Jacqueline PEARSON, Individually and as Parent & Natural Guardian of Lindsay Pearson v. Bruce MILLER; Luzerne County Children & Youth Services, Inc.; Kidspeace National Centers for Kids in Crisis, Inc.
No. 99-7047
United States Court of Appeals, Third Circuit
Argued Sept. 22, 1999. Filed April 26, 2000
211 F.3d 57
Before: BECKER, Chief Judge, and GARTH, Circuit Judge, and POLLAK, District Judge.
We make one final point on this appeal. The parties should not infer from our opinion that we in any way are motivated by the belief that the requirement for disclosure of the details of the settlements was appropriate. Quite to the contrary, we find the disclosure order troubling because so many factors may lead to a settlement in any particular case. Accordingly, it is not immediately evident why revealing the amount of settlements in other cases can be helpful here. Indeed, we can foresee that an attempt to use evidence of these settlements at trial could require significant exploration of the proceedings in other cases, thereby causing the parties to lose the proper focus in this case. Moreover, we can understand how by allowing a party to use evidence of settlements a court could discourage settlements in the future. Nevertheless in light of our absence of jurisdiction we cannot intercede.
For the foregoing reasons we will dismiss the appeal for lack of jurisdiction.
Bruce Miller, pro se.
Barbara O‘Connell (Argued), Sweeney & Sheehan, Philadelphia, PA, for Appellant Luzerne County Children & Youth Services, Inc.
Richard F. Stevens, Timothy T. Stevens (Argued), Stevens & Johnson, Allentown, PA, for Appellant KidsPeace National Center for Kids in Crisis, Inc.
OPINION OF THE COURT
POLLAK, District Judge.
This is an interlocutory appeal1 from a discovery order of the United States District Court for the Middle District of Pennsylvania in a suit presenting claims arising under
The information at the center of the present discovery dispute is information in the possession of LCCYS and KidsPeace concerning defendant Bruce Miller, who was a foster child under the supervision of LCCYS and KidsPeace in December of 1993, when he sexually assaulted Ms. Pear
Primarily on the basis of an “Authorization to Release Information” signed by Mr. Miller, the District Court rejected the argument of LCCYS and KidsPeace that the Pennsylvania statutes barred the sought after discovery. The court held that, subject to certain restrictions necessary to protect other people‘s interests, Mr. Miller‘s release was sufficient to waive the bulk of the protections afforded by the Pennsylvania statutes. The District Court thus fashioned an order that compelled discovery of all material sought except to the extent that such material contained information the release of which would violate the rights of third parties protected by the Pennsylvania statutes, as those statutes were interpreted by the District Court.
Because, however, discovery disputes in federal courts are governed by federal law, especially the Federal Rules of Civil Procedure and the Federal Rules of Evidence, the state statutory confidentiality provisions that have been invoked by appellants—and on the basis of which the District Court fashioned its order—do not directly govern the present dispute. Only to the extent that federal law may recognize the force of those provisions are they relevant here. The ultimate issue is whether the discovery sought is permitted as a matter of federal law.
Acknowledging the applicability of federal law, appellants contend that the state confidentiality provisions ought to be recognized under the federal law of evidentiary privileges. We are thus directed to the question whether the applicability of the federal law governing discovery disputes bars the release of the demanded information either—as appellants have chiefly argued—because federal law recognizes one or more applicable evidentiary privileges, or because federal law otherwise provides for the protection of the information here in dispute.
For the reasons discussed below, we reject appellants’ argument that the disputed material is protected by a federal evidentiary privilege. While we accept that appellants may have very legitimate concerns regarding the confidentiality of the information sought, we believe that those concerns are better addressed in the context of the District Court‘s power to impose reasonable limits on the discovery of sensitive information pursuant to
I.
The facts relevant to the resolution of the issue before this court are largely undisputed. Plaintiff Jacqueline Pearson-appellee in this court-brought this action on her own behalf and as parent of her daughter Lindsay Pearson. Ms. Pearson alleges, and appellants do not contest, that defendant Bruce Miller abducted and sexually assaulted twelve-year-old Lindsay on December 19, 1993. Mr. Miller was, at the time of the assault and for the previous ten months, living in a foster home in Luzerne County, Pennsylvania. He was under the custody and supervision of LCCYS, a county government agency, as he had been for the previous several years. Mr. Miller was placed in the particular foster home in which he lived by KidsPeace, a private organization under contract with LCCYS to provide services to LCCYS‘s clients. Beyond this general characterization, it is
Following the attack, a criminal rape charge was brought against Mr. Miller. He pled nolo contendere to the charge, and was sentenced to five to ten years in prison. As far as we are aware, he is currently serving that sentence.
Ms. Pearson initiated the present action against Mr. Miller and appellant LCCYS in December of 1995 in the Court of Common Pleas for Luzerne County, Pennsylvania. Thereafter, LCCYS removed the case to the United States District Court for the Middle District of Pennsylvania. LCCYS then brought in appellant KidsPeace as a third-party defendant. Ms. Pearson then amended her complaint to assert claims against both agencies.
Ms. Pearson‘s primary cause of action against appellants is a
During the discovery period, Ms. Pearson filed notices of deposition directed to both appellants announcing an intention to depose “all case managers and their supervisors who had responsibility for the management and supervision of Bruce Miller for the five (5) years prior to December 17, 1993.” Soon thereafter, plaintiff served interrogatories on LCCYS and KidsPeace that included requests for information which—so both appellants contend—would require the release of sensitive confidential information contained in their respective files on Bruce Miller. In order to avoid that perceived outcome, KidsPeace and LCCYS filed motions for protective orders seeking protection from each of these requests. Appellee responded by filing a motion to compel discovery of the disputed material.
After appellants had filed their motions for protective orders, but prior to the filing of the motion to compel, Ms. Pearson‘s attorneys obtained an “Authorization to Release Records” signed by Mr. Miller. Mr. Miller had, by that time, reached majority, and was acting as his own attorney. The text of that document is as follows:
I, BRUCE MILLER, hereby authorize Luzerne County Children and Youth Services and/or KidsPeace National Centers for Kids in Crisis, Inc. to release my entire file, including, but not limited to, any and all evaluations, memoranda, correspondence, personal data, recommendations and requests to Chester Dudick, Jr. Esquire and Richard M. Hughes, III, Esquire.
Appellants sought protection from discovery on the basis of the confidentiality provisions contained in three statutes:
The first statute, the Child Protective Services Law (CPSL),
The second statute, the Juvenile Act,
The third statute invoked by appellants is the Mental Health Procedures Act (MHPA),
The District Court rejected the appellants’ contention that these statutes together created a comprehensive shield protecting most, if not all, of the information held by the two organizations concerning Mr. Miller. The court did so on the basis of its view that the release signed by Mr. Miller was sufficient to waive the bulk of the confidentiality protections contemplated by the statutes. The District Court accepted that the statutes—including the confidentiality provisions therein—were, in the first instance, applicable to the dispute at hand, but held that Mr. Miller had
II.
Before we turn to the merits of this discovery dispute, we are faced with the issue of appellate jurisdiction. The District Court had original federal question jurisdiction of this case pursuant to
An appeal of a nonfinal order will lie if (1) the order from which the appellant appeals conclusively determines the disputed question; (2) the order resolves an important issue that is completely separate from the merits of the dispute; and (3) the order is effectively unreviewable on appeal from the judgment.
In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir.1997).
In Ford, this court held that an appeal from a denial of the application of the attorney-client privilege was reviewable under the collateral order doctrine. See Ford, 110 F.3d at 964. For similar reasons, we find that each of the requirements of the test is met in the present case. An order denying the applicability of a claimed privilege conclusively determines the question, and does so in a way that is effectively unreviewable: once released, information has lost a measure of confidentiality that can never fully be regained. See id. at 963. Further, it is clear that resolution of the present issue in this forum—which concerns only the scope of state or federal privileges—would not require the court to delve into the substance of the underlying dispute—which concerns appellants’ knowledge of Mr. Miller‘s violent sexual proclivities—in any apparent way. And it is beyond dispute that the issue in the present action is an important one. Cf. Jaffee v. Redmond, 518 U.S. 1, 8 (1996) (granting certiorari on the question whether federal law recognizes a psychotherapist-patient privilege, in part because of “the importance of the question“). Thus, the order appealed from “resolves an important issue that is completely separate from the merits of the dispute.” Ford, 110 F.3d at 958.
Having found that each of the requirements of the collateral order exception to
III.
The general framework for determining the scope of allowable discovery for cases in federal courts is provided by
Appellants, in this court, have primarily pursued the approach of seeking the protection of an evidentiary privilege. Thus, while acknowledging that the District Court erred in applying state law directly, they argue that, as a matter of federal law, the concerns captured by the Commonwealth‘s confidentiality statutes ought to be reflected in federal recognition of an evidentiary privilege that would allow appellants to properly resist all, or nearly all, of the discovery attempted by appellee. We therefore turn first to appellants’ claim that the material sought is protected by an evidentiary privilege under federal law.
a.
All evidentiary privileges asserted in federal court are governed, in the first instance, by
[T]he 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.
Thus, federal courts are to apply federal law of privilege to all elements of claims except those “as to which State law supplies the rule of decision.” In general, federal privileges apply to federal law claims, and state privileges apply to claims arising under state law. The present case, however, presents the complexity of having both federal and state law claims in the same action.7 The problems associated with the application of two separate privilege rules in the same case are readily apparent, especially where, as here, the evidence in dispute is apparently relevant to both the state and the federal claims.8 This court has resolved this potential conflict in favor of federal privilege law. Noting that “applying two separate disclosure rules with respect to different claims tried to the same jury would be unworkable,” we held that “when there are federal law claims in a case also presenting state law claims, the federal rule favoring admissibility, rather than any state law privilege, is the controlling rule.” Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir.1982). Accordingly, for the resolution of the present discovery dispute, which concerns material relevant to both federal and state claims,
Federal privilege law, as conceived by
The federal approach to the recognition of new privileges is characterized by two principal features. First, ”
The other principal feature of the federal approach is that the considerations against the recognition of new privileges that would impede access to probative evidence are granted very significant weight. “For more than three centuries it has now been recognized as a fundamental maxim that the public ... has a right to every man‘s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional.” Jaffee, 518 U.S. at 9 (quoting 8 J. Wigmore, Evidence § 2192, p. 64 (3d ed.1940)). This court has recently stated that “privileges are disfavored.” In re Grand Jury, 103 F.3d at 1149 (rejecting parent-child privilege); see also Nixon, 418 U.S. at 710 (cautioning that privileges “are not lightly created nor expansively construed“). Thus, with very limited exceptions, federal courts have generally declined to grant requests for new privileges. See, e.g., University of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990) (declining to adopt academic peer-review privilege); In re Sealed Case, 148 F.3d 1073 (D.C.Cir.) (declining to adopt “protective function” privilege requested by the Secret Service), cert. denied, Rubin v. United States, 525 U.S. 990 (1998); Carman v. McDonnell Douglas Corp., 114 F.3d 790, 794 (8th Cir.1997) (rejecting a corporate ombudsman privilege and stating that “[t]he creation of a wholly new evidentiary privilege is a big step“); Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1514 (D.C.Cir.1993) (“Federal courts have never recognized an insured-insurer privilege as such.“); EEOC v. Illinois Dept. of Employment Sec., 995 F.2d 106 (7th Cir.1993) (rejecting
The case for recognizing a particular federal privilege is stronger, however, where the information sought is protected by a state privilege. “[T]he policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one.” Jaffee, 518 U.S. at 12-13. “A strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy.” United States v. King, 73 F.R.D. 103, 105 (E.D.N.Y.1976); see also Memorial Hosp. v. Shadur, 664 F.2d 1058, 1061 (7th Cir.1981); Lora v. Board of Educ., 74 F.R.D. 565 (E.D.N.Y.1977); Johnson v. City of Philadelphia, 1994 WL 612785, at *10 (E.D. Pa. Nov. 7, 1994). Thus, a federal court “may see fit for special reasons to give the law of a particular state highly persuasive or even controlling effect, but in the last analysis its decision turns upon the law of the United States, not that of any state.” Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir.1979) (quoting D‘Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 471 (1942)) (emphasis omitted).
Appellants have urged that the appropriate level of respect due to state law in the present case requires that the Pennsylvania privileges be recognized as a matter of federal law. A necessary predicate of appellants’ favored outcome, of course, is that Pennsylvania in fact recognizes evidentiary privileges associated with the statutes in question. As an initial matter, however, it is not clear that the statutes in question create evidentiary privileges at all. Indeed, neither the CPSL nor the Juvenile Act contains the word “privilege.”11 The relevant provisions contained therein speak primarily of confidentiality, not privilege. On their face, therefore, these statutes do not appear to establish evidentiary privileges constituting a bar to the discovery of relevant information. Statutory provisions providing for duties of confidentiality do not automatically imply the creation of evidentiary privileges binding on courts. “Merely asserting that a state statute de
It does not follow, however, that a statute providing for a duty of confidentiality—but lacking an express provision for an evidentiary privilege, per se—could not also be interpreted as creating such a privilege. Indeed, Pennsylvania courts have described each of the statutes here at issue as creating an evidentiary privilege of one kind or another. See Commonwealth v. Moyer, 407 Pa.Super. 336, 595 A.2d 1177, 1180 (1991) (“[T]he first sentence of [section 7111 of the MHPA] confers a statutory privilege of confidentiality on the patient‘s records.“);12 V.B.T. v. Family Servs., 705 A.2d 1325, 1334 (Pa.Super. 1998) (noting that the CPSL creates a privilege, albeit one that is “not absolute and disclosure of otherwise confidential information is therefore permitted where compelled by sufficiently weighty interests“) (citing Commonwealth v. Ritchie, 509 Pa. 357, 502 A.2d 148 (1985), rev‘d on other grounds, 480 U.S. 39 (1987)); id. at 1331 (“[T]he privilege created by the Juvenile Act is qualified, i.e., creates, by its own terms, exceptions to the confidentiality of juvenile court records.“).
In sum, we must determine whether to recognize a federal privilege that would allow the evidence here sought to be kept from appellee, notwithstanding its relevance. We are, in essence, to determine whether there are federal law privileges that amount to parallels of the state law privileges that appellants have argued would bar the discovery here sought, had the present suit been brought in the courts of the Commonwealth of Pennsylvania. Thus, we are to determine, granting due respect to Pennsylvania‘s protections, whether a privilege of the kind sought by appellants “promotes sufficiently important interests to outweigh the need for probative evidence,” Trammel, 445 U.S. at 51, where the need for probative evidence is viewed as a very weighty consideration indeed—to the extent that only the strongest considerations on the other side of the scale are capable of outweighing it.
b.
With that framework in place, we turn to the particular privileges sought by appellants. As we discuss below, we will decline to recognize any of the privileges under which appellants have sought protection from discovery. Because of the particular circumstances of this case, in which Mr. Miller has waived assertion of his confidentiality interests, in order for appellants to be protected by such a privilege, it would have to be a privilege of a very unusual sort—one whose breadth and scope would appear to make it particularly unsuited for recognition within the framework of
Because Mr. Miller has effectively waived his confidentiality interests, appellants have been forced to invoke privileges directed entirely at interests other than those of Mr. Miller.14
Thus, the question presented is not whether there are evidentiary privileges protecting Mr. Miller‘s interests under
Once our inquiry is confined to the consideration of potential privileges characterized in that way, it is clear that appellants’ requested privileges must be rejected. We consider first appellants’ invocation of the Mental Health Procedures Act. It is settled under Pennsylvania law that the MHPA gives rise to “an absolute confidentiality privilege” covering documents related to the treatment of mental health problems. Hahnemann, 74 F.3d at 465; see also Moyer, 595 A.2d at 1180. That privilege, however, is held by the patient, who is permitted to waive it and to allow the protected information to be released. See Sprague v. Walter, 441 Pa.Super. 1, 656 A.2d 890, 910-911 (1995) (finding the MHPA privilege to have been waived by former patient who had allowed records to become publicly available). It follows that any privilege that would spring from the MHPA in the present case would necessarily have been waived by Mr. Miller‘s release.
Notably, federal law does recognize a privilege that would seem to overlap the privilege under the MHPA: the psychotherapist privilege. See Jaffee, 518 U.S. at 15. Again, like that associated with the MHPA, the federal psychotherapist privilege is owned by—and fully waivable by—the patient. See id. at 15 n. 14. Thus, any such privilege could not provide the basis for the protection here sought, because if such a privilege did protect any of the information at issue, Mr. Miller would be deemed to have effectively waived that protection.
The privileges associated with the Child Protective Services Law and Juvenile Act are not so readily dismissible. For with respect to those statutes, protecting third-party interests is undoubtedly an important ingredient of the confidentiality provisions. The CPSL‘s confidentiality provision, for instance, is directed at the confidentiality interests not only of the child, but also of those who file child abuse reports, of those who work with the child, and, perhaps, of the state agencies themselves.15
There is little question that many of these interests are of very substantial weight. Indeed, it is difficult to overstate the importance of a state‘s activities directed at the welfare of children. And the prevention and detection of child abuse are among the most compelling of these activities. The need to protect the confidence of the children involved in these programs and proceedings is crucial to their maximal effectiveness. Additionally, the importance of protecting those who file child abuse reports is clear. It is essential that people be encouraged to make such reports, and confidentiality is a valuable tool to that end. “Recognizing this, the Commonwealth—like all other States—has
Thus, in addition to the interests of the child, it is evident that a large number of persons have significant interests in maintaining the confidentiality of the kinds of records here sought. If we were to recognize a privilege that protected all of the interests at which the confidentiality provisions of the Pennsylvania statutes are directed, Mr. Miller‘s waiver would not be adequate to waive the privilege in its entirety.
However, the same factor that would allow these privileges to survive Mr. Miller‘s waiver—the number and variety of interests that appellants would have us hold to be a basis for such privileges—makes them poor candidates for the protection of a
There is good reason for favoring relatively uncomplicated confidential relationships in assessing candidates for the application of evidentiary privileges as contemplated by
We might, on the other hand, view such a privilege as held by the state on behalf of all of those who have interests in confidentiality under the statutes. While such a solution would have certain practical advantages over the “privilege” just described, it would remain a poor fit for the framework of
In sum, we find that
c.
Our rejection of appellants’ requested privilege under
Thus,
The District Court order appealed from in this case contains some restrictions of the kind authorized by
The flexibility of
Accordingly, we reject appellants’ request for the federal recognition of one or more evidentiary privileges derived from the Pennsylvania confidentiality provisions
Notes
(a) General rule.—Reports specified in section 6339 (relating to confidentiality of reports) shall only be made available to:
...
(3) A guardian ad litem or court designated advocate for the child.
...
(5) A court of competent jurisdiction, pursuant to court order or subpoena in a criminal matter involving a charge of child abuse....
(5.1) A court of common pleas in connection with any matter involving custody of a child...
(b) Release of information to subject of report.—At any time and upon written request, a subject of a report may receive a copy of all information, except that prohibited from being disclosed by subsection (c), contained in the Statewide central register or in any report filed pursuant to section 6313 (relating to reporting procedure).
(c) Protecting identity of person making report.—Except for reports pursuant to subsection (a)(9) and (10), the release of data that would identify the person who made a report of suspected child abuse or the person who cooperated in a subsequent investigation is prohibited unless the secretary finds that the release will not be detrimental to the safety of that person. Law enforcement officials shall treat all reporting sources as confidential sources.
(a) All documents concerning persons in treatment shall be kept confidential and, without the person‘s written consent, may not be released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to section 110;
(3) a court in the course of legal proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency.
In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent.
- In accordance with section 6307(2) of the Juvenile Act,
42 Pa. Cons.Stat. §§ 6303-6365 (1982 & Supp.1998), neither Mr. Miller nor his counsel or representative may see any court files or records of Juvenile Act proceedings which contain the names of confidential sources of information. - Pursuant to
55 Pa.Code § 3680.35(b)(5) , defendants shall redact the names and other identifying information of individuals other than Mr. Miller, when the disclosure of such information would violate the legitimate privacy expectations of any individual other than Mr. Miller. - It is further ordered that plaintiff shall maintain as confidential all documents received from defendants.
On the other hand, a district court in this circuit has expressly rejected the privilege here sought under the Juvenile Act. See Longenbach v. McGonigle, 750 F.Supp. 178, 180 (E.D.Pa.1990) (“We know of no common law federal privilege against disclosing juvenile records.“).
The confidentiality provisions of the CPSL have several clear functions in light of the statute‘s broad purposes: to encourage reporting of abuse by ensuring that persons with knowledge of abuse are not deterred from reporting it by the prospect of the abuser learning their identity and seeking retribution; to facilitate the investigation of abuse by assuring potential witnesses that the information they provide to investigators will not be made public; to facilitate the rehabilitation and treatment of abused children and their families by encouraging open, frank communications with agency personnel and treatment providers; to encourage the effective operation of the child protective service by enabling it to keep complete and comprehensive files on all aspects of a family‘s circumstances without fear that information placed in such files will be subject to scrutiny by persons not involved in the process of rehabilitating the family; and to prevent the innocent victims of abuse from also becoming victims of public stigma by guarding information about the intimate details of their lives from the prying eyes of outsiders.
V.B.T., 705 A.2d 1325, 1335-36.