United States District Court, E.D. Wisconsin
J.M. and ESTATE OF DONTRE HAMILTON, Plaintiffs,
CITY OF MILWAUKEE and CHRISTOPHER E. MANNEY, Defendants.
Stadtmueller U.S. District Judge
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
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.
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).
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).
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. 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.
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
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).
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.
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 ...