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Hibbs v. Marcum

United States District Court, W.D. Kentucky, Louisville Division

February 20, 2018

GUY JANTZEN HIBBS PLAINTIFF
v.
TIMOTHY TODD MARCUM, et al. DEFENDANTS

          OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE

         Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for resolution of all discovery issues. (Docket #13).

         Plaintiff, 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).

         Background

         On 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).

         Plaintiff 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).

         Plaintiff 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[1]. 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.

         Legal Standard

         Federal 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. Fed.R.Civ.P. 37(a)(3).

         Federal 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.”).

         i. Plaintiff's request for the production of “any and all records regarding his treatment, care, evaluation, testing, and/or counseling with the Lexington Psychiatric Group.”

         Plaintiff 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.

         Plaintiff's 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.

         Alternatively, 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 ...


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