Morgan v. Spivey, et al
ORDER - Defendants' joint motion to compel [DE99] is DENIED and plaintiff's motion for protective order [DE105] is GRANTED. Defendants request for attorney's fees is DENIED. Counsel is reminded to read the order in its entirety for critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 12/8/2017. (Collins, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
MICHAEL J. MORGAN,
RICKY J. SPIVEY, in his individual and
official capacities as a Wake County
Sheriff’s Deputy, CASEY L. MILLER, in
his individual and official capacities as a
Wake County Sheriff’s Deputy, JOSHUA
K. LEGAN, in his individual and official
capacities as a Wake County Sheriff’s
Deputy, DONNIE HARRISON, in his
official capacity as Sheriff of Wake
County, North Carolina, THE OHIO
CASUALTY INSURANCE COMPANY,
individually, and as a subsequent
subsidiary of LIBERTY MUTUAL
INSURANCE COMPANY, as SURETY,
This matter is before the court on joint motion to compel filed by defendants Ricky J. Spivey
(“Spivey”), Casey L. Miller (“Miller”), Joshua K. Legan (“Legan”), and Donnie Harrison
(“Harrison”) (collectively, “Sheriff Defendants”) and Ohio Casualty Insurance Company (“Ohio
Casualty”) (DE 99) together with plaintiff’s motion for protective order (DE 105). The issues raised
have been fully briefed and are ripe for adjudication. For the following reasons, defendants’ joint
motion to compel is denied and plaintiff’s motion for protective order is granted.
The court repeats here with some modification as pertinent to the instant motions the facts
as stated in the court’s September 29, 2017, order. Plaintiff commenced this action against Sheriff
Defendants and Wake County, North Carolina on June 10, 2016, alleging various claims against the
parties including: negligence, gross negligence, violation of civil rights pursuant to 42 U.S.C. §1983,
suit on sheriff’s bond, assault and battery, false imprisonment, malicious prosecution, and civil
conspiracy. On September 6, 2016, defendant Wake County, North Carolina voluntarily was
dismissed. On September 15, 2016, Sheriff Defendants filed a motion for partial judgment on the
pleadings, which plaintiff responded to on October 6, 2016, also filing a motion to amend complaint,
in order to join Ohio Casualty. On November 14, 2016, this court granted plaintiff’s motion to
amend and denied as moot Sheriff Defendants’ motion for partial judgment on the pleadings. On
November 23, 2016, plaintiff filed its amended complaint.
On January 20, 2017, defendant Ohio Casualty filed a motion to dismiss. On February 15,
2017, Sheriff Defendants filed a motion for partial judgment. On September 29, 2017, the court
granted in part and denied in part both Ohio Casualty’s motion to dismiss and Sheriff Defendants’
motion for partial judgment, finding the following claims to remain:
1) claims against defendants Spivey, Miller, and Legan regarding violation of civil
rights pursuant to 42 U.S.C. § 1983;
2) claims against Ohio Casualty to recover on sheriff’s bond for any breaches of the
bond accruing on or after October 6, 2013;
3) negligence and gross negligence claims against defendants Spivey, Miller, and
Legan, in their individual capacity, except regarding their failure to possess the
necessary training and experience to serve as deputies;
4) state-law assault and battery claims against defendants Spivey and Miller in their
5) false imprisonment claims against defendants Spivey, Miller, and Legan, in their
official and individual capacities;
6) malicious prosecution claims against defendants Spivey, Miller, and Legan; and
7) civil conspiracy.
Previously plaintiff and defendants Spivey, Miller, and Legan filed consent motions for
protective orders regarding production of plaintiff’s tax returns and production of defendants Spivey,
Miller, and Legan’s personnel records. The court granted both motions on August 29, 2017. On
October 16, 2017, defendants filed the instant joint motion to compel, related to plaintiff’s treatment
at Western Wake Treatment Center, to which plaintiff responded in opposition including the instant
motion for protective order on November 20, 2017. Defendants filed their response to plaintiff’s
motion for protective order on November 29, 2017. Discovery closes on January 29, 2018.
STATEMENT OF THE FACTS
The undisputed facts pertinent to the instant motions may be summarized as follows. On
July 5, 2013, an altercation occurred between plaintiff and defendants Spivey, Miller, and Legan
which resulted in plaintiff being shot twice. Following the shooting, plaintiff was prosecuted on
various charges including multiple assault charges. On June 5, 2014, plaintiff was found not guilty
of all charges that had not been previously dismissed. Plaintiff filed this suit on June 10, 2016,
alleging “physical, emotional, and financial injury,” including “severe physical pain, mental
suffering, anguish, shock, [and] fright” as a result of the July 5, 2013 altercation. (Am. Compl. (DE
61) ¶ 203). In discovery, defendants sought in part information about medical treatment and mental
health counseling plaintiff has received following the July 5, 2013 altercation, including treatment
and counseling received from Western Wake Treatment Center, a mental health counseling and
Standard of Review
Federal Rule of Civil Procedure 37 provides that when a party fails to respond to discovery,
the party seeking discovery can move for an order compelling production. Fed. R. Civ. P.
37(a)(3)(B). When addressing a motion to compel discovery, the trial court holds broad discretion.
See LaRouche v. Nat’l Broadcasting Co., Inc., 780 F.2d 1134, 1139 (4th Cir. 1986) (“A motion to
compel discovery is addressed to the sound discretion of the district court.”); see also Lone Star
Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995) (“This Court
affords a district court substantial discretion in managing discovery and reviews the denial or
granting of a motion to compel discovery for abuse of discretion.”).
Defendants seek a court order compelling plaintiff to respond to questions concerning
plaintiff’s treatment received at Western Wake Treatment Center and directing the production of
plaintiff’s Western Wake Treatment Center medical records over plaintiff’s objections. (DE 100
at 3). Specifically, defendants request the court to:
1. Compel plaintiff to respond to Sheriff Defendants’ first set of interrogatories,
which includes inquires about medical attention and mental health counseling, and
related incurred expenses, sought for any of the injuries suffered as a result of the
July 5, 2013 incident or thereafter;
2. Compel plaintiff to respond to Sheriff Defendants’ requests for production of
documents, request number three, which is as follows:
Plaintiff testified in deposition that he has sought treatment from Western Wake Treatment Center since the
treatment center opened in October 2015. (DE 99-3 at 10).
All narrative medical reports, hospital records, and other health care
reports which reflect medical treatment or mental health care
counseling rendered to you as a result of the Arrest Incident or Trial
3. Compel plaintiff to respond to Ohio Casualty’s second request for production of
documents, which includes the following:
All medical records and bills of any type whatsoever, statements,
electronic data, charts, notes, records, reports, treatment or
observation of any mental condition, alcoholism, substance abuse,
narcotic additions or disorders of any kind and summaries of all
medical treatment rendered to plaintiff at Western Wake Treatment
4. Strike objections contained in plaintiff’s responses to Ohio Casualty’s request for
production of documents which includes plaintiff’s objections that the information
sought from Western Wake Treatment Center is privileged, not proportional,
protected by the Health Insurance Portability and Accountability Act (“HIPPA”), and
not relevant in that plaintiff “is not seeking any damages for the fact that he has
received methadone treatments, and he will not be asking the jury to award any
compensation for the treatment he received at Western Wake Treatment Center.”
(DE 99-6 at 3);
5. Compel plaintiff to appear for a second deposition; and
6. Direct Western Wake Treatment Center to produce plaintiff’s records.
(See DE 99-1, DE 99-6, DE 100 at 1-2).
“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.” Fed. R. Civ. P. 26(b)(1).
“Information within this scope of discovery need not be admissible in evidence to be discoverable.”
Id. “On motion or on its own, the court must limit the frequency or extent of discovery . . . 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). When challenged, as here, “[a] party claiming that a request is important to
resolve [certain] issues should be able to explain the ways in which the underlying information bears
on the issues as that party understands them.” Fed. R. Civ. P. 26, Advisory Committee Notes (2015
Relevance in the context of Rule 26 “has been construed broadly to encompass 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.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). “The court
should and ordinarily does interpret ‘relevant’ very broadly to mean matter that is relevant to
anything that is or may become an issue in the litigation.” Id. at 351 n. 12 (quotations omitted).2
Here, plaintiff alleges “physical, emotional, and financial injury,” including “severe physical
pain, mental suffering, anguish, shock, [and] fright” as a result of the July 5, 2013 altercation. (Am.
Compl. (DE 61) ¶ 203). Additionally, plaintiff testified that he is receiving treatment from Western
Wake Treatment Center for the physical and mental injuries he alleges he suffered as a result of the
July 5, 2013 incident. (See pl.’s dep. (99-3) at 16-17, 23-24). Therefore, plaintiff has put his
medical, physical, and psychological condition, including his substance abuse treatment, at issue.
Plaintiff argues that the information sought is protected in that federal law 1) recognizes a
psychotherapist-patient privilege and 2) limits the disclosure of substance abuse treatment
information. The court will address each argument in turn below.
Psychotherapist-Patient Privilege under Federal Law
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
The 2015 amendment to Rule 26 changed the language in subsection (b)(1) in several ways described and
set forth in the Advisory Committee Notes to the 2015 amendment. For example, the amendment “delete[d] the former
provision authorizing the court, for good cause, to order discovery on any matter relevant to the subject matter involved
in the action.” Fed. R. Civ. P. 26, Advisory Committee Notes (2015 amend.). While this deletion could be construed
as narrowing what qualifies as “relevant,” the Advisory Committee Notes suggest otherwise, “given a proper
understanding of what is relevant to a claim or defense.” Id. As such, the court continues to rely upon case law set forth
in the text predating the 2015 amendment to the rule, with respect to the meaning of the term “relevant.”
experience” unless it is contrary to the “United States Constitution,” a “federal statute,” or the “rules
prescribed by the Supreme Court.”3 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. Jaffee v. Redmond, 518 U.S. 1, 7 (1996). As stated by the Court, the privilege “serves the
public interest by facilitating the provision of appropriate treatment for individuals suffering the
effects of a mental or emotional problem” and “[t]he mental health of our citizenry, no less than its
physical health, is a public good of transcendent importance.” Id. at 11. Under Jaffee, a party
asserting a psychotherapist-patient privilege must show that the allegedly privileged
communications were made in confidence, between a licensed psychiatrist, psychologist, or social
worker and his or her patient, in the course of diagnosis or treatment. Id. at 15.4
The Fourth Circuit, following Jaffee, has recognized this privilege and has stated that “[a]
patient may waive the psychotherapist-patient privilege by knowingly and voluntarily relinquishing
it.” United States v. Bolander, 722 F.3d 199, 221-23 (4th Cir. 2013) (holding that federal inmate
waived any psychotherapist-patient privilege when he willing provided the sought materials to his
own expert and did not properly assert privilege); see also United States v. Lara, 850 F.3d 686, 691
(4th Cir. 2017) (defendant waived psychotherapist-patient privilege that may have applied to
incriminating statements he made while participating in sex offender treatment program by signing
waiver of treatment program confidentiality). The court in Bolander stated that a waiver may occur
The rule continues: “However, in civil actions and proceedings, with respect to an element of a claim or
defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or
political subdivision thereof shall be determined in accordance with State law.” Fed. R. Evid. 501. However, this case
involves a federal question together with pendent state law claims. The Fourth Circuit has stated “[w]e agree with our
sister circuits that in a case involving both federal and state law claims, the federal law of privilege applies.” Virmani
v. Novant Health Inc., 259 F.3d 284, 287 n. 3 (4th Cir. 2001). Thus, because this court’s jurisdiction is based on a
federal question, Federal Rule of Evidence 501 is the applicable law of privilege in this case.
In a footnote, the Court noted that the patient may waive this privilege, like other testimonial privileges, but
did not further address the issue of waiver. Id. at 15 n. 14.
when 1) “when the substance of therapy sessions is disclosed to unrelated third parties” or 2) “when
the privilege is not asserted during testimony.” Bolander, 722 F.3d at 223.
Defendants potentially seek, at least in part, discovery protected by psychotherapist-patient
privilege. (See, e.g., DE 99-6 (requesting “[a]ll medical records and bills of any type whatsoever,
statements, electronic data, charts, notes, records, reports, treatment or observation of any mental
condition, alcoholism, substance abuse, narcotic additions or disorders of any kind and summaries
of all medical treatment rendered to plaintiff at Western Wake Treatment Center”); see also pl.’s
dep. (DE 99-3) at 24 (defendants seeking information from plaintiff regarding counseling sessions
at Western Wake Treatment Center)). However, defendants have not offered, and the court is not
aware of, any instance where plaintiff has either disclosed the substance of his therapy sessions to
unrelated third parties or did not assert the privilege during testimony. The record indicates
otherwise. (Compare pl.’s dep. (DE 99-3) at 12 (plaintiff’s attorney asserting privilege based on
“protocols of the facility in terms of confidentiality”) with Bolander, 722 F.3d at 223 (at deposition
Bolander “did not assert any privilege” and “openly discussed his participation” in the program)).
Defendants argument that this privilege can be waived by the placing of mental health at issue in
litigation is inconsistent with the Supreme Court’s decision in Jaffee and the Fourth Circuit’s
decision in Bolander.
Therefore, the court finds good cause pursuant to Rule 26(c) to issue a protective order
shielding from discovery or trial any information protected by the psychotherapist-patient privilege,
in other words any communications that were made in confidence, between a licensed psychiatrist,
psychologist, or social worker and plaintiff, in the course of diagnosis or treatment. See Fed. R. Civ.
P. 26(c) (“The court may, for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense . . . forbidding the disclosure
Substance Abuse Treatment Information under Federal Law
Under federal law, disclosure of medical records relating to the treatment of drug and alcohol
abuse patients in federally funded, regulated, or assisted treatment program is governed by the
provisions of Title 42 U.S.C. § 290dd–2 (“Public Health Service Act”):
Records of the identity, diagnosis, prognosis, or treatment of any patient which are
maintained in connection with the performance of any program or activity relating
to substance abuse education, prevention, training, treatment, rehabilitation, or
research, which is conducted, regulated, or directly or indirectly assisted by any
department or agency of the United States shall, except as provided in subsection (e)
of this section, be confidential and be disclosed only for the purposes and under the
circumstances expressly authorized under subsection (b) of this section.
42 U.S.C. § 290dd–2(a).
Disclosure is permitted if the patient provides prior written consent.
42 U.S.C. §
290dd–2(b)(1). If a patient refuses to consent, disclosure is permitted:
(C) If authorized by an appropriate order of a court of competent jurisdiction granted
after application showing good cause therefore, including the need to avert a
substantial risk of death or serious bodily harm. In assessing good cause the court
shall weigh the public interest and the need for disclosure against the injury to the
patient, to the physician-patient relationship, and to the treatment services. Upon the
granting of such order, the court, in determining the extent to which any disclosure
of all or any part of any record is necessary, shall impose appropriate safeguards
against unauthorized disclosure.
42 U.S.C. § 290dd–2(b)(2)(C).
The statute also expressly authorizes the Secretary of the Department of Health and Human
Services (“HHS”) to develop “procedures and criteria for the issuance and scope of orders under
subsection (b)(2)(C) of this section, as in the judgment of the Secretary are necessary or proper to
effectuate the purposes of this section.” 42 U.S.C. § 290dd–2(g). Pursuant to that authority, the
Secretary of HHS has promulgated regulations implementing the statutory disclosure provisions.
See 42 C.F.R. §§ 2.1–2.67.
Section 2.64 of the regulations defines “good cause” within the meaning of
An order under this section may be entered only if the court determined that good
cause exists. To make this determination, the court must find that:
(1) Other ways of obtaining the information are not available or would not be
(2) The public interest and need for the disclosure outweigh the potential injury to
the patient, the physician-patient relationship and the treatment services.
42 C.F.R. § 2.64(d).
Furthermore, § 2.63 of the regulations limits the court’s power under the statute to authorize
disclosure of “confidential communications,” providing, in relevant part, that:
(a) A court order under these regulations may authorize disclosure of confidential
communications made by a patient to a program in the course of diagnosis,
treatment, or referral for treatment only if:
(3) The disclosure is in connection with litigation or an administrative proceeding in
which the patient offers testimony or other evidence pertaining to the content of the
42 C.F.R. § 2.63(a)(3)(emphasis added). Therefore, if the information sought contains “confidential
communications,” a party must satisfy both the “good cause” requirements of § 290dd–2(b)(2)(C)
and the requirements of Subdivision (a)(3). For non-confidential communications, a party must
only satisfy the “good cause” test set forth in § 290dd–2(b)(2)(C).5
Defendants argue they “have no other way of obtaining the information regarding Plaintiff’s
treatment for his alleged pain and suffering and mental anguish . . . .” (DE 106 at 3). However,
The Fourth Circuit has addressed this statutory scheme once, in Doe v. Broderick, 225 F. 3d 440 (2000), and
in a context different than that which is before this court. In Broderick, a plaintiff filed a § 1983 suit against a police
officer who conducted an unlawful search and seizure of plaintiff’s confidential treatment records from a methadone
clinic. The court found § 290dd–2 “relevant to the determination of whether there is a ‘societal understanding’ that Doe
has a legitimate expectation of privacy in his treatment records,” ultimately finding Doe did have a legitimate expectation
of privacy in the records. Id. at 450.
plaintiff asserts that he has already produced his past and incident-related medical records to
defendant, defendants have access to depose plaintiff’s medical treatment providers, and defendants
have already deposed the treating trauma surgeon who repaired plaintiff’s gunshot wound to his
hand, including asking questions about plaintiff’s pain medications, pain levels, and opioid
dependency. (DE 105 at 10).
Defendants additionally argue that plaintiff’s records are subject to discovery because
plaintiff has put his medical treatment at issue and that defendants “must be given an opportunity
to test the veracity of Plaintiff’s alleged damages to be able to defendant against those claimed
damages.” (DE 106 at 3; see DE 100 at 6). First, defendants’ position appears to conflate “good
cause” under this statutory scheme with relevance. That plaintiff has put his medical treatment at
issue does not necessarily mean the standard for “good cause” articulated by the regulations above
has been met. Second, plaintiff in response to discovery requests, in his deposition, and in his
submissions in opposition to defendants’ motion to compel has numerous times asserted that he does
not seek damages related to his methadone treatment or his use of methadone; therefore, it is unclear
what damages these records will verify.6 Defendants have stated only that plaintiff’s records have
been put at issue and have offered no reason why plaintiff’s methadone treatment records are
needed, why the medical records already received are deficient, or why the methadone treatment
records redacted, as previously offered by plaintiff, are insufficient.7
Plaintiff argues that he has “made it clear he is not and never will be seeking any form of damages in this
action for any facts related to his methadone treatment or use of methadone.” (DE 105 at 2 (emphasis in original); see
also id. at 9 (“Though Plaintiff did testify that he receives some pain relief from the methadone he takes, he testified
numerous times that the reason he goes to the clinic is not the pain he experiences from this incident, but rather to help
conquer his opioid dependency”)).
“Plaintiff notes that “in an effort to resolve this discovery dispute, Plaintiff offered to produce to the defense
his methadone records in redacted form showing any entries about the dates of his visits, his reported pain
levels/descriptions, his methadone prescriptions, and any statements he may have made regarding the shooting incident.”
(DE 105 at 10; see also emails regarding redacted records offer (DE 105-4)).
Accordingly, the court finds that good cause has not been shown for the release of plaintiff’s
Western Wake Treatment center medical records.8 To the extent that the responsive records are
maintained in connection with a substance abuse treatment program within the meaning of
§ 290dd–2 and are not protected under the psychologist-patient privilege, the court finds good cause
to issue a protective order shielding from discovery or trial that information related to the treatment
received by plaintiff at Western Wake Treatment Center pursuant to Rule 26(c). Additionally, the
court denies defendants request to award them attorney’s fees pursuant to Rule 37(a)(5).
Based on the foregoing, defendants’ joint motion to compel (DE 99) is DENIED and
plaintiff’s motion for protective order (DE 105) is GRANTED. Defendants request for attorney’s
fees is DENIED.
SO ORDERED, this the 8th day of December, 2017.
LOUISE W. FLANAGAN
United States District Judge
Inasmuch as defendants have not satisfied the “good cause” standard in § 2.64(d), the court need not address
whether defendants have satisfied the even more restrictive requirements in § 2.63(a) that apply to plaintiff’s
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