 10-0360 JB/WDS,
LAW REGARDING MOTIONS TO COMPEL
Rule 37 provides enforcement mechanisms for rule 34. 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. See 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)(3). Accord Lewis v. Goldsberry, No. CIV 11-0283 JB/ACT,
On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
Fed.R.Civ.P. 37(a). Under rule 37(a)(4), “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4). If a party refuses to turn over documents through proper discovery, a defendant should move to compel production pursuant to rule 37. See Lane v. Page,
LAW REGARDING PRIVILEGE CHOICE OF LAW
In a diversity case, state law governs the availability of the various privileges; See Frontier Refining, Inc. v. Gorman-Rupp Co., Inc.,
Rule 501 states:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision,' the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
Fed.R.Evid. 501.
Some cases involve both federal and state law claims. Rule 501’s text suggests that, where there are both federal and state claims, federal privilege law should apply to federal claims and state privilege
Where a privilege is asserted for evidence relevant both to federal and pendent state law claims, most circuit courts have either held that federal privilege law governs or approved of such an approach without explicitly adopting it. See In re Sealed Case (Medical Records),
The Tenth Circuit has differed from the other Courts of Appeals to the extent that it has held that, where there are federal and state law claims, “[a]s to state causes of action, a federal court should look to state law in deciding privilege questions.” Motley v. Marathon Oil Co.,
First, at the discovery phase, any attempt to bifurcate privileges along the border between federal and state law claims is hollow if the allegedly privileged evidence impacts both sets of claims. If, for example, state law protects the evidence as privileged, but federal law does not protect the same evidence, a court would be in the conundrum of preventing the discovery of evidence as to the state law claims because of the state law privilege, while simultaneously ordering the disclosure of the same evidence as non-privileged as to the federal law claims. Thus, as a practical matter, the federal privilege law is going to determine discovery in federal court to avoid this problem.
Second, it would be difficult and impracticable — although not impossible — to apply two different bodies of privilege law in front of one jury. See Hancock v. Hobbs,
In many respects, privileges protect the disclosure of information, not the use of information already disclosed, for whatever reason — voluntary waiver, inadvertent disclosure, waiver by a third party, compelled disclosure, Freedom of Information Act claims, or other methods. It does not make much sense to talk about “privileged” evidence once it is disclosed, for whatever reason. Once the evidence is floating around out there, there is nothing of the privilege to protect; the confidentiality is lost. Once that loss occurs, the usual need to get to the truth and the normal federal evidentiary rules of relevancy and materiality, take over. Thus, once there is a federal claim, the federal court has an overriding need to allow the discovery of all evidence that is relevant and not privileged under federal law.
And once the federal court orders the production of that evidence for the federal claim, the evidence is really no longer “privileged,” even under state law. The confidentiality has been lost or waived; it is no longer special evidence at all. The parties can use it if it is relevant and material, without regard to the fact that it was once privileged under state law.
In light of such considerations, the Court concludes that the best course of action is to have federal privilege law control when there are federal claims and the evidence allegedly subject to a privilege is relevant to both the federal and state claims. In federal question cases, the Court has supplemental jurisdiction over the state law claims. “[W]here the primary source of the court’s jurisdiction is the federal claim, to which the state claim is merely pendent (supplemental), it seems appropriate that the federal evidentiary interest — whether in privilege or production — should be primary as well.” In re Sealed Case (Medical Records),
The Court’s opinion in Vondrak v. City of Las Cruces,
Although the Tenth Circuit has not addressed this issue since the Court decided Vondrak v. City of Las Cruces, the Court does not believe that it would hold to the contrary. The Tenth Circuit has stated the general rule that, where a case involves federal and state law claims, state privilege applies to the state law claims. It has not, however, held that state privilege law should preclude the use of evidence when federal law requires the production of the evidence and allows for its use. The Tenth Circuit in Motley v. Marathon Oil Co. did not discuss whether the evidence at issue would have been relevant to the federal claim. Nor did the Tenth Circuit suggest that any party contended that the evidence was relevant to the federal claim. While the Court must make its best effort to follow Tenth Circuit precedent, there is no Tenth Circuit law governing this question. The weight of the authority and practical considerations lead the Court to believe it has adopted the proper approach, both in Vondrak v. City of Las Cruces and again in this matter.
RELEVANT LAW REGARDING EXCESSIVE FORCE
The Supreme Court has long held that all claims of excessive force in the context of an arrest or detention should be analyzed under the Fourth Amendment’s reasonableness standard. See Graham v. Connor,
The Fourth Amendment’s reasonableness standard is an objective standard. Courts must determine “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor,
RELEVANT LAW REGARDING THE PHYSICIAN-PATIENT PRIVILEGE
There was no physician-patient privilege at common law. The Supreme Court of New Mexico has created a physician-patient privilege by rule. See N.M. R. Evid. 11-504(B). Federal courts have not recognized this privilege.
1. The New Mexico Physician-Patient Privilege.
New Mexico has created a statutory physician-patient privilege. Rule 11-504 of the New Mexico Rules of Evidence states:
A patient has a privilege to refuse to disclose, or to prevent any other person from disclosing, a confidential communication made for the purpose of diagnosis or treatment of the patient’s physical, mental, or emotional condition, including drug addiction, between the patient and the patient’s physician, psychotherapist, or state or nationally licensed mental-health therapist.
N.M. R. Evid. 11-504(B). The privilege includes two exceptions. First, “[u]nless the court orders otherwise, any communications made by an individual during an examination of that individual’s physical, mental, or emotional condition that has been ordered by the court are not privileged.” N.M. R. Evid. 11-504(D)(2). Second, “[i]f a patient relies on a physical, mental, or emotional condition as part of a claim or defense, no privilege shall apply concerning confidential communications made relevant to that condition.” N.M. R. Evid. 11 — 504(D)(3). The patient must consult with the physician for treatment or diagnosis “with the intent to be treated.” Reaves v. Bergsrud,
2. There is No Federal Physician-Patient Privilege.
Rule 501 states that “principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience” govern the existence of such a privilege. Fed. R.Evid. 501. “The physician-patient evi-dentiary privilege is unknown to the common law. In States where it exists by legislative enactment, it is subject to many exceptions and to waiver for many reasons.” Whalen v. Roe,
LAW REGARDING THE PSYCHOTHERAPIST-PATIENT PRIVILEGE
The Supreme Court established the federal psychotherapist-patient privilege in Jaffee v. Redmond,
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.”
Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, 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.
The Supreme Court did not delineate the privilege’s other boundaries, explaining that, “[bjecause this is the first case in which we have recognized a psychotherapist privilege, it is neither necessary nor feasible to delineate its full contours in a way that would govern all conceivable future questions in this area.”
1. When the Privilege Applies.
The Supreme Court provided basic guidelines on the privilege’s application. The communications must be made in the course of diagnosis and treatment. See Jaffee v. Redmond,
The lower courts have further defined when this dangerous patient exception applies. See United States v. Auster,
2. What the Privilege Covers.
The privilege extends to confidential communications made to licensed psychiatrists, psychologists, and social workers in the course of psychotherapy. See Jaffee v. Redmond,
Facts regarding the very occurrence of psychotherapy, such as the dates of treatment, are not privileged. And so, for example, if Plaintiff was seeing a psychotherapist before any actionable emotional injury allegedly occurred, the dates of such pre-existing treatment would be available to Defendants. The substance of the psychotherapist-patient communication is privileged. The fact that such communication took place is not.
Vanderbilt v. Town of Chilmark,
3. When a Party Waives the Privilege.
The Supreme Court explained that, “[l]ike other testimonial privileges, the patient may of course waive the protection,” but did not specify precisely when that waiver would occur. Jaffee v. Redmond,
In Speaker ex rel. Speaker v. County of San Bernardino,
The district court rejected two of the plaintiffs arguments that the psychotherapist-patient privilege did not apply. First,
The United States District Court for the Western District of Pennsylvania confronted a similar issue in Barrett v. Vojtas,
The United States District Court for the District of New Jersey confronted similar facts two years later in Caver v. City of Trenton,
The Court finds that whether Defendant Valdora went to a psychologist voluntarily, or was ordered to go, is not dis-positive of the issue. What is critical is that Defendant Valdora was examined by a psychologist for the purpose of diagnosing whether he was suffering from some mental illness or emotional disorder that would render him unfit to be a police officer. More importantly, unlike ... the cases relied on by Plaintiffs, Defendant Valdora clearly had an expectation of confidentiality. He was told and reassured that the psychological records and reports would be kept strictly confidential, and would not be disclosed to the City of Trenton personnel.
LAW REGARDING CERTIFICATION TO THE TENTH CIRCUIT
Congress has given the Courts of Appeals “jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. The restriction of appellate review to final decisions “prevents the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy.” Eisen v. Carlisle & Jacquelin,
When a district judge, in making in a civil action an order not otherwise ap-pealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have, jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b). The Supreme Court of the United States has understood the procedure that 28 U.S.C. § 1292(b) established to “confer on district courts first line discretion to allow interlocutory appeals.” Swint v. Chambers Cnty. Comm’n,
1. Controlling Questions of Law.
Although the lower courts have provided various definitions of “controlling question of law,” there are a few informal rules. 28 U.S.C. § 1292(b). “Question of law” refers to a “question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine rather than to whether the party opposing summary judgment had raised a genuine issue of material fact.” Ahrenholz v. Bd. of Trustees of Univ. of Ill.,
Discovery issues do not often involve controlling questions of law. See 10B Fed. PROC., L. Ed. § 26:958. “Questions of this sort, involving the discretion of the judge in conducting pretrial discovery proceedings, should not be reviewed by an appellate court at this stage of a litigation except where there has been a manifest abuse of discretion.” Atl. City Elec. Co. v. A.B. Chance Co.,
2. Substantial Ground for Difference of Opinion.
Substantial ground for difference of opinion does not exist merely because courts have disagreed on an issue.
There is a substantial ground for difference of opinion which supports a certificate for an interlocutory appeal if a trial court rules in a manner which appears contrary to the rulings of all courts of appeals which have reached the issue, if the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented.
2 Fed. Proo., L. Ed. § 3:218 (footnotes omitted)(colleeting cases). The fact that a court confronts an issue of first impression does not present substantial ground for difference of opinion. See Krangel v. Gen. Dynamics Corp.,
3. Materially Advance Litigation’s the Ultimate Termination.
Interlocutory review is appropriate “only in extraordinary cases where decision might avoid protracted and expensive litigation.” Robbins Co. v. Lawrence Mfg. Co.,
The determination whether an appeal will materially advance the litigation’s termination “properly turns on pragmatic considerations, assessed by reviewing the ‘procedural and substantive status of the case with respect to the progress or completion of discovery, the disposition of pretrial motions, the extent of the parties’ preparation for trial, and the nature and scope of the requested relief.’ ” 2 Fed. PkoC., L. Ed. § 3:219 (quoting Fed. Deposit Ins. Corp. v. First Nat. Bank of Waukesha, Wis.,
ANALYSIS
The Court will deny Dorato’s MTS in part and grant it in part. The Court will deny the MTS’ request to strike the Defendants’ affirmative defenses. Because federal privilege law controls the production of evidence, and because there is no federal physician-patient privilege, however, the Court will require the Defendants to amend certain portions of their Answer. The Court will grant the MPO in part and deny it in part, because Smith waived his psychotherapist-patient privilege as to records created for his employer’s benefit that he knew would be disclosed to third parties such as the City of Albuquerque and the APD. The Court will grant the MCD, because neither Smith’s privacy rights nor the self-critical analysis privilege protect the APD’s documents. Finally, the Court will deny the MTC, because there is no controlling issue of law, there are no substantial grounds for difference of opinion, and an immediate appeal could prolong this litigation rather than materially advance it.
I. THE COURT WILL DENY THE MTS AS TO THE DEFENDANTS’ AFFIRMATIVE DEFENSES, BUT WILL REQUIRE THE DEFENDANTS TO AMEND THEIR ANSWERS THAT RELY ON THE NON-EXISTENT FEDERAL PHYSICIAN-PATIENT PRIVILEGE.
The MTS raises two primary arguments: (i) that the Defendants raise numerous affirmative defenses, but fail to provide any supporting facts; and (ii) that the Defendants cannot use the physician-patient privilege to avoid responding to paragraphs 12 and 13 of the Complaint, which are background allegations incorporated by reference into the federal claim. See MTS at 6-9. The Court declines to accept the first argument and require more detailed information in the answer, because it will not apply Bell Atlantic v. Twombly and Ashcroft v. Iqbal to affirmative defenses pled in answers. It agrees with the second argument on the grounds that: (i) the requested information is relevant to both state and federal claims; (ii) federal law does not recognize a physician-patient privilege; and (iii) federal privilege law requires the information’s disclosure.
A. THE COURT WILL NOT STRIKE THE DEFENDANTS’ GENERAL AFFIRMATIVE DEFENSES.
Rule 12(f) of the Federal Rules of Civil Procedure allows the Court to strike “from a pleading an insufficient defense.” Fed. R.Civ.P. 12(f). The decision whether to
Dorato argues that the Court should apply the heightened pleading standards from Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal to the Defendants’ Answer. See MTS at 5. See also Hayne v. Green Ford Sales, Inc.,
The Court notes that neither the Supreme Court nor the Tenth Circuit has ruled on this issue. See 10A Wright & Miller, supra, § 1274 (collecting cases); Constr. Indus. Laborers Pension Fund v. Explosive Contractors, Inc., No. 12-2624-EFM,
B. FEDERAL PRIVILEGE LAW CONTROLS DISCOVERY ON BOTH THE FEDERAL CLAIM AND THE STATE CLAIM IF THE EVIDENCE IN DISPUTE IS RELEVANT TO BOTH CLAIMS.
The parties both cite Vondrak v. City of Las Cruces, but extract opposite rules. Dorato argues that the case held that federal privilege law should apply if evidence is relevant to both a federal cause of action and pendent state law claims joined in the same proceeding. See Reply to MTS at 5. The Defendants seem to disagree at times, arguing that Vondrak v. City of Las Cruces held that Court should look to state law in deciding privilege questions on state causes of action even when they are joined with federal claims. See MPO at 5-6.
Dorato’s view of Vondrak v. City of Las Cruces is correct. The Court’s
The Defendants concede that the evidence on Smith’s medical and psychological ailments is relevant to Dorato’s negligent-hiring-and-retention state claims. See Reply to MPO at 10. They argue, however, that this evidence is irrelevant to Dorato’s federal claims. See MPO at 3. The federal claims, they assert, require the Court to examine the reasonableness of Smith’s use of force “from the perspective of a reasonable officer on the scene.” MPO at 3. This objective standard, they contend, leaves no room for evidence of an officer’s physical or mental health problems.
“Relevance is construed broadly at the discovery stage. The wide scope of discovery under Federal Rule of Civil Procedure 26 allows parties to obtain “ ‘discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.’ ” Heilman v. Waldron,
The evidence related to Smith’s hearing and other physical ailments is relevant on both of these grounds. In Hutton v. City of Martinez, a police shooting victim’s attorney noticed that a defendant police officer mentioned severe back and neck pain during his post-incident interview. See
Evidence of Smith’s physical health is analogous to the information that the plaintiff sought in Hutton v. City of Martinez. A serious hearing disability could have impacted Smith’s ability to understand Tillison and caused him to escalate the situation. For example, it could have interfered when, as Dorato alleges, Tillison told Smith that he did not do anything wrong. See Amended Complaint ¶22, at 4. It could have prevented Smith from understanding Tillison’s replies to his or
An impairment to Smith’s leg or shoulder could have reduced his mobility. Given that Smith has stated that he shot Tillison because he was afraid that Tillison would hit him with his SUV, and that he had limited room to maneuver and limited time to get out of the way, Smith’s mobility could be relevant to his capabilities and reasons for using deadly force. See Amended Complaint ¶¶ 58-59, at 7. In Heilman v. Waldron, the court held that “Plaintiff is entitled to obtain information about Waldron’s use of such drugs or supplements because this information could be relevant to determining Waldron’s physical strength on July 20 and the objective reasonableness of his actions.”
The Defendants’ arguments that the objective standard for excessive force makes this information irrelevant are unconvincing. The Court acknowledges, as it must, that the issue centers on whether Smith’s actions were “objectively reasonable in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.” Graham v. Connor,
Smith’s possible hearing issues are also directly relevant to his credibility, as he is the only witness to the events in dispute. Hutton v. City of Martinez required the production of evidence of the officer’s mobility impairments, because it could “support or contradict” his testimony. See
The Defendants correctly argue that evidence of Smith’s psychological health cannot help us to understand whether his actions were “objectively reasonable,” because his “underlying intent or motivation” is irrelevant. Graham v. Connor,
Chief Magistrate Judge Molzen’s decision in Tenorio v. Pitzer is distinguishable on two grounds: (i) the plaintiff in that case failed to argue that PTSD was relevant to the officer’s credibility as a witness; and (ii) there are far more substantial indications that Smith actually suffered from PTSD. See Tenorio v. Pitzer, No. 12-CV-01295 LH/KBM, Order on Deposition Discovery Dispute, filed May 31, 2013 (Doc. 58)(“Tenorio Order”). Chief Magistrate Judge Molzen rejected the plaintiffs’ request to ask a police officer defendant whether he “believes that he has ever suffered from Post-Traumatic Stress Disorder” at his deposition. Tenorio Order at 1. The plaintiffs there argued that the police officer’s PTSD might have heightened his sense of fear and contributed to his unreasonable' use of lethal force. See Tenorio v. Pitzer, No. 12-CV-01295 LH/ KBM, Plaintiffs Motion to Compel Deposition Testimony at 2, filed May 10, 2013 (Doc. 46). Like the Defendants in this case, the officer there cited Graham v. Connor, 490,
Dorato, however, the plaintiff in that case did not argue that the PTSD could have affected the officer’s credibility as a witness. That Smith is the only remaining witness makes his PTSD relevant even under Graham v. Connor’s objective standard. Dorato has also presented substantial evidence that Smith suffers from PTSD — Smith has even admitted the diagnosis. See Dorato v. Smith,
The Court’s Memorandum Opinion and Order in Montoya v. City of Albuquerque, No. (D.N.M. Feb. 20, 2004)(Browning, J.), is distinguishable on slightly different grounds. The plaintiffs in that case ar
In short, this case involves a federal cause of action and pendent state law claims. The asserted privilege relates to medical and psychological evidence that is relevant to both the federal and state claims. See Vondrak v. City of Las Cruces,
II. THE COURT WILL DENY MOST OF THE MPO, BECAUSE THE REQUESTED INFORMATION IS RELEVANT, NO PRIVILEGES PROTECT IT, AND THE COURT WILL NOT CONDUCT AN IN CAMERA REVIEW AT THE START OF DISCOVERY.
Information on Smith’s psychological health is relevant to his credibility as a witness, and thus to his federal and state claims. It is also highly relevant to Dora-to’s negligent-hiring-and-retention state claims. The Court must now determine whether the Defendants have other valid reasons for refusing to produce this information. Although the Court concludes that Smith has a psychotherapist-patient privilege, Smith may have waived that privilege by sharing some of his records with the APD and the City of Albuquerque. The Court thus orders Smith to turn over some, but not all, of the information related to his psychological health, although the Court will put in place protocols to protect Smith’s privacy as much as possible.
A. SMITH WAIVED THE PSYCHOTHERAPIST-PATIENT PRIVILEGE AS TO RECORDS THAT HE WAS AWARE WOULD BE SHARED WITH A THIRD PARTY, SUCH AS THOSE CREATED TO BENEFIT HIS EMPLOYER.
Parties may waive the psychotherapist-patient privilege in two ways. First, a party “waives the psychotherapist-patient privilege by placing his or her medical condition at issue.” Fisher v. Sw. Bell Tel. Co.,
Second, a party waives the privilege if he or she “has no reasonable expectation that the communications will remain private.” Estate of Turnbow v. Ogden
Smith, like the officers in these cases, did not have a reasonable expectation of privacy for psychological information that he knew would be disclosed to the City of Albuquerque, the APD, or any other third party. The results of a psychological examination used in hiring decisions, for example, are not privileged, and Smith must disclose them. Psychological records or information generated for Smith’s sole benefit, without any indication that they would be shared with a third party, remain privileged. If, for example, the City of Albuquerque required officers involved in police shootings to visit psychotherapists as an employee benefit, but did not receive the results of the examinations, the results need not be disclosed. Smith, in short, waived his psychotherapist-patient privilege by disclosing the substance of therapy sessions to “unrelated third parties.” United States v. Hudson, No. CRIM.A. 13-20063-01,
The Defendants attempt to restrict the waiver’s scope, arguing that Smith’s “submission to a psychological exam as a condition of employment” does not constitute “a blanket waiver of his psychotherapist-patient privilege to anyone and everyone.” Reply to MPO at 11. They argue that the privilege is not waived when it is “based upon a recommendation of fitness for duty” and when the reports “are kept completely confidential.” Reply to MPO at 11. The Defendants rely upon Caver v. City of Trenton, which does not fully support their argument. That case specifically noted that the defendant “clearly had an expectation of confidentiality. He was told and reassured that the psychological records and reports would be kept strictly confidential, and would not be disclosed to the City of Trenton personnel.”
The few cases on point tend to disapprove the use of selective waiver. United States v. Hudson addresses the question whether a party can selectively waive the psychotherapist-patient privilege. See
The Court concludes that Smith cannot “invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit.” United States v. Hudson,
B. THE COURT WILL NOT CONDUCT AN IN CAMERA REVIEW AT THIS EARLY STAGE OF DISCOVERY.
The Court declines the Defendants’ suggestion that it should conduct an in camera review of the disputed medical/psychological records at this early stage in the discovery process for three primary reasons. First, an in camera review would be premature at this stage in the proceedings. The parties have not yet reviewed the relevant records to determine whether they are subject to any privileges. The Defendants in particular have wanted the written opinion to guide their production. The Court will wait until the parties have reviewed this opinion for guidance, created a privilege log, and developed disputes about the privileged status of specific documents within the larger pool of records; and allow the parties to raise the possibility of in camera review again, when there are few documents, if any, at issue. This delay will help to narrow the issues for decision.
Second, there are “potentially hundreds, perhaps thousands, of documents which would require review.” United Inv’rs Life Ins. Co. v. Nationwide Life Ins. Co.,
Third, although the Court regularly does in camera review, all parties should, as much as possible, avoid shifting the burden because
courts are rarely, if ever, in the best position to evaluate ... the importance of the information sought to the plaintiffs case. Judges can, of course, review the pleadings, but they do not have access to depositions, interrogatories, and other discovery responses; and, if they did, the task of reviewing the responses would usually be a daunting one.
Everitt v. Brezzel,
The Defendants contend that other courts faced with similar questions have conducted in camera reviews. Their citation to Soto v. City of Concord,
C. THE COURT WILL NOT PERMIT A FISHING EXPEDITION.
The Defendants contend that disclosing the target materials would “permit plaintiff to engage in a fishing expedition in the hope of supporting his claim.” Response to MCD at 2 (quoting McGee v. Hayes,
The Court emphasizes that materials disclosed will be subject to a strict protective order. It also notes that it has not made rulings on whether any of this evidence will be admissible at trial. Moreover, the Defendants may renew their motion for in camera review after they have developed specific disputes over privileges and the parties may contact the Court for assistance in resolving discovery disputes as they arise.
III. THE COURT WILL GRANT THE MCD FOR THE REASONS STATED ABOVE, BECAUSE SMITH HAS NO PRIVACY RIGHT PREVENTING DISCLOSURE, AND BECAUSE THE SELF-CRITICAL ANALYSIS PRIVILEGE DOES NOT APPLY.
Smith’s constitutional right to privacy cannot overcome the more compelling state interest in ascertaining the truth, and the Court’s protective order will help to minimize the intrusive nature of disclosure. The Court concludes that the self-critical analysis privilege cannot properly prevent disclosure. It thus grants Dorato’s MCD.
A. THE NEED TO ASCERTAIN THE TRUTH OVERRIDES SMITH’S PRIVACY RIGHT IN HIS POLICE FILES.
The Defendants contend that police officers have a constitutional privacy right to prevent the disclosure of matters in their personnel and investigative files. See Response to MCD at 4. The parties agree that the Tenth Circuit’s “Colorado Test” from Denver Policemen’s Protective Association v. Lichtenstein,
The first factor here mirrors the first factor in Denver Policemen’s Protective Association v. Lichtenstein. The Court agrees with the Defendants that they have privacy interests in personal matters contained within their police files. See Mason v. Stock,
Section 1983 represents a balancing feature in our governmental structure whereby individual citizens are encouraged to police those who are charged with policing us all. Thus, it is of special import that suits brought under this statute be resolved by a determination of the truth rather than by a determination that the truth shall remain hidden.
Wood v. Breier,
B. THE SELF-CRITICAL ANALYSIS PRIVILEGE DOES NOT APPLY.
The Defendants also cite the self-critical analysis privilege as a means to withhold documents. See Response to MCD at 5. This privilege protects internal and confidential performance evaluations, internal investigations records, and other documents containing an employer’s self-critical analyses. See Hoffman v. United Telecommunications, Inc.,
The Court declines to recognize the privilege and, even if it exists, apply it here, for three primary reasons. First, “[E]xceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” United States v. Nixon,
Third, other district courts have refused to apply the self-critical analysis privilege to police departments’ internal investigations and personnel files. See Soto v. City of Concord,
IV. THE COURT WILL DENY THE MOTION TO CERTIFY ITS MPO/ MCD ORDER TO THE TENTH CIRCUIT.
The Court will deny the Defendants’ MTC. District judges may certify an order to the Courts of Appeals when they determine “[(i)] that such order involves a controlling question of law [(ii)] as to which there is substantial ground for difference of opinion[;] and [(iii)] that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The Court concludes that its MPO/MCD Order does not satisfy any of these conditions.
A. THE MPO/MCD ORDER DOES NOT INVOLVE A CONTROLLING ISSUE OF LAW.
The Court agrees with Dorato that the discovery issues discussed in this opinion do not involve controlling issues of law. The Defendants argue that the Court’s MPO/MCD Order decides a controlling issue of law, because it will determine whether Smith must disclose important information and because it is of special consequence to suits against other law enforcement officers. See MTC at 1; Reply to MTC at 4.
The Court declines to adopt the Defendants’ arguments. As an initial matter, the Court notes that a question need not be dispositive in order to be controlling; a district court may certify it if it “could materially affect the outcome of litigation in the district court.” In re Cement Antitrust Litig. (MDL No. 296),
There are exceptions to this general rule, but they tend to involve evidence more important to the case’s ultimate outcome. See Mohawk Indus., Inc. v. Carpenter,
B. THE ISSUE THAT THE DEFENDANTS ASK THE COURT TO CERTIFY DOES NOT ALLOW SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION.
While the Defendants do not like many of the Court’s discovery decisions in this case, the Court is not convinced that what it is doing is as novel, extraordinary, or unusual as the Defendants suggest. The Defendants essentially argue that the Court is deviating from Tenth Circuit precedent by failing to follow Motley v. Marathon Oil Co.’s rule that “[a]s to state causes of action, a federal court should look to state law in deciding privilege questions.” MTC at 1 (quoting Motley v. Marathon Oil Co.,
C. AN IMMEDIATE APPEAL WOULD NOT MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THIS LITIGATION.
Even if the Court concluded that the MPO/MCD Order presents a controlling issue of law, it would still deny the MTC, because an immediate appeal would not materially advance the ultimate termination of this litigation. An immediate appeal advances this termination if it “would (1) eliminate the need for trial, (2) eliminate complex issues so as to simplify the trial, or (3) eliminate issues to make
Resolution of the issue raised in the Court’s MPO/MCD Order will not expedite the resolution of this matter. Discovery will continue; a trial is likely. The appeal will be a parallel proceeding. The case may be over before the Tenth Circuit rules. The relevant issue does not involve “a defense disputing the right to maintain the action,” on which a decision could swiftly end the lawsuit. Fed. Hous. Fin. Agency v. UBS Americas, Inc.,
Y. THE COURT HAS ALSO PUT IN PLACE CERTAIN PROTECTIONS TO MINIMIZE AND/OR MITIGATE THE INTRUSION ON SMITH’S PRIVACY.
The Court has employed certain protections to minimize and/or mitigate the intrusion on Smith’s privacy interests. First, the Court has put in place a rigorous Protective Order. The documents can be used only in this case and must be handled with care. Second, the Court has not, as in a normal tort case, ordered Smith to execute medical releases and to turn the releases over to Dorato. Instead, the Court has ordered the Defendants to gather all of the documents and produce them. This procedure allows the Defendants to look at them first.
Third, Smith can determine whether to assert the psychotherapist-patient privilege for any documents. For withheld documents, the Defendants must prepare a privilege log so that Dorato can review and dispute privilege assertions if necessary. While the Defendants have complained about having to prepare a privilege log, such logs are standard and customary when a privilege is asserted as a reason not to produce documents that are responsive to discovery requests. See S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS,
Fourth, this procedure gives the Defendants an opportunity to see if there are
Finally, while the Court is not agreeing to conduct in camera review at this stage, it is not ruling it out down the road. There may come a time when the Court has to look at documents that the Defendants are withholding under the psychotherapist-patient privilege. The Court hopes that in camera review is not necessary, trusting that it has given the parties a lot of guidance so far in this case and this opinion. Also, the Court encourages the Defendants to assert the psychotherapist-patient privilege in good faith and consistent with the law stated here. For example, the Defendants may not assert the privilege as to records created to vet Smith’s psychological health during the hiring process. See Nov. 16 Tr. at 45:7-17 (Court). If Smith asserts the privilege for certain records, the Court will likely bar him from using those records to defend himself at trial. See Sept. 24 Tr. at 25:16-26:15 (Court).
Not every document that mentions the mind, PTSD, or mental health symptoms may be privileged. The privilege, as stated in Jaffee v. Redmond, applies to “confidential communications between a licensed psychotherapist
At the November 16, 2015, hearing, the police union’s attorney appeared to express three primary concerns: (i) the privilege’s narrow scope; (ii) the breadth of the Court’s discovery orders; and (iii) the duration of the Court’s discovery orders. See Nov. 16 Tr. at 41:20-72:15 (Mowrer). After the Court explained how it would handle the discovery to minimize the intrusion on the police officers’ privacy, the police union’s attorney stated that he was satisfied with the scope of the privilege:
THE COURT: It would seem to me that when they go over to see the psychiatrist or psychologist and that psychiatrist or psychologist is going to report to the City the results, it seems to me that that’s a waiver. It’s a bit like when I’m — it’s a poor analogy, but it is an analogy. When I order a competency exam, they know full well the defendant, that it’s going to be [turned over] to me.
MR. MOWRER: Right.
THE COURT: Now, if on the other hand the city did this, I’ll hear from Ms. Carpenter, but I think if the city did this, they said look, Mr. Smith, you shot somebody. We’re worried about you. We’re worried about your health. Or the union said we’re worried about your health, go see this psychiatrist ten times. We don’t want to know the results.This is just for your benefit. This is just a benefit of the City. This just like us providing health care. Where [] we’re making you go do it, I think I’d probably leave that as privileged. So that’s the line. Are you comfortable with that line?
MR. MOWRER: Yes because the issue is judge we don’t have any clear distinction like that. We’ve never had a clear distinction like that. And if that’s the line and the court is going to protect the line, that takes part of that problem away for sure, because that defeats — if we cross that line, and that stuff starts coming out, that defeats the intent of making people better when they have been involved right wrong or indifferent in critical incidents.
Nov. 16 Tr. at 46:5-47:20 (Court, Mowrer).
The Court addresses the attorney’s second concern with safeguards to ensure that future plaintiffs do not engage in a “shopping spree” of medical record discovery. Nov. 16 Tr. at 50:22-23 (Mowrer). Plaintiffs are entitled to medical records only when they can raise a specific and good-faith basis for their requests. In this matter, Dorato presented evidence of Smith’s medical conditions. The Court will not forbid her to “flesh out allegations for which [she] initially [has] at least a modicum of objective support.” Rivera v. DJO, LLC,
Finally, the Court declines to truncate the relevant time period from ten years to three or five years, because it believes that additional records may be necessary to accurately understand the evolution of certain medical conditions. Hearing and leg injuries, for example, may take more than ten years to fully develop, and a history of past injuries to the same body part may increase the effect of even minor subsequent trauma.
The Court thus believes that it has minimized the intrusion on the officers’ privacy interests as much as possible given the Court’s and Dorato’s needs for discovery on medical issues.
IT IS ORDERED that: (i) the Plaintiffs’ Motion to Strike Defendants’ Affirmative Defenses and Officer Smith’s Defense of Doctor Patient Privilege [Doc. 10], filed May 14, 2014 (Doc. 13), is granted in part and denied in part; (ii) the requests in Defendant Martin Smith’s Motion for Protective Order, and Memorandum in Support, filed August 4, 2015 (Doc. 101) are granted in part and denied in part; (iii) the Plaintiffs’ Opposed Second Motion to Compel Discovery, filed August 25, 2015 (Doc. 106) is granted; and (iv) the requests in the Defendants’ Motion, and Memorandum in Support, for the Court to Certify the Court’s Order [Doc. 117] and Pending Memorandum Opinion for Interlocutory Appeal, filed October 12, 2015 (Doc. 121) are denied. The Defendants must take the following actions:
1. All medical records and examinations that Defendant City of Albuquerque and/or the City of Albuquerque’s contractors have within their possession, custody, or control pertaining to the physical health of Defendant Martin Smith must be turned over to Deputy City Attorney Stephanie Griffin, Smith’s attorney, so that they can then be disclosed to Frances Carpenter, Plaintiff Veronica Dorato’s attorney. This obligation applies to records and examinations from any date.
2. All medical records and examinations that any third party medical provider has within its possession, custody, or control that pertain to Smith’s physical health must be turned over to Ms. Griffin, so that they can then be disclosed to Ms. Carpenter. This obligation applies to records and examinations dating from March 19, 2002 (the date ten years before the incident), to
3. All psychological records and examinations that the City of Albuquerque and/or the City of Albuquerque’s contractors have within their possession, custody, or control pertaining to Smith’s psychological health must be disclosed to Ms. Griffin so that they can then be disclosed to Ms. Carpenter. This obligation applies to records and examinations from any date. This section is subject to the following exceptions:
a. All psychological records and examinations that were generated for Smith’s sole benefit, and which he has kept confidential, are privileged and shall not be disclosed.
b. All psychological records and examinations as to which Smith had a reasonable expectation of privacy, i.e., which were not turned over to the City of Albuquerque, the APD, or some other third party, at the time of the creation of the records and examinations, and which he has kept confidential, are privileged, and shall not be disclosed.
4. All psychological records and examinations that any third party mental health provider has within its possession, custody, or control pertaining to Smith’s psychological health must be disclosed to Ms. Griffin. Upon receipt of any such records, Ms. Griffin must prepare a privilege log that asserts and sufficiently describes records which are subject to the psychotherapist-patient privilege. Ms. Griffin must provide a copy of this privilege log and any non-privileged records to Ms. Carpenter. This obligation applies to records and examinations dating from March 19, 2002 (the date ten years before the incident), to October 2, 2015 (the date of the Court’s original Order).
5. All records requested in the Plaintiffs’ Opposed Second Motion to Compel Discovery, filed August 25, 2015 (Doc. 106), must be disclosed to Ms. Griffin, so that they can then be disclosed to Ms. Carpenter. This obligation applies to records and examinations from any date.
6. Based upon the parties’ agreement, the non-public information identified as COA1-COA2; COA12-COA17; COA20-COA32; COA41-COA46; COÁ52; COA64-COA76; COA78; COA79-COA105; COA185; COA199-COA208; COA215; COA218; COA219-COA223; COA224-COA236; COA240-COA242; COA362-COA366 in the privilege log already provided to Dorato’s counsel shall be disclosed to Ms. Carpenter.
Any medical records, psychological records, and Internal Documents' disclosed pursuant to this order to Ms. Carpenter shall be disclosed in accordance with the terms of the Court’s Order Granting Unopposed Motion for Protective Order for the Contents of the City of Albuquerque’s Internal Affairs and Personnel File of Martin Smith and for Martin Smith’s Medical and Psychological Records, filed October 5, 2016 (Doc. 119).
Notes
. The Court earlier entered two Orders. The first Order, filed March 12, 2015 (Doc. 65)(“MTS Order”), granted in part and denied in part the Plaintiffs’ Motion to Strike Defendants' Affirmative Defenses and Officer Smith's Defense of Doctor Patient Privilege [Doc. 10], filed May 14, 2014 (Doc. 13)("MTS”). The Court stated that it "may, however, at a later date issue a memorandum opinion more fully detailing its rationale for this decision.” MTS Order at 1 n.l. This Memorandum Opinion and Amended Order is the promised opinion. The second Order, filed October 2, 2015 (Doc. U7)("MPO/MCD Order”), required the disclosure of various categories of records and the preparation of a privilege log for other records.
The Court is amending the MPO/MCD Order to add clarity and make it consistent with the parties’ recent agreements. This Memorandum Opinion and Amended Order thus modifies existing disclosure requirements and supersedes the MPO/MCD Order.
. The parties and the Court have used the term "Vaughn index” to refer to the list of documents withheld from production and corresponding privilege assertions that the Defendants must prepare for any psychotherapy records within the City of Albuquerque and its contractors’ custody and control. Plaintiffs’ Response to Defendant Smith’s Motion for Protective Order [Doc. 101] at 3,11, filed August 18, 2015 (Doc. 105)(“Response to MPO”); MPO/MCD Order at 2. Vaughn indi-ces refer to the privilege logs that the United States Court of Appeals for the District of Columbia Circuit discussed in Vaughn v. Rosen,
. The Court includes the following facts only to provide a cohesive narrative, as they are not clear from the pleadings. Smith originally joined the APD in 1994. The APD "rehired” Smith in March of 2000. Smith also completed military duty at some point between 2000 and 2007, and returned to the APD on April 3, 2007.
. The plaintiffs originally included: (i) Veronica Dorato, as Personal Representative of the Wrongful Death Claim of Daniel Tillison; (ii) Bruce Thompson, as guardian ad litem for D.T. and J.T., Tillison's minor children; (iii) Maria Touchet, as guardian ad litem for I.M., Tillison’s minor child; and (iv) Mary Jobe, Tillison’s ex-girlfriend and the mother of his children. See Complaint ¶¶ 2-5, at 2. Veronica Dorato is now the only remaining plaintiff. See Order, filed March 20, 2015 (Doc. 69). The Court refers to the relevant Plaintiffs as "Dorato” throughout this opinion to avoid confusion.
. The Complaint named as defendants: (i) Smith, in his official and individual capacities; (ii) John/Jane Doe Supervisor, in his/ her official and individual capacities; (iii) the Albuquerque Police Department; and (iv) the City of Albuquerque. See Complaint ¶¶ 6-9, at 2-3. The Albuquerque Police Department is no longer a defendant. See Stipulated Notice of Voluntary Dismissal of Defendant Albuquerque Police Department Without Prejudice, filed December 10, 2014 (Doc. 63); Order, filed March 20, 2015 (Doc. 70). The Court will refer to all possible defendants as the "Defendants” to avoid confusion.
. The Court's citations to all hearing transcripts refer to the court reporter's original, unedited versions. Any final versions may contain slightly different page and/or line numbers.
. The Defendants also contend that “any law or legal standard that would compel an employer to go and get somebody’s American medical or psychological records, especially dealing with the military.... That sounds like it's a discriminatory practice to me.” Sept. 14 Tr. at 25:10-24 (Griffin). The Defendants continued to argue that this sort of requirement could violate federal laws that prohibit discrimination against returning veterans. See Sept. 14 Tr. at 26:1-6 (Griffin). Dorato countered that police departments could evaluate Smith’s psychological health and place him in a desk duty position without violating antidiscrimination laws. See Sept. 14 Tr. at 28:9-29:16 (Carpenter). Because the Court does not decide any of the relevant Motions based on this issue, it will not discuss it in depth. See Sept. 14 Tr. at 30:21-23 (Court)(“That seems to me to be an issue not necessarily raised by this motion. I note that it may eventually get to that point.”).
. The Court recognizes that several amendments to the Federal Rules of Civil Procedure became effective on January 1, 2015. See Proposed Amendments to the Federal Rules of Civil Procedure, United States Courts, 2015, http://goo.gl/4yvqaN. The Court applies the rules dating from before December 1, 2015, because the parties briefed and argued the case using the older rules.
. Scherer v. U.S. Department of Education is an unpublished opinion, but the Court can
The Court finds that Scherer v. U.S. Department of Education,
. As the Court explained in a recent opinion,
If the Court struck from the record everything it did not consider on a motion, it would spend a lot of time polishing the record. Also, with the Court being paperless and everything appearing on CM/ECF, it is unclear what the procedural difference in the modern computer world is between striking some information and ignoring it.
Great Am. Ins. Co. v. Crabtree, No. CIV 11-1129 JB/KBM,
. The one exception might be that if the state law privilege was worded to require that evidence “cannot be used” rather than as evidence “shall not be compelled or disclosed.” The Illinois marital privilege, for example, does not exactly ban the introduction of evidence, but it does state that "Neither [husband nor wife], however, may testify as to any communication or admission made by either of them to the other or as to any conversation between them during marriage_” 725 Ill. Comp. Stat. Ann. 5/115-16.
. Some courts and commentators have questioned the basis for the distinction between
. The privilege was originally grounded in the fear of stigma surrounding mental health treatment. See John G. Fleming & Bruce Maimov, The Patient or His Victim: The Therapist's Dilemma, 62 Calif. L. Rev. 1025, 1050, 1974 (describing the experience of Thomas Eagleton, a Democratic candidate for Vice-President of the United States who was forced off the ticket after the public leárned that he had once seen a psychiatrist). Some commentators have suggested that the stigma resulting from mental health treatment is not A great as courts originally assumed. See § 5522 Policy of the Privilege, 25 Fed. Prac. & Proc. Evid. § 5522 (1st ed.).
. The psychotherapist-patient privilege is an exception to general rules disfavoring eviden-tiary privileges. See United States v. Nixon,
. The definition of "psychotherapist” also includes licensed psychiatrists and licensed social workers. Jaffee v. Redmond,