J.M. et al v. City of Milwaukee et al

Filing 41

ORDER signed by Judge J. P. Stadtmueller on 12/15/2016. 34 Plaintiffs' MOTION to compel production of complete disability claim file for Defendant Manney GRANTED; Executive Director of City of Milwaukee Employees' Retirement System to produce claim file in accordance with [36-6] Plaintiff's subpoena dated 9/22/2016. 38 Defendant Manney's MOTION to quash DENIED. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
J.M. and
ESTATE OF DONTRE HAMILTON,
Plaintiffs,

Case No. 16-CV-507-JPS

v.
CITY OF MILWAUKEE and
CHRISTOPHER E. MANNEY,

ORDER

Defendants.
1.

INTRODUCTION
On November 9, 2016, the plaintiffs filed a motion to compel

compliance with a subpoena they issued to the City of Milwaukee
Employees’ Retirement System (“ERS”). (Docket #34). They have sought the
complete disability claim file for the defendant Christopher E. Manney
(“Manney”). Both Manney and the ERS1 have opposed the motion. (Docket
#38 and #39). Manney simultaneously moved to quash the subpoena. (Docket
#38). For the reasons stated below, the motion to compel will be granted and
the motion to quash will be denied.
2.

RELEVANT FACTS
In this action, the plaintiff alleges that Dontre Hamilton was killed by

Manney on April 30, 2014, and that in doing so, both Manney and the City
of Milwaukee violated various provisions of the Constitution. See generally
(Docket #1). Based on the trauma of that incident, Manney later applied for

1

ERS is also represented by the City of Milwaukee Attorney’s Office. The
City of Milwaukee itself has not offered any response or other motion related to the
subpoena.

disability benefits with the ERS. (Docket #36-1). The ERS manages, inter alia,
employee claims for disability benefits. (Docket #36-3).
The plaintiffs sought all documents related to that disability claim
from Manney himself, but he claimed that they were irrelevant, and also that
he did not have any such documents; they were all in the ERS’s possession.
(Docket #36-5 at 6). The plaintiffs then went to the ERS for the documents,
serving a subpoena on it on September 22, 2016. (Docket #36-6). The ERS
served objections to the subpoena on October 6, 2016, stating generally that
many of the desired documents would not be produced because 1) they were
subject to confidentiality rules and the psychotherapist-patient privilege, and
2) Wisconsin statute Section 146.82 prohibited disclosure of the records
without Manney’s consent. (Docket #36-7 at 2).
3.

ANALYSIS
Preliminarily, the Court notes that only Manney’s opposition is

applicable to the instant determination. Section 146.82 prohibits ERS from
disclosing Manney’s disability claim file unless, inter alia, there exists a court
order compelling it to disclose the file. Wis. Stat. § 146.82(2)(a)(4). Thus, if the
Court grants the motion to compel, ERS will be supplied with the necessary
order. If the Court denies the motion, the issue becomes moot. Further, ERS
itself does not seek to quash the subpoena on any of the grounds provided
in Federal Rule of Civil Procedure (“FRCP”) 45(d)(3)(A), so they lack any

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continued interest in this conflict.2 Manney, however, has requested that the
subpoena be quashed. (Docket #35 at 1). The Court is left, then, with the
issues of privilege and relevance raised by Manney and the plaintiffs. It will
address the parties arguments thereon separately below.
3.1

Psychotherapist-Patient Privilege

In Jaffee, the United States Supreme Court first recognized the
psychotherapist-patient privilege. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). It
equated the privilege to other common-law testimonial privileges, such as
attorney-client and spousal privileges. Id. at 9-10. The plaintiffs claim that
Manney waived his claim to his psychotherapist-patient privilege by sharing
his medical records with the ERS in order to obtain disability benefits. Id. at
15 n.14 (“Like other testimonial privileges, the patient may of course waive
the protection.”).
The parties characterize the dispute as one over “selective waiver.”
The plaintiffs contend that there can be no selective waiver of the
psychotherapist-patient privilege; by disclosing his health care information
to the ERS, Manney waived his psychotherapist-patient privilege entirely.
They cite Burden-Meeks, decided in February 2003, in support. There, the
Seventh Circuit held that with respect to the attorney-client privilege,
“[k]nowing disclosure to a third party almost invariably surrenders the

2

This also means that it does not matter whether ERS has standing to invoke
the psychotherapist-patient privilege on Manney’s behalf; Manney himself asserts
it in his motion to quash. The plaintiffs appear to argue that Manney waived the
privilege by failing to raise it in his discovery responses. They cite no law in
support thereof, however. The Court will not address whether waiver occurred at
that juncture without being provided legal support, and so continues on to the
substance of the parties’ arguments.

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privilege with respect to the world at large; selective disclosure is not an
option.” Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003).
Manney believes the opposite—that the Seventh Circuit recognizes
selective waiver of the psychotherapist-patient privilege. In support of his
view, Manney cites Dellwood Farms, decided in October 1997. In Dellwood
Farms, the court was faced with the federal government’s invocation of “the
‘law enforcement investigatory privilege,’ a judge-fashioned evidentiary
privilege.” Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1124 (7th Cir.
1997). The government had played certain tape recordings it had created in
a criminal investigation to lawyers for the company targeted by the
investigation (to induce a guilty plea). Id. Private plaintiffs later filed civil
suits against that company based on the same conduct which was the subject
of the prosecution. Id. Those plaintiffs subpoenaed the tapes from the
government, asserting that the government had waived its privilege by
playing the tapes to the company’s lawyers. Id.
Dellwood Farms stated that the law enforcement investigatory privilege
was not absolute. Id. at 1125. The privilege was subject to balancing “the need
of the litigant who is seeking privileged investigative materials [] against the
harm to the government if the privilege is lifted[.]” Id. The court’s holding,
however, was focused on whether the government had waived its privilege.
The court made a number of important notes on the waiver issue:
The cases . . . generally reject a right of “selective”
waiver, where, having voluntarily disclosed privileged
information to one person, the party who made the disclosure
asserts the privilege against another person who wants the
information. And this is a selective-waiver case. Selective
waiver must be distinguished from inadvertent disclosure,
where a party mistakenly discloses information that it had
intended to keep secret. Courts are somewhat less likely to find
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waiver in such a case. Somewhere in between is “partial
waiver,” where disclosure of a part of a privileged document
or set of such documents is argued to waive privilege in the
rest of it. Partial waiver is not in issue here. Nor inadvertent
waiver: the government does not argue that it did not intend
to play the tapes for the outside directors’ lawyers.
What selective and inadvertent (also partial) disclosure
have in common, however, is that neither is waiver in the
standard sense in which the word is used in the law: the
deliberate relinquishment of a right. When “waiver” is found
in either type of case, the inadvertent or the selective, it is in
order to punish the person claiming the privilege for a mistake,
rather than to prevent him from changing his mind and
retracting a benefit that he had consciously granted to the
person from whom he wants to retract it. In the case of
selective disclosure, the courts feel, reasonably enough, that the
possessor of the privileged information should have been more
careful, as by obtaining an agreement by the person to whom
they made the disclosure not to spread it further.
Id. at 1126-27 (citations omitted). The court found that waiver had not
occurred, concluding that finding waiver in this instance would be excessive
“punishment” to the government for disclosing the tapes to the company’s
lawyers. Id. at 1127.
The Court finds that Manney has waived his claim to the
psychotherapist-patient privilege. The psychotherapist-patient privilege is a
testimonial privilege which, as recognized by Jaffee, may be waived. As
between Burden-Meeks and Dellwood Farms, the Court finds that Burden-Meeks
is more apposite. Burden-Meeks deals with another common-law testimonial
privilege, the attorney-client privilege, and its holding on selective waiver is
clear. Dellwood Farms addresses a non-testimonial, judge-made privilege. This
difference is buttressed by the absolute nature of the common-law
testimonial privileges; Jaffee specifically rejected applying a balancing test to

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the invocation of the psychotherapist-patient privilege. Jaffee, 518 U.S. at 1718. The law enforcement investigatory privilege, to the contrary, explicitly
includes a balancing component.
Further, as shown by the above quotation, Dellwood Farms’ holdings
are far from clear, seemingly rejecting selective waiver, but then applying it,
and referencing the possibility of maintaining selective disclosure through
use of a confidentiality agreement.3 The parties did not cite, and the Court
itself has not located, any Seventh Circuit opinion applying Dellwood Farms’
selective waiver holding or otherwise discussing it. In fact, Burden-Meeks
itself seems to undermine Dellwood Farms, by citing it as an example
supporting its above-quoted holding. Burden-Meeks, 319 F.3d at 899
(“Knowing disclosure to a third party almost invariably surrenders the
privilege with respect to the world at large; selective disclosure is not an
option. See, e.g., Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1126–27
(7th Cir.1997)[.]”). This suggests that just over five years after Dellwood Farms,
the Court of Appeals itself interpreted the case as being generally against
selective waiver.
In the absence of such clarification, the Court rests on the more
analogous Burden-Meeks decision. Manney knowingly disclosed his
healthcare information, including communications potentially protected by
the psychotherapist-patient privilege, to a third-party, ERS. This surrendered
the privilege and opened the door to the plaintiffs to obtain the disability
claim file. See Mukes v. City of Milwaukee, No. 13-CV-1268-PP, 2015 WL
3823887 *3-6 (E.D. Wis. June 19, 2015) (holding that disclosure of

3

In finding that Burden-Meeks controls, the Court does not reach the issue of
whether the protections of Section 146.82 supply the necessary guarantee of
confidentiality.

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psychotherapy records to the ERS to obtain disability benefits waives the
privilege, though not discussing Dellwood Farms).
3.2

Relevance

FRCP 26(b)(1)’s rule on the scope of discovery does not prohibit the
requested subpoena. The Rule provides that discovery may be obtained
“regarding any nonprivileged matter that is relevant to any party’s claim or
defense[.] Information within this scope of discovery need not be admissible
in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). The Court has
already ruled that the information sought is non-privileged. Even with only
a description of the claim file and documents contained therein, as provided
by exhibits to the plaintiffs’ motion, the Court finds that the file could contain
relevant, though not necessarily admissible, information. See Fed. R. Civ. P.
26(b)(1). This may include information on Manney’s physical and mental
state prior to or during the April 30, 2014 incident, including any history of
psychiatric care. Whether Manney’s post-incident care is admissible at trial,
his primary concern in his memorandum, is a matter for another day.
4.

CONCLUSION
In light of the foregoing, the Court is constrained to grant the

plaintiffs’ motion to compel and deny Manney’s motion to quash. The ERS
must produce Manney’s complete disability claim file in its possession in
accordance with the plaintiffs’ subpoena. It is now supplied with the order
required to do so pursuant to Section 146.82.
Accordingly,
IT IS ORDERED that the plaintiffs’ motion to compel (Docket #34) be
and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Bernard J. Allen, Executive Director
of the City of Milwaukee Employees’ Retirement System, shall produce the
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complete disability claim file for the defendant Christopher E. Manney in
accordance with the plaintiffs’ subpoena dated September 22, 2016 (Docket
#36-6); and
IT IS FURTHER ORDERED that the defendant Christopher E.
Manney’s motion to quash (Docket #38) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 15th day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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