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Medina v. County of San Diego

United States District Court, S.D. California

September 25, 2014

JENNIFER MEDINA, an individual, Plaintiff,
v.
COUNTY OF SAN DIEGO; et al., Defendants. ARLENE SUSAN MEDINA, an individual; ROBERT LEO MEDINA, an individual, Plaintiffs,
v.
COUNTY OF SAN DIEGO; et al., Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF JENNIFER MEDINA'S MOTION TO COMPEL DISCOVERY OF COUNTY/SHERIFF DEPARTMENT AND CALIFORNIA HIGHWAY PATROL DOCUMENTS [ECF NO. 99]

RUBEN B. BROOKS, Magistrate Judge.

On May 2, 2014, Plaintiff Jennifer Medina filed a combined Motion to Compel Discovery of County/Sheriff Department and California Highway Patrol Documents [ECF No. 99]. Defendants' opposition briefs were filed on May 19, 2014 [ECF Nos. 105, 108]. Plaintiff did not file a reply. The hearing on the motion was set for July 7, 2014. The Court determined the matter to be suitable for resolution without oral argument, submitted the motion on the parties' papers pursuant to the Local Civil Rule 7.1(d), and vacated the motion hearing. (Mins., July 1, 2014, ECF No. 115.) For the following reasons, the Court GRANTS in part and DENIES in part Plaintiff's Motion to Compel.

I. BACKGROUND

This civil rights case arises out of a vehicle pursuit and subsequent shooting death of Robert J. Medina on November 16, 2006. (Consolidated Compl. 5, ECF No. 57.) Plaintiffs are his widow, Jennifer Medina, and parents, Robert and Arlene Medina. (Id. at 3.) Robert Medina was a 22-year-old active duty Marine who had recently returned from a tour of duty in Iraq and suffered from post-traumatic stress syndrome. (Id. at 5.) At approximately 1:00 a.m. on November 16, 2006, Medina left his home after arguing with his wife. (Id.) He was observed driving at a slow rate of speed on Highway I-5 near the City of Oceanside and weaving in his lane. California Highway Patrol ("CHP") officers attempted to pull him over on suspicion of driving under the influence. (Id. at 5-6.) When Medina failed to stop, dispatch was notified and a slow speed pursuit followed. (Id. at 6-7.)

Eventually, at least five patrol cars joined the pursuit. (Id. at 7.) The pursuit escalated at the intersection of Leucadia Boulevard and Highway 101 in Encinitas. (Id.) By then, San Diego County Deputy Sheriff Mark Ritchie intervened in the pursuit and deployed a spike strip, allegedly without properly coordinating his actions with the pursuing officers. (Id.) When Medina swerved in Ritchie's direction to avoid the spike strip, CHP Officer Timothy Fenton radioed in the situation as an assault with a deadly weapon. (Id. at 7-8.) Plaintiffs allege that this created a false and heightened threat alert to other law enforcement officers. (Id. at 8.) Ritchie allegedly continued to pursue Medina without proper radio communication with the CHP officers. (Id.) Another pursuing officer reported an "assault with a deadly weapon" after Medina swerved again to avoid another spike strip. (Id.) As a result of Ritchie's tactics, two CHP patrol vehicles became disabled; nonetheless, the pursuit continued. (Id.)

Plaintiffs allege Fenton engaged in a Pursuit Immobilization Technique ("PIT") maneuver that added further elements of danger to an otherwise nonthreatening slow-speed pursuit. (Id. at 8-9.) As Medina drove past the patrol car, Fenton allegedly told his partner Martin, "Let's end this. Let's end this." (Id.) As a result of the PIT maneuver by Fenton, Medina's truck was forced off the road and up against a chainlink fence in Solana Beach. (Id.) Ritchie then rammed the front end of the truck with his patrol car to pin it against the fence. (Id. at 9.) Fenton and Martin blocked the truck with their vehicle against the right-side passenger side of the truck. (Id.) Plaintiffs also claim that Medina's truck abutted a concrete lamp post "which prohibited the truck's movement to the right and protected officers taking up positions on the passenger side of the truck." (Id.) Defendant Fenton was seen standing by his patrol car with his gun drawn and giving commands. (Id. at 12.)

Plaintiffs allege that the truck was pinned by the two patrol cars and not moving when the officers began firing. (Id. at 14.) The officers allegedly could see Medina's hands and observed him unarmed prior to firing their weapons. (Id. at 13.) Defendant Ritchie allegedly fired eleven rounds while he was in front of Medina's truck, and fired more rounds after he moved behind his patrol car. (Id. at 14.) Plaintiffs argue that Ritchie was not in danger of being run over by Medina but still fired directly at him in an attempt to kill Medina. (Id. at 15.) Plaintiffs allege that Defendants Fenton, CHP Officer Leo Nava, and Deputy Sheriff Karla Taft also fired shots at Medina's truck. (Id.) In total, the officers fired thirty-seven rounds. (Id. at 16.) Medina was alive when he was pulled from his truck but died shortly after the paramedics arrived at the scene. (Id.)

On the basis of these allegations, Plaintiffs claim that Defendants CHP Officers Leo Nava and Tim Fenton and San Diego Sheriff's Department Deputies Mark Ritchie and Karla Taft used excessive force and engaged in unlawful policies, customs, or habits, in violation of Plaintiffs' and Medina's constitutional rights. Specifically, Plaintiffs allege Defendants used "unnecessary, unjustified excessive force" when they shot and killed Medina in violation of his constitutional rights. (Id. at 17.) This, according to the consolidated complaint, constituted an unlawful seizure in violation of the Fourth Amendment. (Id.)

The following claims presently remain in the case: (1) Jennifer Medina's claim for excessive force in violation of Medina's rights under the Fourth Amendment against Taft, Ritchie, Nava, and Fenton; (2) Jennifer Medina's claim for loss of companionship in violation of her rights under the Fourteenth Amendment as against Ritchie, Nava, and Fenton; (3) Jennifer Medina's claim pursuant to Monell v. Dep't of Soc. Servs. of New York , 436 U.S. 658 (1978), for unlawful policies, customs, or habits against the County of San Diego; and (4) Medina's parents' claim for excessive force in violation of the right of association under the Fourteenth Amendment as against Ritchie, Nava, and Fenton.

II. DISCUSSION

Plaintiff Jennifer Medina moves to compel Defendant County of San Diego and Defendants Nava and Fenton to produce six categories of documents[1] relating to each of the individual Defendants: (1) performance evaluations and training records; (2) "fitness for duty" evaluations and "return to work" reports; (3) internal affairs reports and investigations of other incidents or complaints; (4) discipline, reprimand or remedial training records; (5) Civil Service Commission records; and (6) Critical Incident Review Board and CHP investigative records and reports. (Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 2-3, ECF No. 99.)

The documents pertaining to Deputies Ritchie and Taft were requested in document requests addressed to Defendant County of San Diego. (Id. Attach. #2 Decl. Acosta 2.) For Defendants Fenton and Nava, the requested items are described in requests for production served on these two Defendants. (Id.) In their oppositions, the responding Defendants opposed disclosure, claiming the documents are shielded by the official information privilege, are subject to privacy rights, or seek irrelevant information. (Def. San Diego Cnty.'s Opp'n 2, 4, ECF No. 108; Joint Opp'n Defs. Nava & Fenton 5, ECF No. 105.)

A. Legal Standards

1. Relevance

The scope of discovery under the Federal Rules of Civil Procedure is broad. See, e.g., Kelly v. City of San Jose , 114 F.R.D. 653, 668 (N.D. Cal. 1987). Federal Rule of Civil Procedure 26 states:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Fed. R. Civ. P. 26(b)(1). "The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Oakes v. Halvorsen Marine Ltd. , 179 F.R.D. 281, 283 (C.D. Cal. 1998).

"[I]n the context of civil rights excessive force cases against police departments, plaintiffs may suffer great difficulties if courts impose demanding relevancy standards on them." Soto v. City of Concord , 162 F.R.D. 603, 610 (N.D. Cal. 1995) (citing Kelly , 114 F.R.D. at 667-68). Thus, "it should be sufficient for a plaintiff to show how information of the kind that is likely to be in the files could lead to admissible evidence.'" Id . Courts have found performance evaluations relevant to excessive force claims. Id. at 615; Hampton v. City of San Diego , 147 F.R.D. 227, 229 (S.D. Cal. 1993). Also, performance evaluation records proving the police department had notice or ratified the officers' actions may be relevant to show unlawful policies, customs, or habits as part of Plaintiffs' Monell claim. See Hampton , 147 F.R.D. at 229.

2. Official information privilege

"Federal common law recognizes a qualified privilege for official information." Sanchez v. City of Santa Ana , 936 F.2d 1027, 1033 (9th Cir. 1990) (citing Kerr v. United States Dist. Ct. for the N. Dist. of Cal. , 511 F.2d 192, 198 (9th Cir. 1975)). The discoverability of official documents should be determined under the "balancing approach that is moderately pre-weighted in favor of disclosure." Kelly , 114 F.R.D. at 661. The party asserting the privilege must properly invoke the privilege by making a "substantial threshold showing." Id. at 669.

The party must file an objection and submit a declaration or affidavit from a responsible official with personal knowledge of the matters attested to by the official. Id . The affidavit or declaration must include (1) an affirmation that the agency has generated or collected the requested material and that it has maintained its confidentiality, (2) a statement that the material has been personally reviewed by the official, (3) a description of the governmental or privacy interests that would be threatened by disclosure of the material to the plaintiff or plaintiff's attorney, (4) a description of how disclosure under a protective order would create a substantial risk of harm to those interests, and (5) a projection of the harm to the threatened interest or interests if disclosure were made. Id. at 670. Requiring the defendant to make a "substantial threshold showing" allows the plaintiff to assess the defendant's privilege assertions and decide whether they should be challenged. Id.

If a plaintiff challenges defendant's invocation of the official information privilege, the court "must weigh the potential benefits of disclosure against the potential disadvantages" to determine whether the privilege applies. Sanchez , 936 F.2d at 1033-34. Courts consider the following factors when balancing the interests of the parties in the context of an official information privilege claim:

(1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information.
(2) The impact upon persons who have given information of having their identities disclosed.
(3) The degree to which government self-evaluation and consequent program improvement will be chilled by disclosure.
(4) Whether the information sought is factual data or evaluative summary.
(5) Whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question.
(6) Whether the police investigation has been completed.
(7) Whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation.
(8) Whether the plaintiff's suit is non-frivolous and brought in good faith.
(9) Whether the information sought is available through other discovery or from other sources.
(10) The importance of the information sought to the plaintiff's case.

Kelly , 114 F.R.D. at 663 (citing Frankenhauser v. Rizzo , 59 F.R.D. 339 (E.D. Pa. 1973)). "If the court concludes, based on this review [of the affidavit and both parties' submissions], that defendants' submissions are not sufficient to meet its threshold burdens, the court will order disclosure of the material." Id. at 671; see also Hampton , 147 F.R.D. at 231. But if the defendants' submissions are sufficient to meet the threshold burden, the court may order supplemental briefing and conduct an in camera review of the withheld documents to decide whether they should be produced. See Kelly , 114 F.R.D. at 671.

3. Privacy

With respect to privacy rights, federal courts recognize a constitutionally-based right of privacy that may be asserted in response to discovery requests. Soto , 162 F.R.D. at 616. The resolution of a party's privacy objection involves balancing the need for the information sought against the privacy right asserted. Id . (citing Perry v. State Farm Fire & Cas. Co. , 734 F.2d 1441, 1447 (11th Cir. 1984)). "In the context of the disclosure of police files, courts have recognized that privacy rights are not inconsequential." Soto , 162 F.R.D. at 616. "[F]ederal courts generally should give some weight to privacy rights that are protected by state constitutions or state statutes." Kelly , 114 F.R.D. at 656. "However, these privacy interests must be balanced against the great weight afforded to federal law in civil rights cases against police departments." Soto , 162 F.R.D. at 616.

B. Document Requests to Defendant San Diego County

1. Performance evaluations and training records (document requests 10, 11, 12, & 13)

In her request for production of documents served on Defendant County of San Diego, Plaintiff seeks performance evaluations for Defendants Ritchie (request number ten) and Taft (request number eleven) for the years 1996 through 2006. (Pl.'s Mot. Compel Attach. #2 Decl. Acosta Ex. 2, at 4, ECF No. 99.) Plaintiff also requests "[a]ll records relating to training received... and courses attended... for the years 1996 through 2006, including but not limited to current P.O.S.T. certificate, status of mandatory P.O.S.T. training, firearms and qualification dates, scores and remediation" for the years 1996 through 2006 for Ritchie (request number twelve) and Taft (request number thirteen). (Id.)

In response to these requests, Defendant County stated:

Responding Party objects on the grounds that personnel materials are protected from disclosure because they contain information pertaining to remedial measures and disciplinary recommendations; they are protected from disclosure by the deliberative process, self-critical analysis, required reports, and official information privileges. Disclosure of personnel, medical, and similar files is an unwarranted invasion of privacy under Penal Code section 832.8(f), CA Constitution, Article 1, Section 1; 5 U.S.C. 552a, and the Freedom of Information Act. They are protected from disclosure under the Federal Privacy Act. They are records complied [sic] for law enforcement purposes which are exempt from disclosure. They are privileged materials subject to disclosure only under CA Penal Code § 832.7 and Evidence Code § 1043. The material is irrelevant to the subject matter of this action and is not reasonably calculated to lead to the discovery of admissible evidence. Responsive documents will only be released pursuant to a court order. Subject to and without waiving said objection, Responding Party responds as follows: See privilege log and declarations concerning the privilege log produced herewith.

(Id. Ex. 3, at 9-12.[2]) For Deputy Ritchie, Defendant San Diego County identified the following files: (1) a personnel file, (2) internal affairs file, (3) internal affairs file no. 2012-150.1, (4) internal affairs file no. 2007-008.2, (5) personnel file - post certificate(s), (6) personnel file - CIRB, and (7) personnel file - worker's comp. (Id. Ex. 4, at 1-7, 12-13.) For Deputy Taft, the County identified four files: (1) a personnel file, (2) internal affairs file, (3) personnel file - post certificate(s), and (4) personnel file - CIRB. (Id. at 8-13.) Each listed file also includes a brief description of the documents contained in the file and identifies the parties asserting claims of privilege. (Id. at 1-13.)

A motion to compel may be brought where responses to Rule 34 requests for production are insufficient. See Fed.R.Civ.P. 37(a)(3)(B)(iv). When the discovery sought appears relevant on its face, "[t]he party resisting discovery bears the burden of establishing lack of relevance by demonstrating that the requested discovery either does not come within the broad scope of relevance or is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.'" Pulsecard, Inc. v. Discover Card Servs., Inc. , 168 F.R.D. 295, 309 (D. Kan. 1996) (citation omitted).

Plaintiff argues in her Motion to Compel that performance evaluations and training records should be produced because they are relevant and typically ordered disclosed in civil rights cases alleging excessive force, especially where plaintiffs also bring a Monell claim. (Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 8, ECF No. 99.) Defendant opposes the Motion, contending that the requested information is protected by the official information privilege and is not relevant to the litigation. (Def. San Diego Cnty.'s Opp'n 2, 4, ECF No. 108.) It is well established that police personnel records are "relevant and discoverable" in § 1983 cases. Green v. Baca , 226 F.R.D. 624, 644 (C.D. Cal. 2005) (citations omitted); Soto , 162 F.R.D. at 614-15. This includes any performance evaluations of Defendants by superiors. See Unger v. Cohen , 125 F.R.D. 67, 70 (S.D.N.Y. 1989) (finding such information to be "clearly relevant" in a § 1983 action arising out of alleged on-duty conduct).

Defendant County submitted declarations from Lieutenant Christine Harvel, commanding officer of the internal affairs division, and Captain Anthony Ray, commander of the personnel division of the San Diego County Sheriff's Department. (Def. San Diego Cnty.'s Opp'n Attach. #1 Decl. Harvel, ECF No. 108; id. Attach. #2 Decl. Ray.) Lieutenant Harvel believes that if the records of internal investigations are "sought, disclosed and used for other purposes, the ability of [Internal Affairs] to conduct a fair and thorough administrative investigations is undermined and impaired...." (Def. San Diego Cnty.'s Opp'n Attach. #1 Decl. Harvel 2, ECF No. 108.) Harvel also cautioned that "[i]ndiscriminate disclosure and uncontrolled dissemination of confidential records" can potentially discourage individuals from providing information; disrupt the daily operations of the department; affect employee morale; consume inordinate time, expense, and resources; and "frustrate the legitimate specific purposes of compiling and maintaining such records." (Id. at 3.) Captain Ray's declaration is a verbatim restatement of the same concerns. (Id. Attach. #2 Decl. Ray 3.)

"Questions of evidentiary privilege that arise in the course of adjudicating federal rights are governed by principles of federal common law." Green , 226 F.R.D. at 643. The Defendant's claim that disclosure would frustrate internal investigations lacks support and has been rejected by other courts. See Soto , 162 F.R.D. at 612 (noting that Kelly "debunks the theory that officers will be less truthful or forthright in expressing their opinions if there is a risk of future disclosure[]" and concurring with Kelly's reasoning) (quoting Kelly , 114 F.R.D. at 665-66); see also Watson v. Albin, No. C-06-07767 RMW, 2008 WL 1925257, at *2 (N.D. Cal. Apr. 30, 2008) ("[Defendant's] arguments that disclosure would discourage exhaustive internal investigations are unpersuasive. Courts in this district have previously rejected such claims, and there is no reason to depart from that reasoning here.") (citing Kelly , 114 F.R.D. at 672).

The Defendant County failed to explain how disclosure of the relevant documents to Plaintiffs and their attorneys pursuant to a protective order would harm a significant government or privacy interest. See Soto , 162 F.R.D. at 613; Kelly , 114 F.R.D. at 670. The declarations of Lieutenant Harvel and Captain Ray do not establish that a protective order would be insufficient to protect significant interests; they fail to project how much harm would be done to the threatened interests if disclosure under a protective order were made. Soto , 162 F.R.D. at 613. Yet, both declarants request that in the event disclosure is ordered, the Court "fashion a protective order to preclude any disclosure or dissemination of any records, documents or information ordered disclosed for any purpose other than the express and specific purpose for which the Court has ordered such disclosure." (Def. San Diego Cnty.'s Opp'n Attach. #1 Decl. Harvel 4, ECF No. 108; id. Attach. #2, Decl. Ray 4.)

The ten factors identified in Kelly to determine whether a claim of privilege for official information bars discovery, see Kelly , 114 F.R.D. at 663, all weigh in favor of disclosure. Plaintiff's need for the information sought is great. This information is unlikely to be available from any source other than the Defendants' records. There is a strong public interest in uncovering civil rights violations of the type at issue in this case. Soto , 162 F.R.D. at 617; Kelly , 114 F.R.D. at 667. The privacy interests asserted with respect to these documents are outweighed by Plaintiff's need for the information. A protective order and the redaction of any highly personal information for which Plaintiff has not shown a need will amply protect privacy interests. See, e.g., Soto , 162 F.R.D. at 616 (stating that "[a] carefully drafted protective order could minimize the impact of... disclosure"). Defendant County has not met the threshold burden for invoking the official information privilege.

To the extent the Defendant relies on the privilege set forth in California Penal Code section 832.7, federal courts do not recognize section 832.7 as relevant to evaluating discovery disputes in 42 U.S.C. § 1983 cases. See, e.g., Green , 226 F.R.D. at 643-44; see also Miller v. Pancucci , 141 F.R.D. 292, 299 (C.D. Cal. 1992) (finding California rules for discovery and privileges, including California Evidence Code section 1043, referenced in sections of California Penal Code, to be "fundamentally inconsistent" with federal law and the liberal federal policy on discovery).

The Court also rejects Defendant's objections on the ground of the self-critical analysis privilege, the deliberative process privilege, and the required reports privilege. The Ninth Circuit does not recognize the self-critical analysis privilege. Union P. R.R. Co. v. Mower , 219 F.3d 1069, 1076 n.7 (9th Cir. 2000) (citing Dowling v. Am. Hawaii Cruises, Inc. , 971 F.2d 423, 425-26 (9th Cir.1992)); accord Branch v. Umphenour, No. 1:08-CV-01655-AWI-GSA-PC, 2014 WL 3891813, at *7 (E.D. Cal. Aug. 7, 2014); Soto , 162 F.R.D. at 611. Furthermore, "the self-critical analysis privilege is inappropriately invoked by Defendants to shield internal investigatory documents and witness statements from discovery." Soto , 162 F.R.D. at 612. Likewise, the application of the deliberative process privilege is not appropriate in civil rights cases against police departments. Id . This privilege "should be invoked only in the context of communications designed to directly contribute to the formulation of important public policy." Id . It does not shield from disclosure "most of the kinds of information police departments routinely generate.'" Id . (quoting Kelly , 114 F.R.D. at 659). "Both the internal affairs investigations as well as the records of witness/police officer statements are of the type that would be routinely generated by Defendants." Id. at 612-13.

Defendant also asserts the required reports privilege, which applies if (1) the subject report is mandated and (2) federal law provides for the privilege. See Wiener v. NEC Elecs., Inc. , 848 F.Supp. 124, 128 (N.D. Cal. 1994). Additionally, the privilege is qualified and can be outweighed by a showing of substantial need. Pittman v. Cnty. of San Diego, Civil No. 09-CV-1952-WQH(WVG), 2010 U.S. Dist. LEXIS 97569, at *8 (S.D. Cal. Sept. 17, 2010). In any event, the Defendant has not established the second prong for the privilege, and the objection fails. For all these reasons, the Court GRANTS Plaintiff's Motion to Compel Defendant County to produce Deputy Ritchie and Taft's performance evaluations and training records for the time period of 1996 through 2006.

2. Fitness for duty evaluations and return to work reports (document requests 14, 15, 16, & 17)

Plaintiff sought all fitness for duty evaluations for the years 1996 to the present for Defendants Ritchie (request number fourteen) and Taft (request number fifteen). (Pl.'s Mot. Compel Attach. #2 Decl. Acosta Ex. 2, at 4, ECF No. 99.) The County objected, claiming the phrase "fitness for duty" was vague and ambiguous. (Id. Ex. 3, at 12-13.) It also invoked the same deliberative process, self-critical analysis, required reports, and official information privileges. The Defendant claimed that disclosure of medical records is an invasion of privacy, and that these records are not relevant to the action. (Id.)

Medina also requested all "Workers' Compensation permanent and stationary return to work reports" as related to Defendants' employment as San Diego Sheriff Deputies from 1996 to present for Ritchie (request number sixteen) and Taft (request number seventeen). (Pl.'s Mot. Compel Attach. #2 Decl. Acosta Ex. 2, at 5, ECF No. 99.) Defendant County opposed these requests on the grounds of privilege and relevance. (Id. Ex. 3, at 13-15.)

Plaintiff moves to compel, arguing that the fitness for duty evaluations and return to work reports are relevant to Plaintiffs' claims and necessary for Plaintiffs to prove their case. (Pl.'s Mot. Compel Attach. #1 Mem. P. & A. 9, ECF No. 99.) Medina argues that Plaintiffs are entitled to know whether any evaluator was aware of the Defendants' reckless propensities. Plaintiff also argues that the records are discoverable to the extent Defendants might rely on them to prove that they were fit for duty and justified in the shooting. (Id.) Finally, Medina contends that the records are neither privileged nor confidential under Jaffee v. Redmond , 518 U.S. 1 (1996). (Id. at 9-10.)

San Diego County opposes the motion, arguing that fitness for duty and return to work records are protected from disclosure as private medical records. (Def. San Diego Cnty.'s Opp'n 5, ECF No. 108.) It does not cite any authority to support this assertion, and fails to address Jaffee.

When ruling on a motion to compel, a court "generally considers only those objections that have been timely asserted in the initial response to the discovery request and that are subsequently reasserted and relied upon in response to the motion to compel." Calderon v. Experian Info. Solutions, Inc., 290 F.R.D. 508, 516 n.4 (D. Idaho 2013) (citation omitted). Because Defendant's brief does not further address the deliberative process, self-critical analysis, required reports, and official information privileges raised in the objections, those objections are overruled, and the Court will focus on the principal objection, the privacy of medical records. If this objection is a euphemism for protection under the psychiatrist-patient privilege, it fails. Disclosure is still required if the Court engages in a balancing of privacy interests.

In Jaffee v. Redmond , 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." 518 U.S. 1 , 15 (1996). This privilege generally applies only when the results of the evaluations were not disclosed to third parties. See Phelps v. Coy , 194 F.R.D. 606, 608 & n.2 (S.D. Ohio 2000) (holding that the psychotherapist-patient privilege did not protect information learned by a psychologist where she evaluated the officer at the behest of his municipal employer and disclosed the information to the employer); Kamper v. Gray , 182 F.R.D. 597, 599 (E.D. Mo. 1998) (psychotherapist-patient privilege did not apply to communications, reports, notes, documents, and test scores resulting from county police officers' counseling sessions with mental health professionals where county had required officers to undergo psychological evaluations on two occasions as part of their employment, and evaluation results were subsequently submitted to employer); Barrett v. Vojtas , 182 F.R.D. 177, 179 ...


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