Jane Doe 77 v. Massac Unit School District #1 et al

Filing 180

ORDER denying 172 Motion to Quash. SNAP DIRECTED to provide the Court with documents responsive to the subpoeana by June 28, 2013 for in-camera review. Signed by Magistrate Judge Stephen C. Williams on 6/26/2013. (anj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JANE DOE 77,
Plaintiff,
vs.
MASSAC UNIT SCHOOL DISTRICT #1, a
corporation, WILLIAM HATFIELD,
DONALD SMITH, REUBEN BREMER,
and DARRYL BENTSON,

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Case No. 12-cv-268-SCW

Defendants.
MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
Before the Court is a Motion to Quash Subpoena filed by non-parties Survivor’s
Network of those Abused by Priests (hereinafter “SNAP”) and Barbara Dorris (Doc. 172).
Specifically, non-parties SNAP and Dorris seek to quash the subpoena this Court directed them to
respond to (See Doc. 168) and argues that their documents are protected by privilege. Defendants
Massac Unit School District #1, William Hatfield, Donald Smith, and Reuben Bremer have filed a
Response to the motion (Doc. 175). The Court held a hearing on the motion on June 25, 2013. The
following memorializes the Court’s findings and ruling at that hearing.
SNAP seeks to quash the subpoena issued against it because, they argue, their
communications with Plaintiff’s counsel are protected by privilege. SNAP informed the Court that it
never communicated with Plaintiff directly and has no communications with Dr. Peterson that are
related to this case. Federal Rule of Evidence 501 provides that federal common law governs
claims of privilege unless the case before the Court is one involving state claims, in which case, “state
law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”
Here, the Court has both federal claims, in the form of claims under Title IX and § 1983, and state law

claims before it.
Illinois provides a privilege for rape crisis groups. Specifically, Illinois statute
provides for a privilege of any confidential communications between victim and rape crisis personnel.
735 ILCS 5/8-802/1. Communications include any communication between a victim and a rape
crisis counselor made “in the course of providing information, counseling, and advocacy.” 735 ILCS
5/8-802.1(b)(4).

Thus, the Court finds that Illinois provides a privilege for communications

between counselors at SNAP and victims.
While state law may provide a privilege, the Court also has federal claims before it.
Under federal common law related to privilege, the Supreme Court has recognized a federal privilege
protecting confidential communications between a psychotherapist and a patient during the course of
treatment. Jaffee v. Redmond , 518 U.S. 1, 14-15, 116 S.Ct. 1923 (1996). The Supreme Court
recognized such a privilege, in part, because the vast majority of the states had adopted a
psychotherapist privilege. Id. Although not dealing with a psychotherapist in this case, SNAP is a
rape crisis group and the Court notes that a number of states have provided a privilege to such groups.
As noted, Illinois also provides a privilege to rape crisis groups. Given the consensus among the
states providing a privilege for rape crisis groups and considering the factors in Jaffee , the Court is
inclined to recognize a federal common law privilege for rape crisis groups.
Although the Court recognizes both a privilege for rape crisis groups under Illinois law
and federal common law, there is much dispute among the parties and SNAP as to whether
communications between Plaintiff’s counsel and SNAP fall under the rape crisis group privilege. As
such, the Court finds that the only way to determine whether specific documents are protected under
the privilege is to conduct an in-camera review of the documents. Accordingly, the Court DENIES
SNAP’s motion to quash (Doc. 172) and DIRECTS SNAP to provide the Court with only those
documents related to Jane Doe 77 for in-camera review. SNAP has until close of business on Friday,

June 28, 2013 in which to provide the documents to the Court.

IT IS SO ORDERED.
DATED: June 26, 2013.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge