Jiang v. Porter et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to compel discovery from defendant N.M. [Doc. #104] is granted in part. IT IS FURTHER ORDERED that, within 14 days of the date of this order, defendant N.M. shall: (SEE ORDER FOR DETAILS). Signed by District Judge Carol E. Jackson on 5/26/16. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
REV. XIU HUI “JOSEPH” JIANG,
TONYA LEVETTE PORTER, et al.,
Case No. 4:15-CV-1008 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion, pursuant to Fed. R. Civ.
P. 37(a)(1), to compel defendant N.M. to answer interrogatories and produce
documents. Defendant N.M. has responded in opposition, and the issues are fully
Plaintiff first requests that the Court compel N.M. to produce a complete
privilege log for every document or communication that she has withheld based on
the assertion of a privilege. At issue are N.M.’s objections to Interrogatories 1, 5
and 12, and Requests for Production 2–7, 16 and 23.
Defendant has submitted
privilege logs in support of her assertions of attorney-client privilege, work product
protection, physician-patient privilege, psychotherapist-patient privilege, and rape
crisis center privilege.
See Def.’s Resps. to Requests 2 and 3 [Doc. #105-7].
Defendant asserts that all other assertions of privilege in other responses crossreference these privilege logs.
A party who claims the benefit of a privilege has the initial burden to
establish that the privilege applies. Rabushka ex rel. United States v. Crane Co.,
122 F.3d 559, 565 (8th Cir. 1997); Hollins v. Powell, 773 F.2d 191, 196 (8th Cir.
1985); Baranski v. United States, No. 4:11-CV-123 (CAS), 2014 WL 7335151, at
*5 (E.D. Mo. Dec. 19, 2014). Federal Rule of Civil Procedure 26(b)(5)(A) requires
that “[w]hen 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, communications, or tangible things not
produced or disclosed . . . in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the claim.” Courts have
consistently interpreted this requirement to mean that the party must produce a
document index or privilege log.
Jacobson v. Metro. St. Louis Sewer Dist., No.
4:14-CV-1333 (AGF), 2015 WL 5330428, at *3 (E.D. Mo. Sept. 14, 2015) (citing
Baranski, 2014 WL 7335151, at *6).
Plaintiff does not dispute the adequacy of N.M.’s assertions of privilege as to
(1) counseling records from Blash Counseling Associates in response to document
requests 2 and 16 and (2) communications withheld at DEF N.M. 0000113-114 in
response to Request 3.
Plaintiff also agrees that N.M. does not need to provide
additional information supporting her assertions of privilege with regard to (1)
communications between N.M. and her attorneys that occurred after June 25, 2015,
the date on which plaintiff filed his complaint and (b) materials covered by the
work-product doctrine that were created after June 25, 2015.
however, that he does not agree that the asserted privileges provide a basis for
withholding any other materials or information.
The Court is unable to discern what other materials or information plaintiff
assumes defendant is withholding that she has not described in the privilege logs
Defendant has expressly claimed that certain information is privileged
and has sufficiently described the nature of documents or communications not
produced or disclosed, as required by Rule 26(b)(5)(A).
The Court will deny
plaintiff’s request to compel defendant to produce additional privilege logs.
Objections to Document Requests
Next, plaintiff requests that the Court order N.M. to comply with Federal Rule
of Civil Procedure 34(b)(2)(C), which provides that “[a]n objection [to a request to
produce documents] must state whether any responsive materials are being
withheld on the basis of that objection.” Plaintiff complains that N.M. has failed to
state whether she is withholding any documents in response to document requests
1–8, 15–16, 21 and 23.
In her responses to these requests, defendant asserts
various privileges, but does not affirmatively state whether documents are being
withheld on the basis of those privileges. With regard to her objections to certain
discovery requests on relevance grounds, defendant argues that there should be no
need to specify whether she has possession of such documents.
Rule 34(b)(2)(C) does not distinguish between types of objections or provide
for implied assertions.
The Court will order defendant to comply with Rule
34(b)(2)(C) and affirmatively state whether any responsive materials are being
withheld on the basis of objections defendant N.M. has asserted to requests 1–8,
15–16, 21 and 23.
Rape Crisis Center Privilege
Plaintiff also requests that the Court overrule N.M.’s assertions of the rape
crisis center privilege in her objections to interrogatory 1 and document requests 2,
3, 7 and 23. These discovery requests seek information and materials regarding
N.M.’s interactions and communications with the SNAP defendants, with whom
plaintiff alleges that N.M. conspired to deprive plaintiff of his civil rights. Defendant
N.M. seeks to invoke this privilege on the basis of section 455.003 of the Missouri
Rule 501 of the Federal Rules of Evidence “authorizes federal courts to define
new privileges by interpreting ‘common law principles . . . in the light of reason and
experience.’” Jaffee v. Redmond, 518 U.S. 1, 8 (1996).
As the Supreme Court
has observed, “the common law is not immutable but flexible, and by its own
principles adapts itself to varying conditions.” Id. (quoting Funk v. United States,
290 U.S. 371, 383 (1933)). Rule 501, thus, directs federal courts to “continue the
evolutionary development of testimonial privileges.” Id. at 9 (quoting Trammel v.
United States, 445 U.S. 40, 47 (1980)). The recognition of a privilege based on a
confidential relationship should be determined on a case-by-case basis.
Id. at 8
(quoting S. Rep. No. 93-1277, at 7059 (1974)).
The Supreme Court also has recognized as a “fundamental maxim that the
public . . . has a right to every man’s evidence.” Id. at 9 (quoting United States v.
Bryan, 339 U.S. 323, 331 (1950)).
When federal courts examine claims of
exemption, “we start with the primary assumption that there is a general duty to
give what testimony one is capable of giving, and that any exemptions which may
exist are distinctly exceptional, being so many derogations from a positive general
rule.” Id. (quoting Bryan, 339 U.S. at 331); see United States v. Nixon, 418 U.S.
683, 710 (1974) (“[T]hese exceptions to the demand for every man’s evidence are
not lightly created nor expansively construed, for they are in derogation of the
search for truth.”).
“Exceptions from the general rule disfavoring testimonial
privileges may be justified, however, by a ‘public good transcending the normally
predominant principle of utilizing all rational means for ascertaining truth.’” Jaffee,
518 U.S. at 9 (quoting Trammel, 445 U.S. at 50).
A party seeking judicial
recognition of a new evidentiary privilege under Rule 501 must “demonstrate with a
high degree of clarity and certainty that the proposed privilege will effectively
advance a public good.” In re Sealed Case, 148 F.3d 1073, 1076 (D.C. Cir. 1998);
see In re Grand Jury Investigation, 918 F.2d. 374, 383 (3d Cir. 1990) (stating that
federal courts should exercise their narrow authority under Rule 501 “only after
careful consideration in the face of a strong showing of need for the privilege”).
Defendant N.M. has asserted a rape crisis center privilege in response to
discovery requests, but has not demonstrated that adopting the privilege here will
effectively advance the public good or otherwise made a strong showing of need for
Defendant simply asserts as a general proposition that “[p]ublic
policy strongly favors the recognition of the Rape Crisis Center Privilege in this
case.” Def. N.M.’s Memo. in Opp. at 3 [Doc. #111]. This blanket assertion does
not “overcome the significant burden of establishing that ‘permitting a refusal to
testify or excluding relevant evidence has a public good transcending the normally
predominant principle of utilizing all rational means for ascertaining truth.’”
Carman v. McDonnell Douglas Corp., 114 F.3d 790, 793 (1997) (quoting Trammel,
445 U.S. at 50).
Accordingly, the Court declines defendant N.M.’s invitation to
recognize the rape crisis center privilege here.
Even if the Court were to recognize the rape crisis center privilege in this
case, defendant has not established her entitlement to invoke the privilege. The
scope of the privilege cited in the plain text of Mo. Rev. Stat. § 455.003 is narrow.
The statute provides that “[a]ny person employed by or volunteering services to a
rape crisis center for victims of sexual assault shall be incompetent to testify
concerning any confidential information” directly related to the advocacy services
provided to individuals at the center. Mo. Rev. Stat. § 455.003.2. This language
only pertains to the competency of an employee or volunteer of a rape crisis center
to testify. The remaining sections of the statute define the term “rape crisis center”
and describe the confidentiality requirements of such a center. Defendant N.M. is
not an employee or volunteer of SNAP. Thus, any privilege created by the statute
is inapplicable in this case. See Baldrige v. Shapiro, 455 U.S. 345, 360 (1982) (“A
statute granting a privilege is to be strictly construed so as ‘to avoid a construction
that would suppress otherwise competent evidence.’” (quoting St. Regis Paper Co.
v. United States, 368 U.S. 208, 218 (1961))); PepsiCo, Inc. v. Baird, Kurtz &
Dobson LLP, 305 F.3d 813, 816 (8th Cir. 2002) (“The Supreme Court has directed
that courts must narrowly construe privileges, and statutes creating them, and
must avoid suppressing probative evidence.”).
Moreover, defendant has not provided an adequate factual basis for asserting
the purported rape crisis center privilege as a basis for withholding the documents
“[T]he part[y] asserting privilege as a bar to discovery must carry the
initial burden of proving the factual basis establishing the applicability of the
privilege.” St. Paul Reins. Co., Ltd. v. Commercial Fin. Corp., 197 F.R.D. 620, 627
(N.D. Iowa 2000). N.M. has not provided sufficient information to allow plaintiff or
the Court to determine whether the information or materials she is withholding
“would identify individuals served by the center,” other than the minor whose
identity is already disclosed, or would constitute “information or records that are
directly related to the advocacy services provided to such individuals.”
Stat. § 455.003.1.
Therefore, N.M. is required to answer interrogatory 1 and produce documents
responsive to requests 2, 3, 7 and 23 that she has withheld on the basis of the rape
crisis center privilege.
Objection to Request No. 21
In document request 21, plaintiff seeks “[a]ll documents reflecting or relating
to any divorce proceeding between [N.M.] and A.M., including but not limited to any
Communications between [N.M.] and A.M. that relate to such divorce proceedings
in any way.”
Plaintiff states that he has obtained only a partial
record of the divorce proceedings between N.M. and A.M.
Specifically, the state
court’s second judgment in modification of the judgment of dissolution of the
marriage between N.M. and A.M., awarding N.M. sole custody of the minor, refers
to numerous exhibits, such as the minor’s counseling records, school records, and
depositions of N.M. and A.M.
Defendant N.M. objected on the
basis of relevancy.
Defendant first asserts that because A.M. is not a defendant in this case,
documents related to the divorce proceedings would fail to make any material fact
more or less probable with respect to plaintiff’s civil rights conspiracy claim.
establish a conspiracy under 42 U.S.C. § 1985(3), plaintiff must prove:
existence of a conspiracy; (2) that the purpose of the conspiracy was to deprive
him of his civil rights; (3) an act in furtherance of the conspiracy;  (4) injury” . . .
and “that the conspiracy is fueled by some ‘class-based, invidiously discriminatory
McDonald v. City of Saint Paul, 679 F.3d 698, 706 (8th Cir. 2012)
(quoting Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) and Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 268 (1993)).
“conspiracy” requires the existence of an agreement between two or more persons,
but does not require that all co-conspirators be joined as defendants in an action to
find another co-conspirator liable. See U.S. Indus., Inc. v. Touche Ross & Co., 854
F.2d 1223, 1251 (10th Cir. 1988) (“It is axiomatic that since coconspirators are
jointly and severally liable for all damages caused by a conspiracy, a private
plaintiff need not sue all the conspirators, but may choose to proceed against any
one or more of them.” (internal quotations, citations and footnote omitted));
Chicarelli v. Plymouth Garden Apts., 551 F. Supp. 532, 539 (E.D. Pa. 1982) (“If
such a conspiracy is shown, the private parties are not absolved of liability because
one or all of the co-conspirators who are state actors or officials are immune or
because one or all of the state co-conspirators are not joined in the case, or are
dismissed from the case.” (citing Dennis v. Sparks, 449 U.S. 24, 27–30 (1980))).
As such, A.M.’s absence as a party to this litigation does not affect N.M.’s potential
liability for engaging in a conspiracy or the relevance of the materials in dispute
with respect to plaintiff’s civil rights conspiracy claim.
Defendant also argues that her minor son’s mental health and emotional
status are not at issue in this case. The state court judgment to which plaintiff cites
includes court findings that the conduct of both N.M. and A.M. affected the mental
health of their son. P_00637–38 [Doc. #105-8]. Plaintiff argues that the minor’s
psychological trauma potentially explains his false allegations against plaintiff and
that A.M.’s opposition to enrolling the minor in a Catholic school may have
motivated A.M. to pressure the minor into making false accusations against
Plaintiff contends that the truth or falsity of the minor’s accusations
against plaintiff is essential to plaintiff’s claims of defamation and a civil rights
Because the rules of discovery are broad, the burden is typically on the party
resisting discovery to explain why discovery should be limited. Jo Ann Howard &
Assocs., P.C. v. Cassity, 303 F.R.D. 539, 542 (E.D. Mo. 2014). That is, after the
proponent of discovery makes a threshold showing of relevance, the party opposing
a motion to compel has the burden of showing its objections are valid by providing
specific explanations or factual support as to how each discovery request is
improper. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993); St. Paul
Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511–12 (N.D. Iowa
The party resisting discovery “must demonstrate to the court that the
requested documents either do not come within the broad scope of relevance
defined pursuant to Fed. R. Civ. P. 26(b)(1) or else are of such marginal relevance
that the potential harm occasioned by discovery would outweigh the ordinary
presumption in favor of broad disclosure.”
St. Paul Reinsurance, 198 F.R.D. at
511–12 (quotation marks and citation omitted).
Plaintiff has made a threshold showing of relevance as to the documents
sought in request 21, and defendant has failed to explain why discovery related to
this request should be limited. Accordingly, defendant N.M. is required to produce
all documents responsive to request 21.
Missouri Department of Social Services Reports
Plaintiff also seeks to compel defendant N.M. to produce two reports from the
Missouri Department of Social Services (DSS) regarding allegations of abuse the
minor made against A.M. in 2013 and against a non-party in 2004 in response to
plaintiff’s document request 13. [Doc. ##104-3, 105-7]. The relevance of the DSS
reports is not disputed. According to defendant, however, the documents contain a
stamped notice that they are confidential and unauthorized dissemination is a
misdemeanor under state law.
See Mo. Rev. Stat. § 210.150.
stated that she is willing to make these reports available to plaintiff upon court
order. Because there is no apparent basis under federal law to allow defendant to
withhold these reports, the Court will compel N.M. to produce the reports in
dispute. See Farley v. Farley, 952 F. Supp. 1232, 1242 (M.D. Tenn. 1997) (“[T]he
statutory and administrative scheme under Tennessee law ensuring only limited
disclosure of child abuse files must yield to a supervening interest in their
production and use in federal civil rights actions.”).
Objection to Interrogatory No. 12
Next, plaintiff seeks to compel defendant N.M. to answer interrogatory 12 by
identifying all individuals who have provided “counseling, treatment, examination,
or other form of service for physical, mental, emotional, and/or psychological health
to Minor from the time of Minor’s birth to the present.” [Doc. #105-6]. Plaintiff
states that he is seeking to identify potential witnesses who can provide information
about the minor’s mental health and his tendency to make false accusations of
Additionally, plaintiff states that the disclosure of these individuals will
assist him in determining whether and to what extent N.M. has waived claims of
privilege by disclosing the minor’s counseling records to the St. Louis Circuit
Attorney’s Office during the state criminal proceedings against plaintiff.
objected to this interrogatory on the basis of physician-patient privilege and
Defendant argues that she is entitled to invoke the psychotherapist-
patient privilege as set forth in Jaffee v. Redmond, 518 U.S. 1 (1996).
In Jaffee, the Supreme Court held 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. Conversations and notes taken during counseling sessions
with licensed social workers constitute “confidential communications” within this
privilege. Id. Although the substance of communications between a patient and his
or her licensed psychotherapist is privileged under Jaffee, the facts regarding the
occurrence of psychotherapy, such as the identities of the providers or the dates of
treatment, are not privileged and thus are subject to disclosure. E.g., Korff v. City
of Phoenix, No. CV-13-02317-PHX-ESW, 2015 WL 4065070, at *2 (D. Ariz. July 2,
2015); Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 547, 551 (S.D. Ohio
2014); Howe v. Town of North Andover, 784 F. Supp. 2d 24, 34 (D. Mass. 2011).
Plaintiff only seeks to compel N.M. to disclose the identities of the individuals
described in interrogatory 12; the interrogatory does not require disclosure of the
content of any confidential communications. The identities of psychotherapists that
have treated the minor are not privileged under Jaffee. The defendant is required
to answer interrogatory 12.
communications between N.M. and A.M. that relate to their minor son. In response
to the request, N.M. produced a portion of a text message chain with A.M. relating
to an investigation involving the minor.
Defendant states that
she will endeavor to find more complete copies of the subject text messages.
Because defendant has no objection to providing the entire text messages, she will
be ordered to produce them.
Response to Interrogatory No. 15
Interrogatory 15 asks that N.M. provide A.M.’s “contact information,” as
defined in the interrogatory definitions, including current residence and work
addresses, telephone numbers, and email addresses. In response, N.M. provided
only A.M.’s email address, a former telephone number, and the names of two of
A.M.’s former employers. In her memorandum in opposition to the instant motion,
N.M. states that she has provided a complete response to the request, to the best
of her knowledge. Absent a showing that N.M. has withheld information responsive
to the interrogatory, the Court will not order any further answer.
defendant is reminded of her duty to supplement in accordance with Fed. R. Civ. P.
For the reasons discussed above,
IT IS HEREBY ORDERED that plaintiff’s motion to compel discovery from
defendant N.M. [Doc. #104] is granted in part.
IT IS FURTHER ORDERED that, within 14 days of the date of this order,
defendant N.M. shall:
state whether any responsive materials are being withheld on the
basis of objections asserted to requests for production of documents in
compliance with Fed. R. Civ. P. 34(b)(2)(C);
produce all documents and information she has withheld on the basis
of the rape crisis center privilege;
produce all documents she has withheld on the basis of her relevance
objection to Request No. 21;
produce the reports cited in response to Request No. 13;
disclose the identities of all individuals responsive to Interrogatory No.
disclose the entirety of the text message chain that includes the
message partially reproduced in Plaintiff’s Exhibit 15 filed under seal.
IT IS FURTHER ORDERED that the plaintiff’s motion to compel is denied
as to Interrogatory No. 15 and as to the production of additional privilege logs.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 26th day of May, 2016.
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