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J.M. v. City Of Milwaukee

United States District Court, E.D. Wisconsin

December 15, 2016



          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On November 9, 2016, the plaintiffs filed a motion to compel compliance with a subpoena they issued to the City of Milwaukee Employees' Retirement System (“ERS”). (Docket #34). They have sought the complete disability claim file for the defendant Christopher E. Manney (“Manney”). Both Manney and the ERS[1] have opposed the motion. (Docket #38 and #39). Manney simultaneously moved to quash the subpoena. (Docket #38). For the reasons stated below, the motion to compel will be granted and the motion to quash will be denied.

         2. RELEVANT FACTS

         In this action, the plaintiff alleges that Dontre Hamilton was killed by Manney on April 30, 2014, and that in doing so, both Manney and the City of Milwaukee violated various provisions of the Constitution. See generally (Docket #1). Based on the trauma of that incident, Manney later applied for disability benefits with the ERS. (Docket #36-1). The ERS manages, inter alia, employee claims for disability benefits. (Docket #36-3).

         The plaintiffs sought all documents related to that disability claim from Manney himself, but he claimed that they were irrelevant, and also that he did not have any such documents; they were all in the ERS's possession. (Docket #36-5 at 6). The plaintiffs then went to the ERS for the documents, serving a subpoena on it on September 22, 2016. (Docket #36-6). The ERS served objections to the subpoena on October 6, 2016, stating generally that many of the desired documents would not be produced because 1) they were subject to confidentiality rules and the psychotherapist-patient privilege, and 2) Wisconsin statute Section 146.82 prohibited disclosure of the records without Manney's consent. (Docket #36-7 at 2).


         Preliminarily, the Court notes that only Manney's opposition is applicable to the instant determination. Section 146.82 prohibits ERS from disclosing Manney's disability claim file unless, inter alia, there exists a court order compelling it to disclose the file. Wis.Stat. § 146.82(2)(a)(4). Thus, if the Court grants the motion to compel, ERS will be supplied with the necessary order. If the Court denies the motion, the issue becomes moot. Further, ERS itself does not seek to quash the subpoena on any of the grounds provided in Federal Rule of Civil Procedure (“FRCP”) 45(d)(3)(A), so they lack any continued interest in this conflict.[2] Manney, however, has requested that the subpoena be quashed. (Docket #35 at 1). The Court is left, then, with the issues of privilege and relevance raised by Manney and the plaintiffs. It will address the parties arguments thereon separately below.

         3.1Psychotherapist-Patient Privilege

         In Jaffee, the United States Supreme Court first recognized the psychotherapist-patient privilege. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). It equated the privilege to other common-law testimonial privileges, such as attorney-client and spousal privileges. Id. at 9-10. The plaintiffs claim that Manney waived his claim to his psychotherapist-patient privilege by sharing his medical records with the ERS in order to obtain disability benefits. Id. at 15 n.14 (“Like other testimonial privileges, the patient may of course waive the protection.”).

         The parties characterize the dispute as one over “selective waiver.” The plaintiffs contend that there can be no selective waiver of the psychotherapist-patient privilege; by disclosing his health care information to the ERS, Manney waived his psychotherapist-patient privilege entirely. They cite Burden-Meeks, decided in February 2003, in support. There, the Seventh Circuit held that with respect to the attorney-client privilege, “[k]nowing disclosure to a third party almost invariably surrenders the privilege with respect to the world at large; selective disclosure is not an option.” Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003).

         Manney believes the opposite-that the Seventh Circuit recognizes selective waiver of the psychotherapist-patient privilege. In support of his view, Manney cites Dellwood Farms, decided in October 1997. In Dellwood Farms, the court was faced with the federal government's invocation of “the ‘law enforcement investigatory privilege, ' a judge-fashioned evidentiary privilege.” Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1124 (7th Cir. 1997). The government had played certain tape recordings it had created in a criminal investigation to lawyers for the company targeted by the investigation (to induce a guilty plea). Id. Private plaintiffs later filed civil suits against that company based on the same conduct which was the subject of the prosecution. Id. Those plaintiffs subpoenaed the tapes from the government, asserting that the government had waived its privilege by playing the tapes to the company's lawyers. Id.

         Dellwood Farms stated that the law enforcement investigatory privilege was not absolute. Id. at 1125. The privilege was subject to balancing “the need of the litigant who is seeking privileged investigative materials [] against the harm to the government if the privilege is lifted[.]” Id. The ...

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