Zukley v. Schererville Town of et al
OPINION AND ORDER granting 57 Motion to Compel. The Court ORDERS Defendants to produce the sought after documents by 12/16/2016. The Court DENIES Defendants request contained in their Response to Plaintiffs Motion to Compel and Cross-Motion for Protective Order. Signed by Magistrate Judge John E Martin on 11/30/16. (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
TOWN OF SHERERVILLE, et al.,
CAUSE NO. 2:14-CV-347-JVB-JEM
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel [DE 57], filed on July 6,
2016. Plaintiff asks the Court to compel Defendants to provide certain documents in response to
Plaintiff’s discovery requests. On July 15, 2016, Defendants filed a response and moved for a
protective order [DE 65], and on July 23, 2016, Plaintiff filed her reply [DE 68].
Plaintiff’s Amended Complaint [DE 29] alleges multiple claims against the Town of
Schererville, the Shererville Police Department chief and deputy chief, and two police commanders.
Relevant here is Plaintiff’s allegation that she was discriminated against because of her gender
during her employment with the Police Department. Specifically, Plaintiff alleges that, in December
2013, her supervisors placed her on administrative leave after she made a comment about killing
herself. Plaintiff contends that male officers in the Police Department have made similar comments
and were not placed on administrative leave or declared unfit for duty.
On February 4, 2016, Plaintiff served Defendants with her Fourth Request for Production
of Documents. Two of the requests in her Fourth Request for Production are at issue here. Plaintiff’s
Request 44 sought “[a]ll documents regarding ‘return to work’ or psychological examinations,
conducted during or before employment as part of the application process, for Officers Djukic,
Myszak and Aravanitis.” Plaintiff’s Request 49 sought “[a]ll documents related to administrative
leave, psychological evaluation and fitness for duty examination of Officer Myszak in January
2016.” Defendants have refused to turn over the requested psychological evaluations. Plaintiff now
moves the Court to compel production of those documents.
A party may seek an order to compel discovery when an opposing party fails to respond to
discovery requests or provides evasive or incomplete responses. See Fed. R. Civ. P. 37(a). A party
objecting to the discovery request bears the burden of showing why the request is improper.
McGrath v. Everest Nat’l Ins. Co., 625 F. Supp. 2d 660, 670 (N.D. Ind. 2008). The Court has broad
discretion when deciding discovery matters. Thermal Design, Inc. v. Am. Soc’y of Heating,
Refrigerating & Air-Conditioning Eng’rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); Rennie v. Dalton,
3 F.3d 1100, 1110 (7th Cir. 1993).
Plaintiff claims she was discriminated against on the basis of her gender, her theory being
that Defendants treated her differently than male officers who had made similar “jokes” or
comments about suicide in the past. To support her discrimination claim, Plaintiff seeks the preemployment psychological evaluations of Djukic, Myszak, and Aravanitis, who are all men. Plaintiff
alleges these officers also made on-the-job comments about suicide but have never been placed on
administrative leave or declared unfit for duty based on those comments.
Plaintiff wishes to compare the officers’ backgrounds to her own. Plaintiff’s pre-employment
background check revealed that she had tried to kill herself in 1989. As a result, Plaintiff’s
supervisors were aware of the prior suicide attempt at the time they placed her on administrative
leave for making comments about suicide. At least two of these supervisors have testified that the
previous suicide attempt factored into their decision to place Plaintiff on leave.
If one of the officers who made suicide-related comments also had a history of suicide
attempts like Plaintiff but was not placed on administrative leave, Plaintiff will argue that she was
treated differently than the male officers. Put simply, Plaintiff hopes to use Djukic, Myszak, and
Aravanitis to demonstrate that her supervisors based their decision to place her on leave on a
pretextual rather than a legitimate basis.
Before reaching the substantive merits of Plaintiff’s Motion, the Court must consider
Plaintiff’s assertion that Defendants waived any of the objections before the Court because
Defendants failed to timely produce a privilege log. Plaintiff’s Fourth Request for Production of
Documents was served on February 4, 2016. The Fourth Request for Production included an
interrogatory asking that Defendants identify any documents not produced in response to the Fourth
Request for Production based on an objection.
Defendants responded to the Fourth Request for Production on March 11, 2016. Defendants
did not object to the requests at issue before the Court, and in response to the related interrogatory
they explicitly stated that they were not withholding any documents based on an objection. But
Defendants did not turn over all the reports Plaintiff asked for in Requests 44 and 49, namely the
psychological reports for the male officers.
By May 13, 2016, in response to an email from Plaintiff’s counsel’s asking about the missing
reports, Defendants’ counsel—for the first time—objected to the requested production on relevance
and “medical confidentiality” grounds. Defendants sent a supplemental response on June 6, 2016,
reiterating their objection on relevance grounds as to Officer Aravanitis. Finally, on June 21, 2016,
Defendants’ counsel sent Plaintiff’s counsel a letter detailing their relevance and privilege
Defendants have not provided any convincing justification for their delay in identifying their
objection to Plaintiff’s requests for production. They argue that their May 13 email to Plaintiff’s
counsel was a timely objection, because until that point they were unaware that Plaintiff was
“seeking to discover the other officers’ pre-employment psychological evaluations.” But Plaintiff’s
Request 44 explicitly asked for “all documents regarding . . . psychological examinations, conducted
during or before employment as part of the application process, for Officers Djukic, Myszak and
Aravanitis.” (emphasis added).
Defendants concede their May 13, 2016, email to Plaintiff’s counsel—sent over two months
after Defendants responded to the Fourth Request to Production—was the first time they objected
to turning over the pre-employment psychological evaluations. So, the question is whether this delay
constitutes a waiver preventing Defendants from now asserting their privilege and relevance
Federal Rule of Civil Procedure 26(b)(5) provides, “When a party withholds information
otherwise discoverable by claiming that the information is privileged . . . the party must . . . (i)
expressly make the claim; and (ii) describe the nature of the documents . . . in a manner that . . . will
enable other parties to assess the claim.” However, courts are reluctant to order disclosure of
privileged documents as a sanction for failure to provide a proper privilege log. Sann v. Mastrian,
No. 1:08-CV-1182, 2010 WL 4923900, at *1 (S.D. Ind. Nov. 29, 2010). And the Seventh Circuit
has said that parties should not be sanctioned with a blanket waiver without a showing of bad faith.
Am. Nat. Bank and Trust Co. of Chi. v. Equitable Life Assur. Soc. of U.S., 406 F.3d 867, 879.
Here, Defendants delayed in objecting to Plaintiff’s requests for over two months, and they
haven’t provided the Court with a good reason for that delay. However, there is no evidence before
the Court that Defendants acted in bad faith. Given that lack of bad faith and the reluctance of courts
to force disclosure of potentially privileged documents, the Court does not find that Defendants have
waived their privilege and relevance arguments.
As mentioned above, Defendants object to Plaintiff’s requests for pre-employment
psychological evaluations on the ground that they are irrelevant to Plaintiff’s claims. In the context
of discovery, relevance is construed broadly and includes “any matter that bears on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be in the case.”
Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (quoting Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
Here, Defendants create an artificial distinction. They argue that Plaintiff’s suicide attempt
was revealed during her background investigation rather than during her psychological evaluation,
and thus the male officers’ psychological evaluations are irrelevant. But in this case, the location of
the information sought does not affect its relevance. Plaintiff wants to know if, like her, these
officers had a documented history of suicide attempts and whether their supervisors were aware of
that history. The existence—rather than the location—of documented suicide attempts would assist
Plaintiff in establishing that she was treated differently than male officers.
Defendants represent that no supervisor has testified to knowing about any history of suicide
for Djukic, Myszak, and Aravanitis. But the supervisors’ testimony does not dictate the scope of
permissible discovery. To the contrary, if the reports contain evidence that one of these male officers
has a history of suicide attempts, yet that officer’s supervisors claimed ignorance of that information,
Plaintiff might use the report to discredit their testimony. Accordingly, the requested discovery is
“relevant to [Plaintiff’s] claim” and within the broad scope of permissible discovery. See Fed. R.
Civ. P. 26(b)(1) (“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.”).
Defendants also argue that the pre-employment psychological reports fall under the
“physician-patient privilege” and that turning the reports over would violate the privacy interests
of Djukic, Myszak, and Aravanitis.
Federal common law determines the scope of privileges available in cases involving a
question of federal law. Fed. R. Evid. 501. While federal courts do not recognize a general
physician-patient privilege, Patterson v. Caterpillar, Inc., 70 F.3d 503, 506 (7th Cir. 1995), federal
common law does recognize the psychotherapist-patient privilege. Jaffee v. Redmond, 518 U.S. 1,
15 (1996) (“[W]e hold 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.”). The Jaffee Court’s holding was limited to “confidential
communications.” Jaffee, 518 U.S. at 15; Tesser v. Board of Educ., 154 F. Supp. 2d 388, 392
(E.D.N.Y. 2001) (“Thus, because only confidential communications made to psychotherapists may
be privileged, this Court must first determine whether the communications at issue are
Nothing suggests that the psychotherapists who examined the officers were not qualified,
so the psychotherapist-patient privilege could apply here. However, Plaintiff argues that the
evaluations do not qualify under the privilege because they were not “conducted for the purposes
of diagnosis or treatment.” Instead, Plaintiff contends, the pre-employment evaluations were
conducted as part of the application process and the evaluations were shared with the Police
Department, which means they are not “confidential” to warrant protection under the
To assert that the pre-employment psychological evaluations fall within the psychotherapistpatient privilege, Defendants cite Carver v. City of Trenton, 192 F.R.D. 154 (D.N.J. 2000). In
Carver, a group of police officers alleged that the police department they worked for discriminated
against them on the basis of race. 192 F.R.D. at 155. During discovery, the plaintiffs sought
psychological evaluations of non-party police officers “to contrast the treatment of other officers
who were referred for fitness[-for-duty] exams.” Id. at 156.
The Carver court found that the psychological reports were protected by the psychotherapistpatient privilege. Id. at 162. As Defendants highlight, the court made that finding because “the
psychological reports of the officers [were] kept completely confidential” and that the examining
psychologist did “not disclose any confidential information but merely [gave] a ‘Pass’ or ‘Fail’
recommendation of fitness for duty to the police department.” Id. at 162.
But Carver does not support Defendants’ position. By all appearances the statements made
by Djukic, Myszak, and Aravanitis did not carry a similar expectation of privacy. Defendants have
not argued that the Police Department received only a “Pass” or “Fail” recommendation from the
psychological examiners, and they do not assert that the examiners kept any confidential information
from the Police Department. Instead, Defendants acknowledge that the Police Department received
and maintained their own records of the pre-employment psychological examinations.
Rather, this case is similar to Scott v. Edinburg, 101 F. Supp. 2d 1017 (N.D. Ill. 2000). There,
the court held that a police officer’s psychological evaluations, which were conducted after the
officer was involved in a shooting, were not privileged. The court noted that the officer was “fully
aware that what he said would not be confidential, and would be shared with others,” and as a the
court result found that the party asserting the psychotherapist-patient privilege had “failed to
establish the expectation of confidentiality that is the prerequisite for the existence of the
psychotherapist-patient privilege.” Scott, 101 F. Supp. 2d at 1020 (citation omitted).
Here, Defendants have not provided any information showing that the officers expected the
contents of the evaluations to remain private. Indeed, the facts suggest otherwise, as the evaluations
were part of the officers’ pre-employment screening and the Police Department received and kept
copies of the evaluations. See Tesser, 154 F. Supp. 2d at 392 (“[C]ourts have ordinarily addressed
[the] issue [of confidentiality] in the context of consultations made in the course of employment and
have held that communications with a psychotherapist during consultations required as a condition
of employment are not privileged because there is no expectation of privacy.”) (collecting cases).
Accordingly, Defendants have failed to meet their burden to show that the psychological reports fall
within the psychotherapist-patient privilege. McGrath v. Everest Nat. Ins. Co., 625 F. Supp. 2d 660,
670 (N.D. Ind. 2008) (“The burden rests upon the objecting party to show why a particular discovery
request is improper.”) (quotations and citations omitted).
Accordingly, the Court GRANTS the Motion to Compel [DE 57] and ORDERS Defendants
to produce the sought after documents by December 16, 2016.
Defendants also moved for a protective order under Federal Rule of Civil Procedure 26(c).
However, Federal Rule of Civil Procedure 37(a)(5)(B) states, “If the motion [to compel] is denied,
the court may issue any protective order authorized under 26(c).” Because the Court is granting
Plaintiff’s motion to compel, the Court DENIES Defendants’ request contained in their Response
to Plaintiff’s Motion to Compel and Cross-Motion for Protective Order [DE 65].
The Court also notes that a Protective Order [DE 50] is already in place covering the
psychological evaluations. Under the current Protective Order, Defendants may designate the
psychological evaluations as “Protected Information.” The terms of the Protective Order explicitly
forbid Plaintiff from sharing that information with anyone other than “Qualified Persons,” the
definition of which includes the parties and counsel. In addition to the Protective Order already in
place, the parties are free to agree to use pseudonyms for the officers to provide additional
protections, if they so choose. However, for the reasons discussed above, the Court will not order
substantive redactions of the reports.
The Court finds that Defendants’ position, though incorrect, was “substantially justified”
under Federal Rule of Civil Procedure 37(a)(5)(A)(ii), and will not order Defendants or their
attorney to pay Plaintiff’s “reasonable expenses incurred in making the” Motion to Compel. Fed.
R. Civ. P. 37(a)(5)(A). Plaintiff complains of other areas in discovery where she feels Defendants
have violated the Rules of Civil Procedure or the Northern District of Indiana. But because Plaintiff
has not moved to compel discovery beyond the psychological evaluations, the Court does not
address those arguments.
SO ORDERED this 30th day of November, 2016.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
All counsel of record
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