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United States v. Hudson

United States District Court, Tenth Circuit

September 5, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN D. HUDSON, Defendant.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

This matter is before the Court on defendant's Renewed Motion To Invoke Privilege As To Psychotherapist-Patient Records (Doc. #63) filed August 16, 2013. Defendant asserts that certain documents are protected by the psychotherapist-patient privilege, attorney-client privilege or physician-patient privilege. These documents are attached to the Government's Response To Defendant's Invocation Of Privileges (Doc. #69) filed August 19, 2013 and are bates numbered MD 000001-000081 (Exhibit 1), A/C 000002-000112 (Exhibit 2), KPF 000001-000156 (Exhibit 3) and COMP 000001-000141. On September 4, 2013, the Court ruled that as to all documents which defendant disclosed to the Confidential Informant in connection with his application for disability benefits with the Kansas Public Employees Retirement System ("KPERS"), defendant has waived the psychotherapist-patient privilege and the "common-interest" exception does not otherwise protect these documents. Order (Doc. #106). Consistent with the Court's ruling, the AUSA who is assigned to the privilege issue disclosed to government trial counsel the following Bates numbered documents: MD 000001-33, 36, 39, 42, 45-65, and 66-81; KPF 000001-3, 16-21, 25-26, 29-62, 68-91, 94-95, and 103-04; and COMP 000016-27 and 33-139. See Notice Of Disclosure (Doc. #107) filed September 4, 2013. This Memorandum And Order sets forth the reasons for the Court's rulings on privilege in its prior order and sets forth the rulings on the remaining issues which were raised by defendant's renewed motion to invoke privilege.

Analysis

The Court applies federal common law to resolve defendant's assertion of privilege. See Fed.R.Evid. 501. The Supreme Court has cautioned that evidentiary privileges contravene the fundamental principle that the public has a right to every man's evidence. Trammel v. United States , 445 U.S. 40, 50 (1980) (citation omitted). Accordingly, the Court strictly construes evidentiary privileges and accepts them only to the very limited extent that excluding relevant evidence "has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Id . (quotation and citation omitted).

I. Psychotherapist-Patient Privilege

Defendant again argues that his statements to a female Confidential Informant ("CI") about his application for disability benefits to the Kansas Public Employees Retirement System including the documents which he submitted to the CI are protected by the psychotherapist-patient privilege. A psychotherapist-patient testimonial privilege applies to "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment." Jaffee v. Redmond , 518 U.S. 1, 15 (1996); see United States v. Romo , 413 F.3d 1044, 1047 (9th Cir. 2005).

Defendant maintains that his statements to the CI and the documents which he disclosed to her relating to the application and report which was submitted to KPERS are privileged because she was acting in the role of therapist. See Renewed Motion To Invoke Privilege As To Psychotherapist-Patient Records (Doc. #63) filed August 16, 2013 at 4; see also Sealed Reply To Government's Response Re: Privilege (Doc. #76) filed August 23, 2013 at 11 (CI gave "clinical advice concerning his disability claim, advice delivered by her own admission from a diagnostic perspective"). Judge Vratil previously rejected defendant's assertion of privilege as follows:

The record contains no evidence that the CI intended to diagnose or treat defendant, or that he expected her to do so. The record reveals only a close personal relationship - and not a psychotherapist-patient relationship - between the CI and defendant. Defendant may have expected his statements to her to remain confidential, but he has not shown that his expectations were legally protected because his statements were in the course of diagnosis or treatment. The CI did not testify why she thought that defendant expected his communications with her would remain confidential, and she certainly did not imply that any such expectation was based on a professional relationship, or because she was providing diagnosis or treatment. In sum, defendant has presented no credible evidence that his statements to the CI were in the course of psychiatric diagnosis or treatment.

Memorandum And Order (Doc. #62) filed August 14, 2013 at 1-2. In addition, throughout his disability application, defendant referred to his three diagnosing physicians, see, e.g., KPF 000020, KPF 000031 (Kathleen King, Phd, Grace Ketterman, MD and Fernando Rosso, MD), but did not refer to any diagnosis or treatment by the CI. As of July or August of 2012, defendant apparently referred to the CI as a "friend" who was helping him with the paperwork for his disability application. See Dr. King's treatment notes, KPF 000025 (defendant found it difficult to focus on paperwork for his disability application so he "asked for help from a friend unrelated to the police"). As Judge Vratil has noted, at most, defendant has shown that the CI was helping him with paperwork for his disability application - not that she was diagnosing or treating him. See United States v. Bolander, 722 F.3d 199, 223 (4th Cir. 2013) (privilege does not apply to communications with expert witness who is a psychotherapist because party sought assistance of expert to evaluate his medical condition, not to provide treatment); United States v. Ghane , 673 F.3d 771, 782 (8th Cir. 2012) (psychotherapist-patient privilege contemplates treatment; Jaffee extended privilege to licensed social workers who provide "actual mental health treatment"). The Court declines to revisit Judge Vratil's ruling that defendant has not met his burden to show that he made any particular statements to the CI in the course of diagnosis or treatment.

In his reply, defendant argues that his statements to the CI relating to the KPERS report are privileged because the CI shared a "common interest" in helping defendant obtain disability benefits. Sealed Reply To Government's Response Re: Privilege (Doc. #76) at 12-13. The "common interest" doctrine normally operates as a shield to preclude waiver of the attorney-client privilege when a disclosure of confidential information is made to a third party who shares a community of interest with the represented party. Frontier Refining, Inc. v. Gorman-Rupp Co., Inc. , 136 F.3d 695, 705 (10th Cir. 1998). When disclosure is necessary to accomplish the consultation or assist with the representation, as in the case of an interpreter, translator, or secretary, an exception to waiver preserves the privilege. In re Qwest Communications Int'l Inc. ("Qwest Communications") , 450 F.3d 1179, 1195 (10th Cir. 2006). Similarly, when the disclosure is to a party with a common interest, the "joint defense" or "common interest" doctrine provides an exception to waiver because disclosure advances the representation of the party and the attorney's preparation of the case. Id . To invoke the common interest privilege, the two individuals must have an identical legal interest. See In re P. Pictures Corp. , 679 F.3d 1121, 1127-28 (9th Cir. 2012) (shared desire to see same outcome in legal matter is insufficient to establish "common interest" or "joint defense" privilege); NL Indus., Inc. v. Commercial Union Ins. Co. , 144 F.R.D. 225, 230-31 (D.N.J. 1992) (community of interest exists where different persons or entities have "an identical legal interest with respect to the subject matter of a communication between an attorney and a client concerning legal advice;" nature of interest must be identical, not similar) (quoting Duplan Corp. v. Deering Milliken, Inc. , 397 F.Supp. 1146, 1172 (D.S.C. 1974)).

By extension, the psychotherapist-patient privilege may apply when a husband and wife seek mutual counseling. See Kamper v. Gray , 182 F.R.D. 597, 600 n.3 (E.D. Mo. 1998). Defendant has presented no evidence, however, that he and the CI sought such counseling.[1] The common-interest doctrine potentially could protect third-party services which are performed ancillary to diagnosis or treatment, cf. United States v. Davis , 636 F.2d 1028, 1043 (5th Cir. 1981) (accounting services performed ancillary to legal advice may be within attorney-client privilege), but defendant has not shown that the CI was consulted in this capacity or that she provided any ancillary services for one of his treating therapists.

Defendant also attempts to analogize his disclosure of documents to the CI to a situation where a client delivers documents to a third person to deliver to his attorney. See Blankenship v. Rowntree , 219 F.2d 597 (10th Cir. 1955) ("Memorandum prepared by client to supply her attorney with information was a privileged communication' inadmissible in evidence against client in action by third person, even though memorandum had been delivered by client to such third person to be sent to attorney."). In the context of the psychotherapist-patient privilege, defendant must show that he delivered documents to the CI so that she would forward them to his therapist. Defendant has presented no evidence to support such a theory.

In sum, defendant has not met his burden to show that his statements to the CI were protected under either the ...


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