United States District Court, W.D. Kentucky, Louisville Division
OPINION AND ORDER
KING, MAGISTRATE JUDGE
Judge Thomas B. Russell referred this matter to Magistrate
Judge Lanny King for resolution of all discovery issues.
Guy Jantzen Hibbs, filed this Motion to Compel. (Docket #
35). Defendants, Timothy Todd Marcum, Daniel Shipp, and
Colonel John Aubrey, filed a Response in opposition, arguing
that the documents requested are not relevant and are
protected by psychotherapist-patient privilege and that
disclosure would offend basic notions of public policy.
(Docket # 39). Plaintiff did not file a Reply Brief; this
Motion is now ripe for adjudication. For reasons detailed
below, Plaintiff's Motion is DENIED. (Docket # 35).
March 5, 2015, Defendant Marcum pulled Plaintiff over for
allegedly disregarding a stop light. The parties disagree
over what happened during the traffic stop; however, it is
undisputed that Plaintiff was arrested, taken to jail, and
charged with disregarding the stop light, having his license
plate obscured by snow, fleeing and evading, and menacing.
Plaintiff brought suit against Defendants alleging the
following counts: (i) excessive force, (ii) search and
seizure, (iii) false arrest, (iv) violation of due process,
(v) malicious prosecution, (vi) infringement on the right to
bear arms, (vii) failure to implement appropriate policies,
customs, and practices, (viii) assault and battery, (ix)
false arrest/imprisonment, (x) negligent hiring, supervision,
retention, and training, and (xi) failure to intervene/duty
to protect. (Docket # 1).
has served and Defendants have answered formal
interrogatories, requests to produce, and supplemental
interrogatories. (Docket # 35-1, 12, Ex.'s A, L).
Plaintiff has also taken the deposition of Defendant Marcum.
(Docket # 35-13, 14, Ex.'s M, N).
fails to articulate what information and documents he seeks
to compel, thus leaving the Court to guess at what relief he
is requesting. Although Plaintiff has included his formal
interrogatories and responses, requests to produce and
responses, supplemental interrogatories and responses, and
parts of Defendant Marcum's deposition as exhibits to his
Motion (Docket # 35), nowhere in Plaintiff's Motion does
Plaintiff provide the Court with a specific response to an
interrogatory or request to produce that he deems inadequate.
Moreover, Plaintiff's Motion to Compel is inconsistent in
that he requests only “any and all of Marcum's
non-confidential psychiatric records, evaluations, reports,
consultations, and/or tests- which were disclosed to an
employer, requested by an employer, and/or related to
employment” in the opening paragraph and then proceeds
to list five different requests in his conclusion
paragraph. Because Plaintiff's conclusion
paragraph contains several requests (Docket # 35, p. 16), the
Court will assume that Plaintiff intended to compel only
those responses and production of documents.
Rule of Civil Procedure 37 provides enforcement mechanisms
for Federal Rules of Civil Procedure 33 and 34. 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). An 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)(3). Under
Rule 37(a)(3) of the Federal Rules of Civil Procedure, a
motion to compel may only be made if the non-moving party
failed to answer or respond to a proper discovery request.
Rule of Civil Procedure 26(b)(1) is the touchstone for the
scope of civil discovery. Pogue v. NorthWestern Mut. Life
Ins. Co., No. 3:14-CV-598-CRS, 2017 WL 3044763, at *4
(W.D. Ky. July 18, 2017). Rule 26(b)(1) provides that
“[p]arties 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…Information within the scope of discovery need
not be admissible in evidence to be discoverable.”
Fed.R.Civ.P. 26(b)(1). Relevance is broadly construed to
encompass any matter that bears on, or that reasonably could
lead to other matters that could bear on any party's
claim or defense. Pogue, 2017 WL 3044763, at *5. The
Court has wide discretion when dealing with discovery
matters, including whether information might be relevant.
Id. Rule 26 was also recently amended to include a
proportionality provision. Id. (citing Albritton
v. CVS Caremark Corp., 2016 U.S. Dist. LEXIS 83606 at
*4, 2016 WL 3580790 (W.D. Ky. June 28, 2016)
(“Proportionality is the touchstone of the revised Rule
26(b)(1)'s scope of discovery provisions.”).
Plaintiff's request for the production of “any and
all records regarding his treatment, care,
evaluation, testing, and/or counseling with the Lexington
seeks any and all records from Lexington Psychiatric Group.
Plaintiff contends that these records are directly relevant
to the current case because they show or could show whether
Defendant Marcum has any propensity to engage in misconduct
and/or have the tendency to escalate confrontations.
Plaintiff also asserts that these records are not protected
by the psychotherapist-patient privilege because Defendant
Marcum's records were disclosed to his employer,
Jessamine County Sheriff's Office, and Defendant Marcum
knew that his records were disclosed to his employer. In
response, Defendant Marcum asserts that his records from
Lexington Psychiatric Group do not prove or disprove his
alleged tendency to escalate confrontations or engage in
misconduct. Defendant Marcum further argues that even if the
records are deemed relevant, they are protected by the
psychotherapist-patient privilege because he reasonably
expected that they would be kept confidential.
Plaintiff's request for the production of any and all
records regarding treatment and counseling with the Lexington
Psychiatric Group is denied because it is overly broad.
Moreover, the specific records that are related to Charles I.
Shelton's recommendation to Jessamine County
Sheriff's Office to excuse Defendant Marcum from work in
2004 are protected by the psychotherapist-patient privilege.
request is overly broad because it is not limited to the
Lexington Psychiatric Group records that were allegedly
disclosed to Defendant Marcum's employer, Jessamine
County Sheriff's Department, nor is Plaintiff's
request limited in scope. Additionally, Plaintiff's
request is broader than his previous request to produce:
“[p]lease produce any and all notes, memos,
evaluations, examinations, reports….that in anyway
concern your qualifications, suitability, capabilities,
mental, emotional, psychological, and/or physical condition
for employment with any law enforcement agency.”
(Docket #35-1, Request to Produce #5, pp. 21-22). Therefore,
Plaintiff's Motion to Compel any and all records
regarding Defendant Marcum's treatment, care, evaluation,
testing, and/or counseling with the Lexington Psychiatric
Group is DENIED.
even if the Court limited Plaintiff's request to only
those records related to the recommendation to Jessamine
County Sheriff's Office to excuse Defendant Marcum from
work in 2004, Plaintiff's request would still be denied.
For reasons explained below, Defendant Marcum has met his
burden and established that the psychotherapist-patient
privilege exists for the specific ...