Leadholm v. City of Commerce City, The et al
ORDER by Magistrate Judge Michael E. Hegarty on 12/04/2017. The Plaintiff shall produce copies of records on which redactions should be removed to the defendants on or before 12/11/2017. (mdave, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02786-MEH
CITY OF COMMERCE CITY, COLORADO,
JEREMY JENKINS, and
Michael E. Hegarty, United States Magistrate Judge.
On August 8, 2017, the Court issued an order following review in camera of certain medical
records Plaintiff had withheld from Defendants pursuant to the physician-patient privilege.
Defendants did not challenge application of the privilege but, rather, whether the Plaintiff waived
the privilege by inserting his health into the case by seeking recovery for health-related injuries. The
Court erroneously (but without objection) applied the physician-patient privilege recognized in
Colorado to seven pages of medical records in this case and determined whether they were properly
redacted. See ECF No. 100.
Now, Defendants seek the Court’s review of forty1 additional pages of medical records
redacted by the Plaintiff and ask the Court to compel the Plaintiff to produce unredacted copies of
The Court notes that, although there may be forty-one pages contained in the pdf documents
submitted to chambers, each set contains twenty-six separate documents and fifteen copies of the
same document, Bates-label 000619.
the same. Citing Colorado law, Defendants contend that through both written and oral discovery,
the Plaintiff has waived any privilege by placing his mental health at issue in this case as an injury
for which he seeks relief. Plaintiff counters that only information not related to this case or to the
Plaintiff’s injuries has been redacted from the records. Defendants reply that any information
suggesting “(i) pre-existing conditions related to claimed conditions, (ii) alternative causes for
claimed conditions, and (ii) pre- or postincident events related to claimed conditions” is relevant and
discoverable. Reply 2.
At the Court’s request, the Plaintiff provided the Court with both redacted and unredacted
copies of the challenged records for in camera review. To determine whether the records are
properly redacted, the Court must consider both the Plaintiff’s allegations and the applicable law.
The allegations of this case were wholly set forth in my August 8, 2017 order (see ECF No. 100) and
the applicable legal standards follow.
Rule 26(b)(5) of the Federal Rules of Civil Procedure governs the withholding and
production of privileged materials in a federal lawsuit. As pertinent here, Rule 26(b)(5) states:
(A) Information Withheld. When a party withholds information otherwise
discoverable by claiming that the information is privileged or subject to protection
as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not
produced or disclosed – and do so in a manner that, without revealing information
itself privileged or protected, will enable other parties to assess the claim.
(B) Information Produced. If information produced in discovery is subject to a claim
of privilege or of protection as trial-preparation material, the party making the claim
may notify any party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information until the
claim is resolved; must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present the information to the
court under seal for a determination of the claim. The producing party must preserve
the information until the claim is resolved.
Fed. R. Civ. P. 26(b)(5).
Plaintiff brings two claims in this case pursuant to 42 U.S.C. § 1983: (1) excessive force in
violation of the Fourth Amendment; and (2) deliberately indifferent training in violation of the
Eighth/Fourteenth Amendments. In federal question cases such as this one,2 federal privilege law
controls, and no physician-patient privilege exists under federal law. Whalen v. Roe, 429 U.S. 589,
602 n. 28 (1977) (“The physician-patient ... privilege is unknown to the common law.”); see also
Fed. R. Evid. 501 (“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, the Supreme Court established the federal psychotherapist-patient privilege in
Jaffee v. Redmond, 518 U.S. 1 (1996), holding 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.” Id. at 15. Communications
must be made in the course of diagnosis and treatment. Id. The privilege also protects notes made
during the course of treatment. Dorato v. Smith, 163 F. Supp. 3d 837, (D. N.M. 2015) (citing Jacobs
v. Conn. Cmty. Tech. Colls., 258 F.R.D. 192, 195 (D. Conn. 2009)). Furthermore, the Supreme
Court determined, “[l]ike other testimonial privileges, the patient may of course waive the
protection,” but gave no further explanation as to when such waiver might occur. See Jaffee, 518
U.S. at 15 n.14. “Numerous courts since Jaffee have concluded that, similar to attorney-client
See ECF No. 109 at 2.
privilege that can be waived when the client places the attorney’s representation at issue, a plaintiff
waives the psychotherapist-patient privilege by placing his or her medical condition at issue.”
Fisher v. S.W. Bell Tele. Co., 361 F. App’x 974, 978 (10th Cir. 2010) (quoting Schoffstall v.
Henderson, 223 F.3d 818, 823 (8th Cir. 2000)) (holding that a plaintiff who makes a request for
emotional distress damages places his psychological state in issue and entitles a defendant to his
mental health records).
In the absence of any privilege, a plaintiff’s medical records are governed by issues of
relevance and confidentiality commonly addressed in civil lawsuits. See Fed. R. Civ. P. 26(b) and
(c). Courts typically construe the scope of discovery broadly; however, a court must “limit the
frequency or extent of discovery otherwise allowed . . . if it determines that . . . the proposed
discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(iii). Rule
26(b)(1) describes the scope of discovery as:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Generally, “[w]hen the discovery sought appears relevant, the party resisting the discovery
has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1)
does not come within the scope of relevance as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of
such marginal relevance that the potential harm occasioned by discovery would outweigh the
ordinary presumption in favor of broad disclosure.” Simpson v. Univ. of Colo., 220 F.R.D. 354, 359
(D. Colo. 2004) (citations omitted). However, “when [the] relevancy [of a discovery request] is not
readily apparent, the party seeking the discovery has the burden to show the relevancy of the
Regarding confidentiality of medical records pursuant to Rule 26(c) (and to the extent these
records are not privileged), the Court notes its discussion with the parties at the November 30, 2017
conference at which defense counsel recognized that, although a protective order has been approved
orally by the Court, none has been signed and issued. Accordingly, Defendant City of Commerce
City agreed to provide the Court with a proposed order for issuance this week. To the extent
necessary, the Court finds that such order will be sufficient to address any issues of confidentiality
in this matter.
According to Plaintiff, he “sustained physical and emotional injuries including, but not
limited to, a fracture to his left ring finger, bilateral pain to his right and left shoulders, Post
Traumatic Stress Disorder [“PTSD”] and Depression.” Resp. 2. The records at issue here all
contain information from the Plaintiff’s visits with a licensed psychotherapist, which the Court finds
are facially privileged pursuant to Jaffee.
Defendants are concerned primarily with obtaining information regarding Plaintiff’s PTSD
and cite to different sources concerning “aggregate trauma” and whether it is a facet of PTSD;
however, the Court finds it would be helpful to have a general definition of the disorder’s symptoms
to determine whether the challenged records contain information that has been placed at issue in the
case. See Fisher, 361 F. App’x at 978. According to the American Psychiatric Association (cited
generally by Defendants), PTSD
is a psychiatric disorder that can occur in people who have experienced or witnessed
a traumatic event such as a natural disaster, a serious accident, a terrorist act,
war/combat, rape or other violent personal assault.
PTSD has been known by many names in the past, such as “shell shock” during the
years of World War I and “combat fatigue” after World War II. But PTSD does not
just happen to combat veterans. PTSD can occur in all people, in people of any
ethnicity, nationality or culture, and any age. PTSD affects approximately 3.5 percent
of U.S. adults, and an estimated one in 11 people will experience PTSD in their
People with PTSD continue to have intense, disturbing thoughts and feelings
related to their experience that last long after the traumatic event has ended. They
may relive the event through flashbacks or nightmares; they may feel sadness, fear
or anger; and they may feel detached or estranged from other people. People with
PTSD may avoid situations or people that remind them of the traumatic event, and
they may have strong negative reactions to something as ordinary as a loud noise
or an accidental touch.
A diagnosis of PTSD requires exposure to an upsetting traumatic event. However,
exposure could be indirect rather than first hand. For example, PTSD could occur in
an individual who learns that a close family member or friend has died accidentally
https://www.psychiatry.org/patients-families/ptsd/what-is-ptsd, last visited November 24, 2017
With the applicable legal standards and PTSD definition in mind and after reviewing the
challenged records, the Court finds the following with respect to each record, as identified by its
Bates-label page number:
000274 - the very top right corner of the page should not be redacted.
000275 - only the second and third sentences of the six-sentence paragraph should
000277 - only the second, third, and fourth sentences of the six-sentence paragraph
should be redacted, and only the first sentence of the three-sentence paragraph
should be redacted.
000279 - all redactions are proper.
000283 - only the second and third sentences of the nine-sentence paragraph should
000284 - all redactions are proper.
000285 - because they are related to the unredacted information on the page, the
second, third, and sixth sentences in the six-sentence paragraph should be
000286 - because they are related to the unredacted information on the page, the
third and fourth sentences of the four-sentence paragraph should be unredacted.
000287 - the last sentence in the six-sentence paragraph should be unredacted, and
the first sentence of the two-sentence paragraph should be unredacted.
000288 - all redactions are proper.
000289 - all redactions are proper.
000290 - all redactions are proper.
000292 - all redactions are proper.
000293 - the last sentence of the three-sentence paragraph should be unredacted.
000294 - the first and fourth sentences of the five-sentence paragraph should be
000295 - the first sentence of the two-sentence paragraph should be unredacted.
000296 - the fourth sentence of the six-sentence paragraph should be unredacted.
000297 - all redactions are proper.
000298 - the first and fourth sentences of the four-sentence paragraph should be
000300 - all redactions are proper.
000303 - all redactions are proper.
000304 - the second sentence of the three-sentence paragraph should be unredacted.
000305 - all redactions are proper.
000306 - because it relates to the unredacted information on the page, the first
sentence of the two-sentence paragraph should be unredacted.
000308 - the first and second sentences of the four-sentence paragraph should be
unredacted, and the first sentence of the three-sentence paragraph should be
000619 - only the fourth sentence of the seven-sentence paragraph should be
The Plaintiff shall produce copies of records on which redactions should be removed to the
Defendants on or before December 11, 2017.
Dated at Denver, Colorado, this 4th day of December, 2017.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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