Kim Kinder v. Michael White

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:12-cr-00221-1 Copies to all parties and the district court/agency. [999569492].. [13-4198]

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 1 of 37

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4198

KIM KINDER,
Appellant,
v.
MICHAEL L. WHITE,
Defendant – Appellee,
and
UNITED STATES OF AMERICA,
Plaintiff.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Thomas E. Johnston,
District Judge. (2:12-cr-00221-1)

Argued:

October 30, 2013

Decided:

April 22, 2015

Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.
RUSSELL, III, United States District Judge for the District of
Maryland, sitting by designation.

Reversed by unpublished opinion. Chief Judge Traxler wrote the
majority opinion, in which Judge Russell joined.
Judge Wynn
wrote a dissenting opinion.

ARGUED: Jonathan D.
DEFENDER, Charleston,

Byrne, OFFICE OF THE FEDERAL
West Virginia, for Appellant.

PUBLIC
James

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 2 of 37

McCall Cagle, Charleston, West Virginia, for Appellee.
ON
BRIEF: Mary Lou Newberger, Federal Public Defender, Lex A.
Coleman, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL
PUBLIC
DEFENDER,
Charleston,
West
Virginia,
for
Appellant.

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 3 of 37

TRAXLER, Chief Judge:
Kim Kinder was the government’s primary witness at trial
against

Michael

offenses
duplex

arising
apartment

Virginia.
2014).

White,
from

who

an

was

charged

October

building

that

2009

with

fire

White

arson-related

that

owned

destroyed

in

Van,

a

West

See United States v. White, 771 F.3d 225 (4th Cir.

The district court granted White’s pretrial motion for

production

of

Kinder’s

mental

health

records

for

use

during

cross-examination, rejecting the argument that the records were
protected

from

privilege.

disclosure

by

the

psychotherapist-patient

See Jaffee v. Redmond, 518 U.S. 1, 15 (1996).

We

conclude that the district court’s order of disclosure was in
error.

To the extent the district court has retained any of

Kinder’s mental health records, the court is required to return
or destroy them.
I.
Shortly
Kinder

and

insurance
information

before

White

was

Kinder’s

husband

proceeds,

Kinder

charging

her

indicted

to

pled

with

questions

during

the

conspiring

White’s

guilty

conspiracy

violation of 18 U.S.C. § 844(i).
court’s

burn

for

to

duplex

to

a

commit

with

for

the

one-count
arson

in

In response to the district

plea

hearing,

Kinder

told

the

court that she was taking numerous medications, including antidepressants, anti-anxiety drugs, and muscle relaxers.
3

Kinder

Appeal: 13-4198

Doc: 61

also

Filed: 04/22/2015

revealed

to

the

Pg: 4 of 37

court

she

had

received,

within

preceding ten years, extensive psychiatric treatment.

the

Kinder

claimed that she had been diagnosed with bipolar disorder and
schizophrenia.
period,

she

Kinder
was

also

explained

admitted—at

least

that

once

during

that

time

involuntarily—as

an

inpatient to four different hospital mental health units; the
most

recent

of

these

mental

health

admissions

had

occurred

approximately one year before the plea hearing.
Based on the information revealed by Kinder to the judge
during her plea hearing, White filed a pre-trial motion under
Criminal

Rule

17(c)

seeking

“early

production”

of

Kinder’s

medical records maintained by each of the four hospitals where
Kinder received inpatient treatment.

Specifically, White wanted

each hospital to produce any document “relate[d] to Kim Kinder’s
psychiatric
abuse.”

history,

J.A. 18.

diagnosis,

treatment

and

drug

usage

and

In support, White relied on a West Virginia

statute permitting access to confidential mental health records
if

a

court

“outweigh[s]

determines
the

confidentiality.”
opposed
mental

production
health

the

relevance

importance

of

of

such

information

maintaining

W. Va. Code § 27-3-1(b)(3).
of

such

documents,

records

were

protected

arguing
from

.

.

.

The government
that

disclosure

Kinder’s
by

the

therapist-patient privilege recognized by the Supreme Court in
Jaffee.

See

518

U.S.

at

15.
4

Without

objection,

Kinder

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 5 of 37

intervened in the motion and filed an objection through counsel,
adopting the government’s argument with regard to privilege and
noting

further

that

White

did

not

need

the

records

for

impeachment purposes since her mental health history was already
a

matter

of

colloquy.
trial

public

record

in

the

transcripts

of

her

plea

Kinder also appeared at the hearing on White’s pre-

motion

privilege. 1

and

expressly

invoked

the

therapist-patient

The district court, relying on the West Virginia

statute, found “that the requested documents [were] sufficiently
relevant

.

.

determine

if

importance

of

Code

§

.

to

warrant

White’s

preliminary

order

camera

evidentiary

maintaining

27-3-1(b)(3).

in

need

[Kinder’s]

Thus,

directing

the
each

review,”

91,

“outweigh[ed]

confidentiality,”

district
of

J.A.

the

court
four

W.

entered

hospitals

to
the
Va.
a
to

produce Kinder’s mental health records to the district court
alone for an in camera determination of admissibility.
After conducting its in camera review, the district court
determined that to the extent the hospital records revealed any
communications

from

Kinder

psychiatrists,

they

fell

to,
within

1

or
the

any

diagnoses

scope

of

the

from,

her

patient-

The parties agreed below that Kinder did not “waive[] her
privilege by responding to the [district court’s] questions at
the plea hearing.” J.A. 109.

5

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 6 of 37

therapist privilege. 2

The district court then “turn[ed] to the

question

the

of

whether

privilege

may

be

overcome

by

the

assertion of [White’s] constitutional right to the confidential
materials.”

J.A.

111.

Observing

that

the

psychotherapist-

patient privilege recognized in Jaffee is not absolute, see 518
U.S.

at

18

n.19,

the

psychotherapist-patient

district

where

necessary

to

privilege

exception

concluded

contemplates

that
an

exception

a

J.A. 119.

exists,

And, having concluded such

the

district

criminal

“[t]he

vindicate

constitutional rights.”
an

court

court

defendant’s

considered

whether

Kinder’s privacy rights protected by the privilege should give
way

either

confront

to

the

White’s
witnesses

Sixth

Amendment

against

him

or

right
to

to

his

effectively
right

to

a

fundamentally fair trial under the Due Process Clause of the
Fifth Amendment.

Although the district court decided that White

2

The district court also concluded that there were
“significant portions” of Kinder’s records that did not come
within the scope of the therapist-patient privilege. J.A. 109.
For example, the district court determined that the privilege
did not protect any information provided by Kinder to emergency
room “triage” staff during the admitting process regarding her
mental health history or the particular reason for her visit.
J.A. 110.
Nonetheless, the district court did not order the
disclosure of such records, finding that Kinder’s “self-reported
mental health history” during these “triage assessments” was
largely “identical to the history provided publicly” during her
plea hearing and therefore cumulative. J.A. 110. Accordingly,
we need not address whether information passed along for
purposes of a “triage assessment” would fall within the
privilege.

6

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 7 of 37

was not entitled to Kinder’s mental health records in order to
vindicate his rights under the Confrontation Clause, the court
concluded

that

White

Process Clause.

could

obtain

the

records

under

the

Due

The court reasoned that because Kinder was the

“central government witness against [White] and the . . . case
may well hinge on her credibility,” J.A. 123, White’s right to a
fundamentally fair trial entitled him to disclosure of mental
health

records

that

psychotherapist-patient

were

otherwise

privilege.

protected

Accordingly,

by

the

the

district

court ordered the disclosure under seal of specified documents
that

“cast[]

substantial

during

the

raised

questions

testifying

time

before

of

the

about
the

doubt

on

purported
Kinder’s
grand

[Kinder’s]
conspiracy,”

state

jury

and

of

mind

mental
J.A.
when

cooperating

acuity

124,

and

she

was

with

the

government’s investigation of White. 3
II.
Kinder argues that in deciding whether her mental health
records were protected from disclosure by the psychotherapistpatient privilege, the district court engaged in the type of
3

The district court indicated that “[w]ith the exception of
the limited disclosures the Court makes herein, these documents
will not be placed in the record unless a higher court orders
otherwise. The select documents the Court deems subject to
disclosure are provided under seal to provide limited access to
the parties to this case only, not the public at large.”
J.A.
125.

7

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 8 of 37

balancing analysis expressly rejected by the Supreme Court in
Jaffee.

We

review

a

district

court’s

“evidentiary

rulings,

including rulings on privilege, for abuse of discretion,” but we
review “factual findings as to whether a privilege applies for
clear error, and the application of legal principles de novo.”
United States v. Hamilton, 701 F.3d 404, 407 (4th Cir. 2012).
By

definition,

an

abuse

of

commits “[a]n error of law.”
302, 326 (4th Cir. 2009).
use

of

the

balancing

discretion

occurs

if

the

court

United States v. Basham, 561 F.3d

We agree with Kinder that the court’s

approach

was

erroneous

and

that

its

decision to disclose Kinder’s mental health records therefore
amounted to an abuse of discretion.
A.
Under Federal Rule of Evidence 501, matters of privilege in
federal courts are to be resolved based on the common law “as
interpreted by United States courts in the light of reason and
experience”

unless

it

is

contrary

to

the

“United

States

Constitution,” a “federal statute,” or the “rules prescribed by
the Supreme Court.”

In Jaffee, the Supreme Court resolved a

circuit split when it “recognize[d] a psychotherapist privilege
under Rule 501” in the context of a § 1983 excessive force
action.

518 U.S. at 7.

The Court concluded that a social

worker’s notes from her counseling sessions with the defendant
police

officer

were

protected

by
8

the

psychotherapist-patient

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 9 of 37

privilege from disclosure to the plaintiff for use in crossexamination.

The

Supreme

Court

reasoned

that

“[e]ffective

psychotherapy . . . depends upon an atmosphere of confidence and
trust”

and

that

“confidential

“the

mere

communications

possibility
made

during

could hinder productive therapy.
confidential

communications

of

disclosure”

counseling

Id. at 10.

between

a

of

sessions”

“By protecting

psychotherapist

and

her

patient from involuntary disclosure, the . . . privilege thus
serves

important

importantly,
privileges,

the
the

private
Court

interests.”
found

that,

psychotherapist

Id.
like

privilege

at

11.

other
serves

Most

testimonial
the

greater

public interest by facilitating effective mental health care –
“a public good of transcendent importance.”
concluded

that

communications

a

between

“privilege
a

Id. 4

protecting

psychotherapist

and

The Court
confidential
her

patient

‘promotes sufficiently important interests to outweigh the need
for

probative

evidence.’”

Id.

at

9–10

United States, 445 U.S. 40, 51 (1980)).
public

benefit

produced

by

4

the

(quoting

Trammel

v.

In other words, the
recognition

of

the

The Supreme Court explained that “[t]he psychotherapist
privilege serves the public interest by facilitating the
provision of appropriate treatment for individuals suffering the
effects of a mental or emotional problem. The mental health of
our citizenry, no less than its physical health, is a public
good of transcendent importance.”
Jaffee v. Redmond, 518 U.S.
1, 11 (1996).

9

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

psychotherapist-patient

Pg: 10 of 37

privilege

is

sufficiently

weighty

to

trump the cost to the administration of justice of precluding
the use of relevant evidence.
Of

course,

like

other

testimonial

privileges,

the

psychotherapist-patient privilege is not absolute.

The Court

recognized

left

that

the

privilege

has

limits

delineation of boundaries for future cases:

but

the

“Although it would

be premature to speculate about most future developments in the
federal psychotherapist privilege, we do not doubt that there
are situations in which the privilege must give way.”
n.19.

The

Court

serious

threat

hinted

of

harm

at
to

one
the

potential
patient

or

Id. at 18

exception—where
to

others

can

averted only by means of a disclosure by the therapist.”

“a
be
Id.

Circuit courts, however, have disagreed over when a “dangerous
patient” exception to the privilege would apply, if at all.

See

United States v. Glass, 133 F.3d 1356, 1360 (10th Cir. 1998)
(applying the Jaffee rule in a criminal case, and creating a
narrow exception to the rule where “disclosure [is] the only
means of averting [imminent] harm”); cf. United States v. Chase,
340

F.3d

978,

992

(9th

Cir.

2003)

(en

banc)

(refusing

to

recognize a dangerous-patient exception to the Jaffee rule).
B.
In ordering the partial disclosure of Kinder’s psychiatric
records, the district court concluded that an exception to the
10

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

psychotherapist-patient
privileged
defendant’s

privilege

information

is]

constitutional

Pg: 11 of 37

must

necessary

be

rights.”

to

made

“where

vindicate

J.A.

119.

a
And

[the

criminal
in

this

particular case, the district court decided that because Kinder
was the star witness for the prosecution, it was necessary for
White to have this otherwise privileged evidence for impeachment
purposes in order to fully exercise his Fifth Amendment right to
a fundamentally fair trial.
In our view, this conclusion is demonstrably at odds with
both Jaffee and basic principles underlying the recognition of
testimonial privileges.

All common law testimonial privileges

are inherently “in derogation of the search for truth,” United
States v. Nixon, 418 U.S. 683, 710 (1974); that is, privileges
constitute exceptions to the baseline rule “that the public . .
. has a right to every man’s evidence.”

United States v. Bryan,

339 U.S. 323, 331 (1950) (internal quotation marks omitted).
“New or expanded privileges may be recognized only to the very
limited extent that permitting a refusal to testify or excluding
relevant evidence has a public good transcending the normally
predominant

principle

ascertaining truth.”

of

utilizing

all

rational

means

for

United States v. Sterling, 724 F.3d 482,

502 (4th Cir. 2013) (internal quotation marks omitted) (emphasis
added).

Thus, a privilege must “serve[] public ends,” Upjohn

Co. v. United States, 449 U.S. 383, 389 (1981), that are more
11

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

important

than

the

relevant,

effect

probative

of

Pg: 12 of 37

denying

evidence.

the

public

Accordingly,

the

when

use

the

of

Court

recognizes or expands a privilege under Rule 501, it necessarily
has already determined that the privilege in question “promotes
sufficiently

important

probative evidence.”

interests

to

outweigh

the

need

for

University of Pennsylvania v. EEOC, 493

U.S. 182, 189 (1990) (internal quotation marks omitted).
Jaffee applied this reasoning, holding that a “privilege
protecting confidential communications between a psychotherapist
and

her

patient

outweigh

the

(internal
before

promotes

need

for

quotation

under

compared

the

interests
entitled

the

existence

501,

interests
by

“every

the

general

man’s

of

by

Court

rule

U.S.

at

added).

the

the

interests

518

(emphasis

Supreme

promoted
the

important

evidence.”

omitted)

Rule

promoted
to

probative

marks

recognizing

privilege

sufficiently

to

9–10
Thus,

psychotherapist
in

Jaffee

privilege

first

against

the

public

is

But

evidence.”

that

now

that

the

psychotherapist privilege has been recognized, it would be both
counterproductive
opponent’s

and

evidentiary

privilege is invoked.

unnecessary
need

for

for

a

court

disclosure

to
any

weigh

the

time

the

Indeed, Jaffee explicitly rejects such an

ad hoc balancing approach because it would frustrate the aim of
the privilege by making its application uncertain:

“Making the

promise of confidentiality contingent upon a trial judge’s later
12

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 13 of 37

evaluation of the relative importance of the patient’s interest
in

privacy

eviscerate

and
the

the

evidentiary

effectiveness

of

need
the

for

disclosure

privilege.”

would

Id.

at

17

(emphasis added).
Here, the district court appears to have employed precisely
such

a

weighing

evidentiary

of

Kinder’s

need.

White’s

privacy
motion

interest
for

versus

disclosure

White’s

was

made

pursuant to a West Virginia statute that allows for disclosure
of privileged medical information if the court finds that “the
information

is

sufficiently

relevant

.

.

.

to

importance of maintaining the confidentiality.”
27-3-1(b)(3).

outweigh

the

W. Va. Code §

The district court’s preliminary order directing

production of the records for in camera review relied expressly
on the West Virginia statute.

The district court’s final order

of disclosure, while acknowledging Jaffe’s “ardent[] reject[ion
of] this context-specific, ad hoc approach to the applicability
of

the

privilege,”

J.A.

111,

ordered

the

disclosure

of

privileged mental health records based on the “perfect storm of
facts” before it, including most significantly White’s need to
challenge the credibility of “the central government witness,”
J.A. 123.

Such an analysis runs contrary to Jaffee, which made

clear

federal

the

psychotherapist-patient

privilege

“is

not

rooted in any constitutional right of privacy but in a public
good

which

overrides

the

quest
13

for

relevant

evidence;

the

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 14 of 37

privilege is not subject to a balancing component.”

Glass, 133

F.3d at 1358 (internal quotation marks omitted).
We find no basis in the record to justify disclosure of
Kinder’s records that fall within the protective scope of the
psychotherapist privilege.

Accordingly, we conclude that the

district court’s order of disclosure was in error.
the

court’s

ruling

and

direct

that

Kinder’s

We reverse

mental

health

records, to the extent the district court has retained copies
thereof, be returned to the hospitals that produced the records
or be destroyed.
III.
Regarding the issue of waiver, given the novelty of this
area of the law and the fact that it has never been pursued—not
in

this

court

on

appeal

decline to address it.
district
court

court,

that

White’s

White

did

or

in

the

district

court

below—we

In fact, in the proceedings before the
counsel
not

take

expressly
the

told

position

the

district

that

Kinder’s

statements at her Rule 11 hearing constituted a waiver of the
privilege:
THE COURT:
Are you saying that anything that you
learned through her statements in her plea hearing,
you should be allowed to cross-examine her on?
[WHITE’S COUNSEL]:

Yes, sir, I do.

THE COURT: All right. But you’re not saying that she
waives the privilege and, therefore, you get access to

14

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

the records
hearing?

because

of

Pg: 15 of 37

what

she

said

in

the

plea

[WHITE’S COUNSEL]:
No.
What I’m saying is that’s
what I understand this hearing to be about, that
whether or not this defendant, in connection with his
right of confrontation, is allowed to review those
notes made as they pertain to a diagnosis and
treatment.
THE COURT:
Well, I don’t think you answered
question there and I want to be very clear on this.

my

[WHITE’S COUNSEL]: Okay.
THE COURT: . . . [T]he purpose of this hearing is much
broader than that.
I want to have a full discussion
of this whole issue, but . . . my specific question
there was, are you arguing that because she disclosed
a small amount of information at the plea hearing . .
. that she has, therefore, waived the privilege with
regard to all these records?
[WHITE’S COUNSEL]:
J.A.

49

(emphasis

No, I’m not.

added).

I don’t say that.

Hence,

the

district

court

specifically noted in its order that whether Kinder waived her
privilege was a non-issue, as “both parties to this case agree
that Kinder has not waived her privilege by responding to the
Court’s questions at the plea hearing.”

J.A. 109.

Absent unusual circumstances, this court does not address
arguments on appeal that were not raised in the district court.
See Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th
Cir. 1999); see also Crawford Prof’l Drugs, Inc. v. CVS Caremark
Corp., 748 F.3d 249, 267 (5th Cir. 2014) (“The general rule of
this

court

court

are

is

that

waived

arguments
and

will

not
not
15

raised
be

before

the

district

considered

on

appeal.”

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 16 of 37

(internal quotation marks omitted)).

And here we are presented

with an even more compelling basis not to address the issue of
waiver than White’s failure to argue it below—White’s contrary
assertion to the district court disavowing any reliance on a
waiver theory.
On top of that, White has not even argued on appeal that
this court should affirm on the basis of waiver.

White does not

mention waiver in his brief, except to muse in passing that the
district court “could have properly found” that Kinder waived
the privilege, Brief of Appellee at 11 (emphasis added), even
though White took the opposite position below.

This fleeting

mention of waiver in a single sentence couched in conditional
terms is not an argument—it’s an observation.

It is not the

practice of this court to consider an argument that has not been
developed in the body of a party’s brief or identified in the
headings.
n.7

See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653

(4th

Cir.

2006)

(single

“conclusory

remark”

in

brief

“insufficient” to constitute an argument); see also Reynolds v.
Wagner,

128

F.3d

166,

178

(3d

Cir.

1997)

(“[A]n

argument

consisting of no more than a conclusory assertion . . . will be
deemed waived.”).
issue

in

issue.”

his

“[A] party’s failure to raise or discuss an

brief

is

to

be

deemed

an

abandonment

of

that

Hatley v. Lockhart, 990 F.2d 1070, 1073 (8th Cir. 1993)

(internal quotation marks omitted)).
16

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 17 of 37

We recognize that, in limited circumstances, this court may
affirm a district court’s ruling on “any theory, argument, or
contention which is supported by the record.”

Blackwelder v.

Millman, 522 F.2d 766, 771 (4th Cir. 1975) (internal quotation
marks

omitted).

The

court

does

not

follow

this

practice,

however, when doing so “unfairly prejudice[s] the appellant in
[the] presentation of his case.”

United States v. Gould, 741

F.2d 45, 50 n.5 (4th Cir. 1984).

Even if White were actually

urging us to consider a waiver theory—which he is not—affirming
on the basis of waiver in this case would be highly prejudicial
to Kinder.

In light of White’s representation to the district

court that “Kinder has not waived her privilege by responding to
the Court’s questions at the plea hearing” and his subsequent
choice not to brief the issue of waiver on appeal, Kinder had
absolutely no reason to develop an argument on appeal that her
answers

to

constituted

the
a

court’s

waiver

of

questions
the

during

privilege

her

with

plea
respect

colloquy
to

her

records.
In sum, it would be most unusual for this court to address
sua sponte a non-jurisdictional issue rejected by both parties
below and not argued or briefed on appeal.

But, even if we were

to reach the merits, we would have serious doubts that answers

17

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 18 of 37

given by a defendant to a judge’s questions during a Rule 11
colloquy would amount to a voluntary waiver.
REVERSED

18

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 19 of 37

WYNN, Circuit Judge, dissenting:
Kim Kinder and Michael White conspired to commit arson.
Kinder cooperated with the government, and the government, in
turn, charged Kinder with only one arson-related offense, to
which she pled guilty.

The government then agreed to argue for

a reduced sentence for Kinder.
At

her

plea

hearing,

Kinder

testified

at

length

and

in

detail about her mental health diagnoses, hospitalizations, and
treatments.

Kinder’s testimony went well above and beyond what

the district court asked.
Kinder,

or

her

counsel

And not once during her testimony did
on

her

behalf,

raise

the

issue

witness

in

of

privilege.
Ultimately,

Kinder

served

as

the

star

the

government’s case against White, who was charged with several
arson-related offenses.

As part of his defense, White sought

Kinder’s mental health records from hospitalizations he learned
about at Kinder’s plea hearing in open court.
her

own

proceeding,

in

White’s

criminal

Yet, unlike in

proceeding,

Kinder

asserted the psychotherapist-patient privilege in an attempt to
block White’s counsel from gaining access to records related
directly to her plea hearing testimony.
By liberally discussing her mental health issues in her
extensive

open-court

testimony

in

her

own

proceeding,

Kinder

waived her psychotherapist-patient privilege as to the limited
19

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 20 of 37

and directly-related records that the district court released in
White’s case.

Accordingly, because I agree with the district

court’s grant of White’s motion for early production of records,
I respectfully dissent.

I.
White, a West Virginia businessman, owned a two-unit duplex
near Van, West Virginia.
difficulties.

Among them, White was no longer receiving income

from his duplex:
White

In 2009, White experienced financial

His tenants no longer paid their rent.

“express[ed]

this

frustration

to

Kim

Kinder,

an

across-the-street neighbor with whom White was carrying on an
affair.”
2014).

United States v. White, 771 F.3d 225, 228 (4th Cir.
“White purchased a fire-insurance policy” that “provided

$80,000 coverage for the duplex and $20,000 for its contents.”
Id.

He then asked Kinder and her husband “to burn it down as

soon as possible.”

Id.

White gave the Kinders some money and

told them that he had evicted the tenants.

On October 16, 2009,

after a couple of trips to the duplex, the Kinders set it on
fire.
White recovered the full proceeds on the insurance policy
he had taken on the duplex, plus an additional amount for major
appliances.

And he ultimately paid about $2000 to the Kinders.

20

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 21 of 37

In June 2010, West Virginia police contacted Kinder.

After

initially denying involvement in the arson, Kinder confessed and
agreed

to

cooperate

with

the

authorities.

Kinder

made

“a

recorded telephone call to White in which they discussed the
fire and White’s payment of money to the Kinders.

During the

call, Kinder made statements suggesting White’s involvement in
the arson which White did not deny.”

Id.

Kinder ultimately pled guilty to one count of conspiracy to
commit

arson

in

violation

of

18

U.S.C.

§ 844(i).

The

government, in turn, “agree[d] to file a motion in Ms. Kinder’s
case

requesting

the

Court

reduce

her

sentence

based

on

the

substantial assistance she has already provided in the criminal
investigation and prosecution of another.”

Plea Agreement at 4,

United States v. Kinder, No. 2:12-cr-00114 (S.D. W. Va. Mar. 5,
2012).
During her initial plea hearing, Kinder told the district
court

that

she

took

numerous

medications,

including

depressants, anti-anxiety drugs, and muscle relaxers.

antiKinder

also revealed that she had been diagnosed with bipolar disorder
and

schizophrenia.

She

did

not

know,

however,

which

drugs

treated which conditions because her treatment providers “never
told

[her]

that

schizophrenia.”

this
Tr.

of

is

what

Plea

I

Hr’g

am
at

prescribing
12,

United

Kinder, No. 2:12-cr-00114 (S.D. W. Va. June 19, 2012).
21

you
States

for
v.

Appeal: 13-4198

Doc: 61

Kinder

Filed: 04/22/2015

detailed

her

Pg: 22 of 37

extensive

psychiatric

issues

and

treatments well beyond what would have been necessary simply to
answer

the

district

court’s

questions.

She

explained,

for

example, that “it was just – just pretty much the way my life
has went for the past 26 years, is in and out of hospitals and
emergency rooms and what – because I didn’t know, they couldn’t
tell me what was wrong with me.

I was having panic attacks and

they were telling me I just had a little anxiety and send me
home . . . .”

Id. at 11.

Kinder also reported that she had

repeatedly attempted suicide.
Kinder detailed her voluntary and involuntary admissions to
the “psych wards” of four different hospitals, the most recent
admission occurring only about a year before the plea hearing.
Id. at 7.
Hospital,
Highland

She identified those hospitals as Logan Regional
St.

Mary’s

Hospital.

Hospital,
And

she

Thomas

identified

Memorial
at

Hospital,

least

treating physicians by name—Dr. Fink at St. Mary’s.

one

of

and
her

Kinder also

shared, for example, that she felt her doctors did not “really
care[] enough to sit down and find out what was going on and
most . . . would just, you know, write me more drugs and send me
home.”

Id. at 13.

22

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 23 of 37

Not once during any of this did Kinder express privilege
concerns. 1

At no point during her extensive testimony did either

Kinder or her counsel, for example, seek a side bar or otherwise
raise the specter of the psychotherapist-patient privilege.

And

“counsel for [White] was present in the public gallery during
the proceeding to hear this entire discussion.”

J.A. 97-98.

Based on the information revealed by Kinder during her plea
hearing, White filed a motion for early production of records in
his

own

criminal

proceeding.

He

sought

Kinder’s

treatment

records from each of the four hospitals Kinder identified at her
plea hearing.
The
Kinder’s

government
records

opposed

were

psychotherapist-patient

White’s

protected
privilege

Redmond, 518 U.S. 1 (1996).

motion,

from

arguing

disclosure

recognized

in

that

by

Jaffee

the
v.

Kinder then intervened and also

objected to the motion.
Initially,
documents

the

[were]

camera review.”

district

sufficiently
J.A. 91.

court

found

relevant

.

“that
.

.

the
to

requested

warrant

in

The district court therefore entered

1

On the contrary, Kinder suggested that she had repeatedly
shared the information with others before, lamenting that she
“should probably write these [details about her mental health
diagnoses and treatments] down
because people ask me a lot.”
Tr. of Plea Hr’g at 12, United States v. Kinder, No. 2:12-cr00114 (S.D. W. Va. June 19, 2012).

23

Appeal: 13-4198

a

Doc: 61

preliminary

Filed: 04/22/2015

order

directing

Pg: 24 of 37

each

of

the

four

hospitals

to

produce Kinder’s records solely to the court.
After conducting its review, the district court determined
that to the extent the hospital records revealed communications
from Kinder to, or diagnoses from, her psychiatrists, they fell
within

the

scope

Nevertheless,

of

the

observing

psychotherapist-patient
that

the

privilege.

psychotherapist-patient

privilege recognized in Jaffee is not absolute, the district
court concluded that the privilege “contemplates an exception
where

necessary

to

constitutional rights.”

vindicate

a

criminal

defendant’s

J.A. 119.

The district court found such an exception warranted in
this case, concluding that White should obtain Kinder’s records
under the Due Process Clause.
as

the

“perfect

including

The district court saw the matter

storm

of

facts”

role

as

a

Kinder’s

justifying

an

co-conspirator,

exception—

Kinder’s

self-

interest in assisting the government (in the hope of reducing
her

own

sentence),

the

importance

of

Kinder’s

testimony

and

credibility to the government’s case against White, and Kinder’s
admission to various mental health diagnoses “that potentially
implicate

her

ability

relate information.”
granted

White’s

to

accurately

J.A. 123.

motion

for

perceive,

process,

and

Accordingly, the district court

early

ordered limited disclosure.
24

production

of

records

and

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 25 of 37

At his trial, 2 White used the disclosed records to crossexamine Kinder.

But the district court ruled that the records

could not be introduced into evidence.
convicted

White

on

several

Ultimately, the jury

arson-related

counts,

and

the

district court sentenced him to concurrent 78–month terms of
imprisonment on each count.

White, 771 F.3d at 228-29.

appealed, and his case has been resolved.

Id.

White

Only Kinder’s

appeal of the district court’s records-related ruling is before
us now.

II.
Kinder argues that in deciding whether her mental health
records were protected from disclosure by the psychotherapistpatient privilege, the district court engaged in the type of
balancing
Jaffee.

analysis

the

Supreme

Court

expressly

rejected

in

White counters that the district court properly applied

the distinguishable Jaffee, that the district court could have
deemed the privilege waived by Kinder’s discussing her mental
health treatment in open court, and that the district court also

2

The government dismissed its first indictment against
White and brought a second one because Kinder “contradicted the
facts she had provided earlier” as the government’s star witness
in its case against White. J.A. 98. The trial was based on the
second indictment.

25

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 26 of 37

could have found that the records it released fell outside of
any privilege.
On

appeal,

“[w]e

review

factual

findings

underlying

an

attorney-client privilege ruling for clear error, and we review
the application of legal principles de novo.”
Subpoena,

341

consideration,

F.3d
I

331,

must

334

(4th

Cir.

agree

with

White:

In re Grand Jury

2003).

Upon

Kinder

careful

waived

her

privilege in the subject matter of the released records.
A.
As

an

precludes

us

“certainly

initial
from

matter,
reaching

I

do

the

not

believe

privilege-waiver

that

waiver

issue.

I

agree” that White “did not ‘pellucidly articulate

this theory’ below.”

Quicken Loans Inc. v. Alig, 737 F.3d 960,

964-65 (4th Cir. 2013) (quoting Harris Trust & Sav. Bank v.
Salomon Smith Barney, Inc., 530 U.S. 238, 245 n. 2 (2000)).
Nevertheless,

while

White

did

not

call

his

argument

below

waiver, it had the stuff of waiver—so much so that opposing
counsel recognized it as such and railed against it.

J.A. 65

(stating that White’s counsel argued “that in as much as Ms.
Kinder has spoken about some of her history in court. . . there
may be some – a waiver or some way to think that there is no –
there in no expectation of privacy here” and arguing against the
same).

Further, on appeal, White contends that “the District

Court could have properly found that Ms. Kinder had waived any
26

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 27 of 37

privilege she might have had in these records by talking about
her

hospitalizations

.

.

.

in

open

court,

thus

she

reasonable expectation of privacy after that point.”

had

no

Appellee’s

Br. at 11.
Moreover,

“‘we

review

judgments,

not

opinions’

and,

consequently, we are ‘entitled to affirm the district court on
any ground that would support the judgment in favor of the party
prevailing below.’”

Everett v. Pitt Cnty. Bd. of Educ., 678

F.3d

Cir.

281,

291

(4th

2012)

(quoting

Crosby

v.

Gastonia, 635 F.3d 634, 643 n. 10 (4th Cir. 2011)).
district

court’s

judgment

production of records.

granted

White’s

motion

City

of

Here, the
for

early

Though I would grant the motion on a

different basis than that of the district court, the judgment—
granting White’s motion—would remain the same, and I therefore
would affirm.
Accordingly, “under the facts and circumstances of this
case [I would] reach the [privilege-waiver] argument.”

Quicken

Loans, 737 F.3d at 965.
B.
In 1996, with Jaffee, the Supreme Court resolved a circuit
split by “recogniz[ing] a psychotherapist privilege.”
at 7.

518 U.S.

The Court concluded that a social worker’s notes from her

counseling sessions with a police officer who had been sued for
use of excessive force were protected from disclosure by the
27

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 28 of 37

psychotherapist-patient privilege.

The Supreme Court reasoned

that “[e]ffective psychotherapy . . . depends upon an atmosphere
of

confidence

disclosure”

and
of

trust”

and

that

“confidential

“the

mere

possibility

communications

made

of

during

counseling sessions” could hinder productive therapy.

Id. at

10.
The

Supreme

privileges,

the

Court

found

that,

psychotherapist

like

privilege

other

testimonial

serves

the

greater

public interest by facilitating effective mental health care—“a
public

good

concluded

of

transcendent

that

communications

a

importance.”

“privilege

between

a

Id.

The

protecting

psychotherapist

Court

confidential

and

her

patient

‘promotes sufficiently important interests to outweigh the need
for

probative

evidence.’”

Id.

at

9–10

(quoting

Trammel

v.

United States, 445 U.S. 40, 51 (1980)).
Nevertheless, because such privileges “‘impede[] the full
and

free

discovery

construed.’”

In

of

re

the

Grand

truth,’”
Jury

they

Subpoena,

must
341

be

“narrowly

F.3d

at

335

(quoting Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).
They are thus “‘recognized only to the very limited extent that
excluding relevant evidence has a public good transcending the
normally predominant principle of utilizing all rational means
for ascertaining truth.’”

Id.

28

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Accordingly,

like

other

Pg: 29 of 37

privileges,

patient privilege is not absolute.

the

psychotherapist-

The Supreme Court noted that

“[a]lthough it would be premature to speculate about most future
developments in the federal psychotherapist privilege, we do not
doubt that there are situations in which the privilege must give
way.”

Jaffee,

518

U.S.

at

18

n.19.

The

Supreme

Court

identified one such potential exception—where “a serious threat
of harm to the patient or to others can be averted only by means
of a disclosure by the therapist.”

Id.

Finally, the Supreme Court recognized that a patient may
waive the psychotherapist-patient privilege.

Id. at 15 n.14

(“Like other testimonial privileges, the patient may of course
waive the protection.”).

Thus, this Court later held that “[a]

patient

psychotherapist-patient

may

waive

the

knowingly and voluntarily relinquishing it.

privilege

by

A waiver may occur

when the substance of therapy sessions is disclosed to unrelated
third parties, or when the privilege is not properly asserted
during testimony.”

United States v. Bolander, 722 F.3d 199, 223

(4th Cir.), cert. denied, 134 S. Ct. 549 (2013) (citations and
parentheticals omitted).
In

Bolander,

the

patient

“failed

to

assert

the

psychotherapist patient privilege during his . . . deposition.
During

that

deposition,

[he]

was

asked

questions

participation in [a sex offender treatment program].
29

about

his

He did not

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 30 of 37

assert any privilege with respect to the information he provided
in

the

program.
.”

[program],

including

documents

generated

by

the

Instead, [he] openly discussed his participation . . .

722 F.3d at 223.

without

the

asserting

the

We held that “[b]y answering questions
psychotherapist

patient

privilege,

patient] waived any privilege he may have enjoyed.”

[the

Id.

Our analysis in Bolander relied on Hawkins, 148 F.3d 379, a
case

involving

the

longstanding

attorney-client

privilege,

to

which the Supreme Court, too, analogized the psychotherapistpatient privilege.

See Jaffee, 518 U.S. at 11.

In Hawkins, we

noted that the “client is the holder” of the privilege, as is
the

patient

in

the

psychotherapy

context,

either expressly, or through conduct.”

“and

can

waive

it

148 F.3d at 384 n.4

(citations and parentheticals omitted); see also Koch v. Cox,
489 F.3d 384, 391 (D.C. Cir. 2007) (noting that a plaintiff
“waives the psycho-therapist-patient privilege when . . . he
does

the

sort

of

thing

that

would

waive

the

attorney-client

privilege”).
In Hawkins, a former husband alleged that his former wife
illegally recorded telephone conversations between him and his
girlfriend.

In

her

deposition,

the

former

wife

answered

questions about whether her lawyer had advised her regarding the
wiretap:

30

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 31 of 37

Q: Is it true or not that Larry Diehl, in his
capacity as your [divorce] attorney, told you to take
a wiretap off the phone at the marital residence?
A: No, sir. Because I wouldn’t have discussed
that with him, since it didn’t happen. So, therefore,
he would have no need to make mention of that to me.
Hawkins, 148 F.3d at 381.
question

asked

information

during

regarding

We observed that “[a]lthough the
the

deposition

confidential

clearly

communications

elicited

[the

former

wife] may have had with [her lawyer], and was objectionable on
its face on the ground of attorney-client privilege, neither
[the former wife] nor her attorney asserted an objection.”
In

answering

objection,

the

the

former

question
wife

without

“waived

subject matter of the phone tap.”

the

raising

a

privilege

Id. at 384.

Id.

privilege
as

to

the

And “[b]ecause

the privilege had been impliedly waived by [the former wife],
[the former husband] was entitled to question [the former wife’s
lawyer] regarding the alleged wiretap.”

Id.

As Hawkins illustrates, waiver through conduct, or “implied
waiver,” “occurs when the party claiming the privilege has made
any disclosure of a confidential communication to any individual
who is not embraced by the privilege.”

Id. at 384 n.4; see

also, e.g., Hanson v. United States Agency for Int’l Dev., 372
F.3d 286, 294 (4th Cir. 2004) (“Implied waiver occurs when a
party

claiming

the

privilege

has

voluntarily

disclosed

confidential information on a given subject matter to a party

31

Appeal: 13-4198

not

Doc: 61

covered

disclosure

Filed: 04/22/2015

by

the

Pg: 32 of 37

privilege.”).

“vitiates

the

This

confidentiality

essence of the . . . privilege.”

is

because

that

such

constitutes

a

the

Hawkins, 148 F.3d at 384 n.4.

And disclosure “not only waives the privilege as to the specific
information revealed, but also waives the privilege as to the
subject matter of the disclosure.”
The

reasoning

intuitive:

behind

Id.

waiver

in

such

circumstances

is

“[A] judicial system that ignores publicly known

information or information known to an adversary risks losing
its

legitimacy

as

a

truth-seeking

process.”

Privileged

Communications, 98 Harv. L. Rev. 1450, 1646 (May 1985).

Indeed,

“[o]ver time, public confidence in our legal system might be
eroded

.

.

.

by

a

general

perception

that

the

courts

systematically exclude probative evidence” or the potential for
“public disagreement with the factfinder’s decision.”
1646-47.

It

disclosures

that

has,
are

therefore,
likely

to

been
lead

suggested
to

Id. at

that

privileged

“all

material

becoming either public or accessible to the privilege-holder’s
legal adversary should be treated as waiving the privilege with
respect to the matter disclosed.”
In

deeming

communications

Id. at 1647.
impliedly

waived,

this

Circuit

has found waiver even in closed proceedings and pursuant to a
subpoena.

For example, in United States v. Bollin, we held that

the defendant waived the attorney-client privilege as to certain
32

Appeal: 13-4198

Doc: 61

transactions

Filed: 04/22/2015

communications

and

Pg: 33 of 37

with

his

attorney

where

he

testified “before the grand jury pursuant to a subpoena” about
those transactions and communications.

264 F.3d 391, 412 (4th

Cir. 2001).
We have also recognized implied waiver in the context of
communications that predated the commencement of the litigation
where the waiver issue had been raised.

For example, in In re

Grand

defendant

Jury

Subpoena,

we

held

that

the

waived

the

attorney-client privilege regarding whether a lawyer had aided
him in answering a question on an immigration form when, in an
earlier

conversation

with

Federal

Bureau

of

Investigation

agents, the defendant had reported that he had answered the form
question as he did on the advice of an attorney.

341 F.3d 331.

And in In re Grand Jury Subpoena, we indicated that while no
“broad-based” waiver occurred, a client’s identity and certain
documents identified in a subpoena were no longer confidential,
and

any

client

privilege

associated

authorized

his

with

attorney

them
to

was

waived,

convey

to

when

the

the

lawyer

representing parties threatening suit his motives for seeking
legal advice.

204 F.3d 516, 522 (4th Cir. 2000).

Viewing these cases holistically, they indicate that in
this

Circuit,

privilege

must

privileges
be

including impliedly.

such

construed

as

the

narrowly

psychotherapist-patient
and

may

be

waived,

And implied waiver may be effectuated by
33

Appeal: 13-4198

Doc: 61

disclosure

Filed: 04/22/2015

to

third-parties

Pg: 34 of 37

before

the

litigation

at

hand

commences and by providing information in response to a court
command such as a subpoena.
C.
Turning now to the case at hand, during her plea hearing in
open

court,

numerous

Kinder

medications,

told

the

district

including

drugs, and muscle relaxers.

court

that

anti-depressants,

she

took

anti-anxiety

Kinder revealed that she had been

diagnosed with bipolar disorder and schizophrenia but that she
did not know which drugs treated which conditions because her
treatment providers “never told [her] that this is what I am
prescribing you for schizophrenia.”

Tr. of Plea Hr’g at 12,

United States v. Kinder, No. 2:12-cr-00114 (S.D. W. Va. June 19,
2012).
Kinder detailed—well beyond what the district court asked—
her extensive psychiatric issues and treatments.

She explained

that her metal health deteriorated after the birth of her son
and that “it was just – just pretty much the way my life has
went for the past 26 years, is in and out of hospitals and
emergency rooms and what – because I didn’t know, they couldn’t
tell me what was wrong with me.

I was having panic attacks and

they were telling me I just had a little anxiety and send me
home . . . .”

Id. at 11.

Kinder also reported multiple suicide

attempts.
34

Appeal: 13-4198

Doc: 61

Kinder
wards”:

detailed

Logan

Memorial

Filed: 04/22/2015

Regional

Hospital,

identified

at

her

least

and

admissions

Hospital,
Highland

one

Pg: 35 of 37

of

her

St.

to

four

hospital
Hospital,

Mary’s

Hospital.
treating

“psych
Thomas

Id.

at

7.

She

physicians

by

name.

Kinder also shared, for example, that she felt her doctors did
not “really care[] enough to sit down and find out what was
going on and most . . . would just, you know, write me more
drugs and send me home.”

Id. at 13.

At no point during her extensive testimony did Kinder or
her counsel express privilege concerns.
for example, seek a side bar.

Not once did either,

Meanwhile, “counsel for [White]”—

and who knows who else—“was present in the public gallery during
the proceeding to hear this entire discussion.”

J.A. 97-98.

Further, the transcript of “this entire discussion” is a filed
document not under seal and thus publicly available for all to
see.
White’s motion for early production of records was based on
the information Kinder revealed during her plea hearing.

He

sought only limited treatment records, only from each of the
four hospitals Kinder identified at her plea hearing, and only
for use in his related criminal proceeding.
With

her

extensive

testimony

in

open

court,

Kinder

“vitiate[d] the confidentiality that constitutes the essence” of
the psychotherapist-patient privilege as to the limited records
35

Appeal: 13-4198

Doc: 61

White sought.
disclosed

Filed: 04/22/2015

Pg: 36 of 37

Hawkins, 148 F.3d at 384 n.4.

confidential

information

on

[the

She “voluntarily
pertinent]

subject

matter to a party not covered by the privilege” and thereby
Hanson, 372 F.3d at 294. 3

impliedly waived it.

In my view, the fact that the testimony that constituted
implied

waiver

here

was

prompted

by

the

(limited) questioning is not dispositive.

district

court’s

Cf. Bollin, 264 F.3d

at 412 (holding that the defendant waived the attorney-client
privilege as to certain transactions and communications with his
attorney where he testified “before the grand jury pursuant to a
subpoena”

about

the

testimony

resulting

same).
in

waiver

White’s criminal proceeding.
F.3d

331

(holding

that

Nor

is

it

predated

dispositive
the

that

commencement

the
of

See In re Grand Jury Subpoena, 341

defendant

waived

the

attorney-client

privilege through an earlier conversation with federal agents);
In re Grand Jury Subpoena, 204 F.3d at 522 (indicating that
attorney-client privilege was waived by an earlier letter sent
at client’s request upon threat of a civil suit).

3

Kinder also permitted the disclosure of her mental health
records for purposes of her presentence report.
But the
confidentiality of presentence reports—which routinely address
“intensely personal matters” such as family history, mental
health, and financial condition—“has always been jealously
guarded.” United States v. Trevino, 89 F.3d 187, 192 (4th Cir.
1996).
I would thus decline any invitation to downgrade the
presentence report’s confidentiality here.

36

Appeal: 13-4198

Doc: 61

Filed: 04/22/2015

Pg: 37 of 37

In sum, I conclude that by discussing at length, in detail,
and without any hint of privilege concerns, her mental health
problems and treatments in open court, Kinder extinguished the
confidentiality of those subjects and thereby waived her ability
to block White’s access to directly-related records by claiming
privilege.

The

district

court

therefore

did

not

err

in

authorizing a limited release of certain of Kinder’s records to
White for use in his related criminal proceeding.

III.
For the reasons above, I would affirm the district court’s
grant

of

White’s

motion

for

early

Accordingly, I respectfully dissent.

37

production

of

records.