Hinkel et al v. Colling et al

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Case 1:20-cv-00166-NDF ‘Document 92 Filed 06/30/21 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING

3:11 pm, 6/30/21

DEBRA R. HINKEL, as the duly appointed U.S. Magistrate Judge

Wrongful Death Representative for the Estate
of Robert Michael Ramirez, deceased; and as
the duly appointed Administrator of the
Probate Estate of Robert Michael Ramirez,
deceased,

Plaintiff,

vs. Case No. 20-CV-166-NDF
DEREK R. COLLING, individually and in
his official capacity; DAVID O’MALLEY,
individually and in his official capacity as the
Sheriff of Albany County, Wyoming;
ALBANY COUNTY BOARD OF
COMMISSIONERS, a Wyoming body
corporate and politic; and ALBANY
COUNTY JOHN DOES I-X, real

names unknown, in this their individual

and official capacities,

Nee Nee Nee Ne ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee Se

Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION TO COMPEL

THIS MATTER comes before the Court upon Debra R. Hinkel’s (“Plaintiff”)
Motion to Compel Albany County Board of Commissioners to Produce Derek Colling’s
Psychological Records [ECF Doc. 82], which was filed on June 8", 2021. Defendant Derek
Colling (“Colling”) responded on June 15", 2021. ECF Doc. 84. Defendant Albany County
Commissioners (“Albany County”) responded on June 16, 2021. ECF Doc. 85. Plaintiff

finished the briefing of this matter by filing her reply on June 19", 2021. ECF Doc. 89. The

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Motion was expected by the Court. On June 4", 2021, the Court held an informal discovery
conference focused on this issue. Following the informal discovery conference, the Court
entered a Minute Order scheduling deadlines for this motion. ECF Doc. 79. Lastly, on June
24, 2021, the Court reviewed the post-shooting psychological evaluation in-camera.
Having now reviewed all motions and being fully apprised of the facts and circumstances
of this Motion, the Court finds the following:

BACKGROUND

This is a civil rights and wrongful death case arising from the shooting of Mr. Robert
Michael Ramirez. Pursuant to Plaintiff's negligent hiring and negligent retention claims
against Albany County and Defendant David O’Malley (“O’ Malley”), she seeks discovery
of two psychological evaluations Colling underwent that were required during his
employment; first on October 5", 2012 as a prerequisite to employment and a second on
January 17", 2019 as a prerequisite to return to active duty after killing Robert Ramirez.
ECF Doc. 82 pg 1. It is Plaintiffs position that these evaluations are highly relevant to the
matter at hand, not privileged by the psychological-patient privilege, and production would
not violate Colling’s constitutional rights. Colling’s argument against production of his
evaluations focuses on his constitutionally-based privacy interests in personal matters. He
argues that pursuant to the Tenth Circuit’s Colorado Test, the Court should find he
legitimately expected the evaluations to remain private even though the results were shared
with his employer. Albany County’s argument focuses solely on the applicability of the

psychological-patient privilege.

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Law

1. Scope of Discovery

Under Rule 26 of the Federal Rules of Civil Procedure parties to a lawsuit “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, considering the importance of the issues
at stake in the action, the amount in controversy, the parties' relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Fed. R. Civ. P. 26(b)(1). The purpose of the rule is to allow broad discovery of relevant

information, even if that information is not admissible at trial. Jd.

Relevance is broadly construed to contemplate “discovery into any matter that bears
on or that reasonably could lead to other matters that could bear on any issue that is or may
be raised in a case.” Sinclair Wyo. Refining Co. v. A&B Builders, Ltd., No. 15-CV-91-ABJ,
2017 WL 10309306, at *4 (D. Wyo. Oct. 31, 2017) (quoting Anaya v. CBS Broad., Inc.,
251 F.R.D. 645, 649-50 (D.N.M. 2007)). The party seeking discovery bears the burden of
proving relevance. Jd. at *5. However, when the discovery request is facially relevant, the
burden is on the party resisting discovery to establish: (1) that the request is not relevant or

(2) that the relevance is so marginal that the potential harm outweighs the presumption

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favoring discovery. See Gordon v. T.G.R. Logistics, Inc., 321 F.R.D. 401, 403 (D. Wyo.

2017).

When analyzing proportionality, the Court looks at “the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in resolving the issues,
and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Fed. R. Civ. P. 26(b)(1). The burden to prove disproportionality is on the party resisting

discovery. Sinclair Wyo. Refining Co., 2017 WL 10309306, at *5.

Rule 37 provides enforcement mechanisms for Rule 34 and other discovery rules.
According to Rule 37, if a party does not respond to an interrogatory or to a request for
production, the party requesting the discovery may move the court to compel the opposing
party to respond. Fed. R. Civ. P. 37(a)(2)(B). “[A]n evasive or incomplete disclosure,
answer, or response is to be treated as a failure to disclose, answer, or respond.” Fed. R.
Civ. P. 37(a)(4). Rule 37 prescribes sanctions for parties who fail to comply with discovery
until after a motion to compel is filed against them. With some exceptions, when a party is
compelled to provide discovery, or provides the discovery only after a motion to compel
has been filed against it, Rule 37(a)(5) requires the court to order the responding party to
pay the movant's reasonable expenses incurred in filing the motion. However, where parties
have taken legitimate positions, courts generally conclude that justice requires that each
party be responsible for their own fees and costs. Benavidez v. Sandia Nat'l Lab'ys, 319

F.R.D. 696, 720 (D.N.M. 2017).

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2. Psychotherapist Privilege

United State Supreme Court recognized the “federal psychotherapist privilege” in
Jaffee v. Redmond, 518 U.S. 1 (1996). Like most privileges, the psychotherapist privilege
is rooted in the imperative need for confidence and trust. Jd. at 10. The Jaffee court
discussed the extremely sensitive nature of the discussions between a patient and his/her
therapist and the importance of the confidence and trust necessary to effective care. Id. at
10. It would be difficult to obtain such free communication without the confidence of the
patient that such information would remain private. The nature of such communications, if
disclosed, would often lead to embarrassment, humiliation and disgrace. The Jaffee court
further recognized that the subject privilege would serve public interests. “The
psychotherapist privilege serves the public interest by facilitating the provision of
appropriate treatment for individuals suffering the effects of a mental or emotional
problem. The mental health of our citizenry, no less that its physical health, is a public
good of transcendent importance.” Jd. at 11. The privilege extends to confidential
communications made to licensed psychiatrists, psychologists, and social workers in the
course of psychotherapy. United States v. DeLeon, 426 F. Supp. 3d 878, 906 (D.N.M.
2019). That is, the communications must be made in the course of diagnosis and treatment.
Id. at 905. Like other testimonial privileges, the patient may of course waive the protection.

Id. (citing Jaffee, 518 U.S. at 15 n.14).

There has been a great deal of litigation concerning discovery of police officer’s

communication with therapists, regardless if the interaction was compulsory or voluntary.

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The courts seemingly agree on two key rules. First, the privilege does in fact attach to
counseling sessions that an employer requires. See Speaker ex rel. Speaker v. County of
San Bernardino, 82 F. Supp. 2d 1105 (C.D. Cal. 2000). Second, the inquiry turns on
whether or not the officer knew that the counselor’s report would be shared with his
employer, i.e. if the privilege has been waived. See Speaker ex rel. Speaker v. County of
San Bernardino, 82 F. Supp. 2d 1105 (C.D. Cal. 2000), Barrett v. Vojtas, 182 F.R.D. 177
(W.D. Pa. 1998), Boudreau ex rel. Boudreau v. Ryan, No. 00 C 5392, 2001 WL 1001156,

at *4 (N.D. Ill. Aug. 24, 2001), Phelps v. Coy, 194 F.R.D. 606, 608 (S.D. Ohio 2000).

There are two ways the privilege may be waived. First, a party waives the privilege
by placing his or her medical condition as issue. Fisher v. Sw. Bell Tel. Co., 361 F. App'x
974, 978 (10th Cir. 2010). Second, a party waives the privilege if he or she has no
reasonable expectation that the communications will remain private. Dorato v. Smith, 163
F. Supp. 3d 837, 886 (D.N.M. 2015). Ifa party is informed that evaluations, tests, therapy
session notes, or any other information will be disclosed to his or her employer, that party

cannot have a reasonable expectation of privacy. Jd.
3. Due Process

Colling seeks to protect the pre-employment evaluation pursuant to the Fourteenth
Amendment due process protection of personal privacy. Certain forms of personal
information possessed by the state is protected from disclosure when a legitimate

expectation exists that the information will remain private. Mangels v. Pena, 789 F.2d 836,

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839 (10th Cir. 1986). The Tenth Circuit has acknowledged that police officers have a right
to prevent disclosure of personal matters within police personnel and investigative files.
Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d 432 (10th Cir.1981). To
determine whether these personal matters fall within the “zone of confidentiality”, the court
must apply the “Colorado Test”. Under the test, the court must consider, (1) if the party
asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a
compelling state interest, and (3) if disclosure can be made in the least intrusive manner.
Id. at 435 (citing Martinelli v. District Court in and for the City and County of Denver, 199

Colo. 163, 612 P.2d 1083, 1091 (1980)).

Discussion

1. Pre-employment Evaluation

With respect to the pre-employment evaluation, the Court is satisfied that the
requested record is within the scope of discovery. The evaluation is relevant because it is
reasonably calculated to lead to the discovery of admissible evidence regarding whether
Colling was prone to use excessive force and whether the other defendants were aware of
that propensity. This was information held by the County and utilized in its decision to hire
Colling, and as such is relevant to Plaintiffs claims of negligent hiring. It is also
proportional when considering the importance of civil right, the amount in controversy and

the relatively low burden of production to the Defendants.

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Next, the Court finds that the pre-employment evaluation is not protected by the
psychotherapist privilege as Colling did not enjoy any expectation of privacy. The testing
and evaluation was performed at the request and for the benefit of the Albany County
Sheriff's Office and Colling was fully aware that the information would be shared with that
office. Colling applied for a position with the Albany County Sheriffs office and
undertook the required testing to obtain the position. He was fully aware that the evaluation
would result in a report outlining his psychological suitability to be a law enforcement
officer. Colling was certainly aware that the report, along with accompanying evaluations,
tests, therapy session notes, or other information collected by the therapist, would be
disclosed to his employer, thereby eliminating any reasonable expectation to privacy he
might have had. Illustrating just how aware of this disclosure Colling was, he went as far
as signing a release of information form which provided for broad disclosure of all
information obtained during his pre-employment investigation. ECF Doc. 82-4. While the
form did not specifically address psychological testing, it does support the lack of
confidentiality related to the information obtained in regard to the hiring decision of the

Sheriff’s Office.

Colling relies heavily upon Mason v. Stock, 869 Supp. 828 (D. Kan. 1994). In
Mason, a police officer was involved in a physical altercation and the court was faced with
a discovery issue concerning the officer’s personnel files in an excessive force case much
like we are today. Ultimately, the Court applied the Colorado Test and found an officer’s

psychological evaluation was so highly personal and sensitive in nature that it deserved to

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be safeguarded. In applying the Colorado Test and relying on Mason, Colling simply
determines he had a legitimate expectation of privacy even though his psychiatric
evaluation was disclosed to his employer. ECF Doc. 84 at pg 4. His conclusory statements

are of no value for several reasons.

First, the District Court of Kansas has itself casted doubt on validity of Mason. See
Utter v. Thompson, No. 11-2360-KHV, 2013 WL 875506, at *2 (D. Kan. Mar. 7, 2013).
Second, even assuming Mason remains good law, the District of Kanas has itself held that
an officer has no reasonable expectation of privacy with respect to pre-employment
psychiatric evaluations when the officer knows the information will be disclosed to the
police department. Jd. Finally, the Kansas court has held disclosure of psychiatric
evaluations serves a compelling state interest because privileges are narrowly, not
expansively construed, and disclosure can be done in a least intrusive manner with a

protection order in place. Jd.

This Court reaches a similar outcome when applying the Colorado Test. Regarding
the pre-employment psychiatric evaluation, the Utter reasoning is persuasive. Colling had
no reasonable expectation of privacy with respect to his pre-employment psychiatric
evaluation. He knew his employer would be provided information about the evaluation and
he went as far as signing a release authorizing such a disclosure. Also, the Court finds
disclosure of pre-employment psychiatric evaluations serves a compelling state interest in
ascertaining the truth, and that interest overrides any legitimate expectations of privacy

Colling might have had. “Section 1983 represents a balancing feature in our governmental

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structure whereby individual citizens are encouraged to police those who are charged with
policing us all... [t]hus, it is of special import that suits brought under this statute be
resolved by a determination of the truth rather than by a determination that the truth shall
remain hidden.” Dorato, F. Supp. 3d at 891 (D.N.M. 2015) (citing Wood v. Breier, 54
F.R.D. 7, 11 (E.D.Wis.1972)). Were law enforcement agencies to hire individuals who
were shown by such testing to be unsuited for police work and then withhold such
information from discovery, it would become unfairly difficult for plaintiffs to prove
negligent hiring. The trier of fact must have access to the full body of information available
in regards to the hiring decision. That, and the fact that disclosure can be done in a least
intrusive manner considering the protection order that is already in place, supports a finding

by the Court that the pre-employment evaluation must be produced.

2. Post-shooting Evaluation

The inquiry is more difficult when addressing the post-shooting evaluation. First,
the psychotherapist privilege does apply to the post-shooting evaluation. Unlike pre-
employment evaluation, post shoot is addressing multiple issues, including the impact of
the shooting on the officer. It is true that the evaluation is also focused on the ability of the
officer to return to regular duties, but that concern includes the ability of the officer to deal
with the trauma of being involved with a fatal shooting. As such, the session addresses both
therapy for the officer and the department’s questions of fitness to return to duty. It is
important that our officers have confidence and trust in post-shooting counseling sessions

for the reasons set forth in. Jaffee, 518 U.S. at 10 (1996). After traumatic events like a

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shooing, our officers need to know they can speak frankly and honestly to those capable of
providing help. As stated earlier, the psychotherapist privilege is rooted in the imperative

need for confidence and trust. Jd.

The inquiry, then, is whether Colling has waived the privilege. The same inquiry is
needed when assessing the application of the Colorado Test. That is, does Colling have a
reasonable expectation of privacy in his post-shooting evaluation? The absence of an
expectation of privacy defeats an application of the Colorado Test and would clearly
constitute a waiver of the privilege. Simply put, like any type of privilege inquiry,

disclosure to a third party abolishes protections.

The case law is clear, an officer does not have an expectation of privacy, and
therefore the privilege does not attach and the Colorado Test is failed, if the officer knows
the therapist will produce a report or an evaluation to his employer. Dorato, 163 F. Supp.
at 878 (D.N.M. 2015) (citing Barrett v. Vojtas, 182 F.R.D. 177 (W.D.Pa.1998)). Much like
his pre-employment release of information, Colling signed a release of information
pertaining to his post-shooting evaluation that specifically authorizes disclosure to
Defendant O’Malley and the Albany County Sheriff's Office.! Clearly, this is not a
situation where named defendants protected a post-incident evaluation by ensuring the
officer retained an expectation of privacy. See Caver v. City of Trenton, 192 F.R.D. 154

(D.N.J. 2000) (“[The therapist] does not disclose any confidential information but merely

!The Court requested, and was provided for an in-camera inspection, a copy of the release signed by Colling for the
post shooting evaluation.

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gives a ‘Pass’ or “Fail? recommendation of fitness for duty to the police department”).
Unquestionably, Colling did not have a reasonable expectation of privacy regarding the

post-shooting evaluation.

However, the Court questions the relevance of the post-shooting evaluation.
Plaintiff argues that due to her claims of 1) unconstitutional policy, practice, custom, or
usage, 2) failure to train, 3) failure to supervise, and 4) ratification, the post-shooting
evaluation could reasonably lead to relevant information. However, the post-shooting
evaluation focused on whether Colling was mentally fit to return to work. It has no bearing
whatsoever on whether Colling’s superiors condoned his actions or were somehow liable
for any alleged short comings during the incident. The Court also fails to see how Colling’s
emotional reaction to the shooting or how Colling’s ability to return to work would be
relevant. Plaintiff argues that because Colling is the only eye-witness of the shooting, any
evidence that goes to his propensity for truthfulness and credibility is crucial to this case.
The Court is not persuaded by her argument. The evaluation provides a synopsis of what
topics were discussed by the therapist and Colling, generally explains what Colling had to
say about each topic, and then reaches a determination that Colling is fit to return to work.
The evaluation does not and cannot weigh on his propensity for truthfulness or credibility.
There are other evidentiary sources, both more proportional and relevant, that may be used

when assessing Colling’s propensity for truthfulness and credibility.

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Conclusion

The Court finds that all records pertaining to Defendant Colling’s pre-employment
psychological evaluations are discoverable pursuant to Federal Rule of Evidence 26 and
therefore shall be produced in compliance with the protective order in place [ECF Doc.

73].

The Court finds that all records pertaining to Defendant Colling’s post-shooting
psychological evaluations, although the privilege associated with these records was
waived, are not discoverable pursuant to Federal Rule of Evidence 26 and therefore shall

not be produced.

The Court finds that the parties have taken legitimate positions on these issues. As
such, justice requires that each party be responsible for their own fees and costs associated

with the filing and briefing of this motion.
IT ISSO ORDERED.
DATED this 30" day of June, 2021.

Mb be

MARK L. CARMAN
UNITED STATES MANGISTRATE JUDGE

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