JOYCE v. DIXON

[D.I. 108 in 19-12002]

[D.I. 92 in 20-1118]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

AUDRA CAPPS and DOUGLAS ROBERT Civil No. 19-12002 (RMB/AMD)

GIBSON, JR.,

Plaintiffs,

v.

JOSEPH DIXON, et al.,

Defendants.

______________________________

TANIKA JOYCE, Civil No. 20-1118 (RMB/AMD)

Plaintiff,

v. MEMORANDUM OPINION AND ORDER

JOSEPH DIXON, et al.,

Defendants.

APPEARANCES:

Louis Charles Shapiro, Esq.

Louis Charles Shapiro, P.A.

1063 East Landis Avenue

Vineland, NJ 08362

Counsel for Plaintiffs

Thomas B. Reynolds, Esq.

Reynolds & Horn, P.C.

116 South Raleigh Avenue

Apartment 9B

Atlantic City, NJ 08401

Counsel for Defendant Dixon

A. Michael Barker, Esq.

Barker, Gelfand & James, P.C.

210 New Road

Suite 12

Linwood, NJ 08221

Counsel for Defendants Orndorf, Farabella, and City of

Millville

DONIO, Magistrate Judge:

This matter comes before the Court by way of motion [D.I.

108] of Plaintiffs Audra Capps and Douglas Robert Gibson, Jr. in

Civil Action No. 19-12002, and by way of identical motion [D.I.

92] of Plaintiff Tanika Joyce in Civil Action No. 20-1118, to

compel the production of fitness for duty reports of Defendants

Joseph Dixon and Bryan Orndorf in unredacted form. The Court has

considered the submissions of the parties and decides this matter

pursuant to Federal Rule of Civil Procedure 78(b). For the reasons

that follow, Plaintiffs’ motions to compel are granted.

The Court sets forth herein only those facts relevant to

the pending motions. In these actions, Plaintiffs generally assert

claims pursuant to 28 U.S.C. § 1983 arising out of their arrests

by officers of the Millville Police Department. Plaintiffs in both

actions allege that Defendant Dixon, a Millville police officer,

used excessive force in the course of arresting Plaintiffs. Capps

v. Dixon, Nos. 19-12002, 20-1118, 2021 WL 2024998, at *4, 8 (D.N.J.

May 21, 2021), reconsideration denied by 2022 WL 123183, at *1

(D.N.J. Jan. 13, 2022). Plaintiffs in the Capps matter further

assert that Defendant Orndorf, also a Millville police officer,

used excessive force in the course of the arrest of Plaintiff Capps

and failed to intervene in Defendant Dixon’s use of force during

the arrest. Id. at *5.1 In addition, Plaintiffs in both cases

assert claims for supervisory liability against the Millville

Chief of Police, Jody Farabella, and allege that “the Millville

Police Department maintained a policy or custom of permitting

officers to use excessive force without consequence” and further

allege that Farabella “knew about Dixon’s history of use of force

complaints for years before Capps’s arrest” but “ultimately failed

to take sufficient corrective measures.” Id. at *6. Further,

Plaintiffs assert claims against the City of Millville pursuant to

Monell v. Dep’t of Social Services, 436 U.S. 658 (1978), based

upon the City’s alleged improper training and supervision of its

police officers. Id. at *2.

In the course of discovery, Plaintiffs requested fitness

for duty reports for Defendants Dixon and Orndorf. Defendants

produced redacted versions of the reports for the 2018 and 2015

evaluations of Defendants Dixon and Orndorf, respectively, but

1 The District Court dismissed Plaintiffs’ claim against Orndorf

for failure to intervene in the arrest of Plaintiff Capps but did

not dismiss Plaintiffs’ claim regarding Orndorf’s use of force

during the arrest. Capps, 2021 WL 2024998, at *5.

Plaintiffs contend that the reports must be produced in unredacted

form. (See Letter from Louis Charles Shapiro, Esq. (hereinafter,

“Pls.’ Letter Br.”) [D.I. 108-1 in Civil No. 19-12002, D.I. 92-1

in Civil No. 20-1118], Oct. 14, 2021, p. 4.)2 Plaintiffs

specifically note that the report concerning Defendant Dixon

stated that Dixon “‘was advised and understood that the contents

of this evaluation would be provided to the Chief of Police.’”

(Id. at p. 5)(quoting Certification of Louis Charles Shapiro, Esq.

(hereinafter, “Shapiro Cert.”), Oct. 14, 2021, Ex. F.)3 Similarly,

2 Plaintiffs note that the 2018 report for Defendant Dixon refers

to an August 2012 evaluation and that Defendants are allegedly

unable to locate the report of that prior evaluation. (Pls.’ Letter

Br. at pp. 1-2.) Plaintiffs state that they “reserve the right to

request a spoliation instruction at trial and to seek whatever

other additional relief may be available from the Court for the

absence of that critical document.” (Id. at p. 5.) In the

“Conclusion” section of their briefs, Plaintiffs “suggest that the

Court order the Defendants to make further and more strenuous

efforts to locate that missing Dixon 2012 fitness for duty

report[.]” (Id. at p. 10.) Plaintiffs, however, have not filed a

formal motion seeking relief with respect to the 2012 report.

3 In the briefs filed on the docket, Plaintiffs redacted quotations

from the fitness for duty reports, including the above-quoted

statement by the examiner that the officers understood that the

contents of the evaluations would be provided to the Chief of

Police. This statement by the examiner does not reveal any

sensitive or confidential information about the officers, and the

Court therefore finds no basis for redaction of this sentence in

Plaintiffs’ briefs. Furthermore, Plaintiffs’ motions did not

comply with Local Civil Rule 5.3(c), as only redacted briefs were

filed on the docket, unredacted briefs and the Shapiro

Certification and exhibits were not filed on the docket under

temporary seal, and a motion to seal was not filed. The parties are

directed to meet and confer to determine whether there is a basis

Plaintiffs note that the report concerning Defendant Orndorf

stated that Orndorf “‘was advised and understood that the contents

of [the] evaluation would be provided to the referent and the Chief

of Police.’” (Id. at p. 6)(quoting Shapiro Cert., Ex. H.)

Plaintiffs argue that because Defendants Dixon and Orndorf

participated in these psychological examinations with an

understanding that the evaluations would be disclosed to the Chief

of Police, they had no expectation of confidentiality in their

communications to the examiner and, therefore, the

psychotherapist-patient privilege does not shield the reports from

disclosure. (See id. at pp. 8-9.)

In opposition to the motion, Defendants Farabella,

Orndorf and Millville do not dispute generally the relevance of

the fitness for duty reports to the claims in these cases, but

they argue that only the examiner’s conclusions regarding each

officer’s fitness for duty, and not the reports in their entirety,

are relevant. (Letter from A. Michael Barker, Esq. (hereinafter,

“Defs.’ Opp. Br.”) [D.I. 109 in Civil No. 19-12002, D.I. 93 in

Civil No. 20-1118], Oct. 28, 2021, p. 2.) Defendants Farabella,

Orndorf and Millville assert in this regard that “[a]ll that is

to seal any of the papers submitted in connection with the instant

motions and shall comply with the procedure set forth in Local

Civil Rule 5.3(c) regarding filing such papers on the docket.

relevant is whether or not the psychologist declared the officers

‘fit for duty’” and that “[w]hen the standard for ‘Monell’ is

‘deliberate indifference,’ no Court would criticize a chief of

police for relying on the conclusions reached by a licensed

professional mental health provider.” (Id. at pp. 2-3.) These

defendants further argue that the remainder of each report is not

discoverable because the reports contain information protected by

the psychotherapist-patient privilege. (Id. at p. 3.) In support

of their position, Defendants Farabella, Orndorf and Millville

rely on the decision in Williams v. Miles, No. 18-12973, 2020 WL

3546808, at *1 (D.N.J. June 30, 2020), in which another court found

that fitness for duty reports were not discoverable. (Id.)

Defendants highlight the policy concerns discussed in Williams,

where the court concluded that production of fitness for duty

reports may disincentivize police officers from revealing

sensitive information to an examiner, whereas shielding such

reports from disclosure would encourage officers to speak freely

with an examiner and thereby benefit the community. (Id.) Finally,

Defendants Farabella, Orndorf and Millville acknowledge that “it

is clear the Officers’ understanding was that the sensitive

psychological report would be revealed” to the Chief of Police,

but they argue that “[s]imply because the report was provided to

the Millville Chief of Police does not mean any other person is

entitled to any and all personal issues related to the police

officer.” (Id. at p. 4.) Defendant Dixon joined in the position

taken by Defendants Farabella, Orndorf and Millville in opposition

to Plaintiffs’ motions. (Letter from Thomas B. Reynolds, Esq. [D.I.

112 in Civil Action No. 19-12002, D.I. 96 in Civil Action No. 20-

1118], Nov. 1, 2021, p. 1.)

Federal Rule of Civil Procedure 26 sets forth the

framework for the scope of discovery. “Parties 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[.]” FED.

R. CIV. P. 26(b)(1). However, Rule 26 imposes limitations on the

scope of discovery. A “party seeking to protect the confidentiality

of such information may argue . . . that the information is

protected by an evidentiary privilege. Any material covered by a

properly asserted privilege would necessarily be protected from

discovery[.]” Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000).

“[T]he party resisting discovery has the burden of clarifying,

explaining and supporting its objections.” State Nat’l Ins. Co. v.

Cty. of Camden, No. 08-5128, 2011 WL 13079217, at *3 (D.N.J. Apr.

28, 2011) (internal quotations omitted).

The Court first addresses the relevance of the fitness

for duty reports. Defendants “agree such examinations are

potentially relevant to the ‘Monell’ claims against the City” to

show that the City required its officers to undergo a fitness for

duty examination as part of its hiring process and that the

officers were declared fit for duty by the examiner. (Defs.’ Opp.

Br. at p. 2.) As noted above, however, Defendants argue that the

only relevant section of each report is the examiner’s conclusion,

because the Chief of Police would have relied only on the

conclusion reached by the examiner and would not have “challenge[d]

the conclusions of a licensed mental health professional.” (Id. at

pp. 2, 4.) Defendants note that other police departments in New

Jersey receive only a “pass” or “fail” recommendation regarding an

officer’s fitness for duty, not the examiner’s entire report, which

Defendants argue “highlights just how irrelevant the details of

the reports are.” (Id. at p. 4.)

Under 42 U.S.C. § 1983, a municipality can be liable

“when the alleged constitutional transgression implements or

executes a policy, regulation or decision officially adopted by

the governing body or informally adopted by custom.” Beck v. City

of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)(citing Monell v.

New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978)). “‘Policy

is made when a ‘decisionmaker possess[ing] final authority to

establish municipal policy with respect to the action’ issues an

official proclamation, policy, or edict.’” Id. (quoting Andrews v.

City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). “A

course of conduct is considered to be a ‘custom’ when, though not

authorized by law, ‘such practices of state officials [are] so

permanent and well-settled’ as to virtually constitute law.” Id.

(quoting Andrews, 895 F.2d at 1480). “Claims that a supervisor

failed to train or supervise . . . are generally considered a

subcategory of policy or practice liability.” Martin v. City of

Reading, 118 F. Supp. 3d 751, 773 (E.D. Pa. 2015)(internal

quotations omitted); see also City of Canton v. Harris, 489 U.S.

378, 389 (1989)(“Only where a municipality’s failure to train its

employees in a relevant respect evidences a ‘deliberate

indifference’ to the rights of its inhabitants can such a

shortcoming be properly thought of as a city ‘policy or custom’

that is actionable under § 1983.”).

Here, Plaintiffs have alleged that Chief Farabella “knew

about Dixon’s history of use of force complaints for years” prior

to Plaintiffs’ arrests, and that Farabella “ultimately failed to

take sufficient corrective measures[,]” which allegations the

District Court has found are sufficient to state a claim for

supervisory liability under § 1983. See Capps, 2021 WL 2024998, at

*6, 8. Similarly, the District Court has concluded that Plaintiffs

sufficiently stated Monell claims against the City of Millville in

light of Plaintiffs’ allegations that “Farabella either knew or

should have known that Dixon received use of force complaints at

a rate far higher than other officers in the department, and that

whatever measures he took to correct this issue [were]

insufficient.” Id. at *7, 8. Given the nature of these claims,

evidence concerning whether Chief Farabella knew or was advised of

the defendant officers’ propensity for violence when making

arrests is relevant discovery. Such evidence includes the

psychological evaluations of the defendant officers prior to the

arrests of Plaintiffs Capps and Joyce, which may show whether

Farabella was on notice of these officers’ alleged propensity for

violence. See, e.g., Ashford v. City of Milwaukee, 304 F.R.D. 547,

551 (E.D. Wis. 2015) (“Documents indicating that the City allowed

officers with certain psychological problems to remain on the

street are arguably relevant to the plaintiffs’ Monell claims and

are therefore within the scope of discovery.”); Siegfried v. City

of Easton, 146 F.R.D. 98, 99-100 (E.D. Pa. 1992) (psychological

records of defendant officer conducted when officer interviewed

for employment were “highly relevant and may provide compelling

evidence concerning the city’s knowledge of [the defendant

officer’s] propensity toward violence”). In addition, relevant

discovery also may include psychological records that post-date

the incident at issue because they may demonstrate a pattern by

the City of condoning excessive force by its officers. See Beck,

89 F.3d at 972 (where plaintiff argued that defendant officer

exhibited a pattern of violent and inappropriate behavior and

presented evidence of excessive use of force, including civilian

complaint of incident that occurred after plaintiff’s incident,

Third Circuit noted that such evidence “may have evidentiary value

for a jury’s consideration whether the City and policymakers had

a pattern of tacitly approving the use of excessive force”); see

also Groark v. Timek, 989 F. Supp. 2d 378, 397–98 (D.N.J.

2013)(“Subsequent incidents . . . may be relevant to show a

continuous pattern that supports a finding of an accepted custom

or policy.”). Furthermore, post-incident evidence may be relevant

insofar as it may contain specific admissions or information

concerning the circumstances surrounding the arrests. See Henry v.

Hess, No. 11-2707, 2012 WL 4856486, at *2 (S.D.N.Y. Oct. 12,

2012)(fitness for duty psychological records were discoverable

because they contained information conveyed by officer concerning

circumstances of alleged excessive force).

The Court finds that the fitness for duty reports at

issue here are relevant to the claims in these cases. The 2015

report for Defendant Orndorf, which pre-dated the 2018 arrest of

Plaintiff Capps by several years and was provided to the Chief of

Police, is relevant in the Capps matter to whether Chief Farabella

had notice of Orndorf’s propensity for violence. The 2018 report

for Defendant Dixon, which post-dated the 2018 arrests of

Plaintiffs Capps and Joyce, is relevant in both cases insofar as

it may demonstrate the City’s pattern of condoning excessive force

by Millville police officers. Furthermore, in light of the temporal

proximity of Dixon’s fitness for duty evaluation to the incidents

at issue here,4 the Court also finds the report relevant to

Plaintiffs’ claims because it may contain factual information and

admissions concerning the circumstances of Dixon’s arrests of

Plaintiffs.

Indeed, Defendants do not dispute generally the

relevance of either report to the claims in these cases; they seek

only to limit disclosure to the conclusions of the examiner rather

than the reports in their entirety. The Court rejects Defendants’

argument. Defendants admit that Chief Farabella received the

fitness for duty reports, which shed light not only on the

conclusions of the examiner regarding the officers’ fitness for

duty but also provided Farabella with the facts upon which the

4 The exact date of Dixon’s evaluation is unclear from the record.

The fitness for duty report is dated August 6, 2018 and states

that the evaluation of Dixon occurred on March 10, 2018. (Shapiro

Cert., Ex. F.) Defense counsel has asserted that the evaluation

occurred at some point after April 14, 2018, as set forth in a

letter dated October 1, 2021.(See Pls.’ Letter Br. at p. 4; Shapiro

Cert., Ex. E at p. 2.) In light of Defendants’ letter which asserts

that the evaluation occurred after April 14, 2018, and given that

the evaluation occurred prior to the issuance of the examiner’s

report on August 6, 2018, it is clear that the evaluation occurred

within a few months of the arrests of Plaintiff Capps in February

2018 and Plaintiff Joyce in March 2018.

examiner’s conclusions were based. As such, the reports in their

entirety were available to the Chief of Police to inform any

decision to allow Defendants Dixon and Orndorf to remain employed

as Millville police officers. The Court therefore concludes that

the reports in their entirety, and not just the examiner’s

conclusions, constitute relevant discovery.

The Court next addresses Defendants’ assertion that the

psychotherapist-patient privilege protects the requested material

from disclosure. Evidentiary privileges are governed by Federal

Rule of Evidence 501, which provides that “[t]he common law — as

interpreted by United States courts in the light of reason and

experience — governs a claim of privilege” unless otherwise

provided in “the United States Constitution; a federal statute; or

rules prescribed by the Supreme Court.” FED. R. EVID. 501. Rule 501

further provides that “in a civil case, state law governs privilege

regarding a claim or defense for which state law supplies the rule

of decision.” Id. When a case involves both federal and state law

claims in the same action, federal privilege law applies to all

claims. Pearson, 211 F.3d at 66 (“[F]or the resolution of the

present discovery dispute, which concerns material relevant to

both federal and state claims, Rule 501 directs us to apply federal

privilege law.”). As Plaintiffs bring claims pursuant to both 42

U.S.C. § 1983 and state law in the instant cases, the Court will

apply federal privilege law in deciding the privilege issue.

The United States Supreme Court recognized the federal

psychotherapist-patient privilege in Jaffee v. Redmond, 518 U.S.

1, 15 (1996), holding that “confidential communications between a

licensed psychotherapist and her [or his] patients in the course

of diagnosis or treatment are protected from compelled disclosure

under Rule 501 of the Federal Rules of Evidence.” While

acknowledging the “fundamental maxim that the public . . . has a

right to” every person’s evidence, the Supreme Court in Jaffee

found that “significant public and private interests support[ed]

recognition of the privilege[.]” Id. at 9, 11 (internal quotations

omitted). Specifically, the Supreme Court stated that the

privilege serves the private interest of fostering effective

psychiatric treatment, noting:

Effective psychotherapy . . . depends upon an

atmosphere of confidence and trust in which

the patient is willing to make a frank and

complete disclosure of facts, emotions,

memories, and fears. Because of the sensitive

nature of the problems for which individuals

consult psychotherapists, disclosure of

confidential communications made during

counseling sessions may cause embarrassment or

disgrace. For this reason, the mere

possibility of disclosure may impede

development of the confidential relationship

necessary for successful treatment.

Id. at 10. The Supreme Court in Jaffee further found that the

privilege “serves the public interest by facilitating the

provision of appropriate treatment for individuals suffering the

effects of a mental or emotional problem” as “[t]he mental health

of our citizenry, no less than its physical health, is a public

good of transcendent importance.” Id. at 11.

Under Jaffee, “confidentiality is the foundation upon

which the psychotherapist-patient privilege rests.” Barrett v.

Vojtas, 182 F.R.D. 177, 179 (W.D. Pa. 1998). The privilege attaches

to communications between a therapist and patient in which a

patient has a “reasonable expectation” that the communications

will remain confidential. James v. Harris Cty., 237 F.R.D. 606,

611-12 (S.D. Tex. 2006). By contrast, the privilege does not attach

when a patient has no expectation of confidentiality in

communications to a therapist, because the purpose of the privilege

is to foster effective counseling and “[c]onfidentiality is the

foundation for effective counseling[.].” Barrett, 182 F.R.D. at

181. Accordingly, in considering whether the psychotherapist-

patient privilege applies to communications between a patient and

a therapist, courts generally consider as a “determinative factor”

whether the communication was made with a reasonable expectation

of confidentiality. James, 237 F.R.D. at 611-12.

This Court previously addressed the application of the

psychotherapist-patient privilege in Ward v. Barnes, No. 05-1850,

2007 WL 9782878, at *3 (D.N.J. Sept. 28, 2007), concluding that

the privilege does not apply when the party asserting the privilege

has no reasonable expectation of confidentiality regarding

counseling sessions he received. In Ward, the defendant sought to

quash subpoenas for records issued by the plaintiffs to the

defendant’s medical providers on the basis that such records were

protected by the psychotherapist-patient privilege. Ward, 2007 WL

9782878, at *1. The defendant argued that he had an expectation of

confidentiality with respect to records from a counseling session

or evaluation from one provider because the provider’s website

stated that the therapy program was confidential. Id. The

plaintiffs argued that the privilege did not apply because the

records “were generated to satisfy a specific requirement of [the

defendant’s] employer in order for [the defendant] to keep his

job.” Id. The plaintiffs further argued that the defendant had no

expectation of confidentiality in the records because the

defendant testified at his deposition that he believed the

information from the provider was communicated to his employer to

monitor his progress. Id. This Court in Ward noted that the

psychotherapist-patient privilege “does not protect psychological

records from disclosure . . . when there is no reasonable

expectation of confidentiality.” Id. at *2 (citing Siegfried, 146

F.R.D. at 101; Scott v. Edinburg, 101 F. Supp. 2d 1017, 1020, 1022-

23 (N.D. Ill. 2000)). The Court further concluded that the

defendant failed to demonstrate that the records were protected by

the psychotherapist-patient privilege in light of the defendant’s

testimony that he believed the provider communicated with his

employer about the defendant’s counseling, as such testimony

undermined the defendant’s argument that he had a reasonable

expectation of confidentiality regarding the counseling session.

Id. at *3.

The psychotherapist-patient privilege has been addressed

in the context of discovery of police fitness for duty reports,

and courts that have considered the application of the privilege

in this context have similarly concluded that where an officer has

an expectation of confidentiality in a psychological examination,

the privilege shields the psychological records from disclosure.

For example, in Caver v. City of Trenton, 192 F.R.D. 154 (D.N.J.

2000), the plaintiff police officers alleged that they received

disparate treatment on the basis of race and sought production of

fitness for duty psychological records of a defendant police

officer and four non-party officers, arguing that the

psychological records would demonstrate disparate treatment

received by plaintiffs and those other officers that were referred

for fitness for duty exams. Caver, 192 F.R.D. at 155-56. Noting

that the defendant officer “was told and reassured that the

psychological records and reports would be kept strictly

confidential, and would not be disclosed to the City of Trenton

personnel[,]” the court in Caver found that the defendant “clearly

had an expectation of confidentiality” and concluded that the

defendant’s psychological records were protected by the

psychotherapist-patient privilege. Id. at 162; see also Barrios-

Barrios v. Clipps, No. 10-837, 2011 WL 4550205, at *3 (E.D. La.

Sept. 29, 2011) (finding that defendant police officer’s

psychological report was protected from disclosure by the

psychotherapist-patient privilege because “the evidence

establishe[d] that the one-page psychologist’s report . . . was

intended to be confidential and was actually maintained as

confidential by the Civil Service Department, with none of the

information contained in it having been disclosed to the Police

Department or to [the defendant] himself” and the defendant “had

a reasonable expectation of confidentiality in the report”); Green

v. Taylor, No. 03-1804, 2005 WL 8167545, at *2 (N.D. Ohio May 4,

2005)(plaintiff was not entitled to discovery of psychological

evaluations, noting that “where a police officer undergoes a

psychological evaluation following a fatal shooting, the

psychotherapist-patient privilege is not waived if the only

information provided to the police is whether the officer passed

or failed the exam” and plaintiff “provided no evidence that

information from a psychological evaluation was shared with the

police department in a manner sufficient to waive the privilege”);

Williams v. District of Columbia, No. 96-0200, 1997 WL 224921, at

*2 (D.D.C. Apr. 25, 1997)(where it was represented that

psychiatrist reported back to police department, but did not

disclose any confidential communications and rather gave a “Yes or

No” recommendation regarding whether an officer should return to

active duty, psychiatric records of officer were private and were

protected by psychotherapist-patient privilege).

When an expectation of confidentiality is lacking,

however, courts have concluded that the psychotherapist-patient

privilege does not attach to fitness for duty reports. See, e.g.,

Ashford, 304 F.R.D. at 552 (where plaintiffs asserted claims based

upon alleged unlawful strip searches by Milwaukee police officers,

court found it “doubtful that there would be any confidential

communications between an officer and a psychologist or other

professional who tests or examines an officer for the purpose of

determining whether he is fit for duty[,]” noting that results of

test would likely be “shared with the City, and therefore the

officer will not expect his statements to the examiner to remain

confidential”); Barrett, 182 F.R.D. at 178, 181 (where police

officer alleged to have used excessive force was ordered by city

to attend counseling sessions with a psychiatrist and a

psychologist, court found that conversations and notes taken

during such counseling sessions were not protected by

psychotherapist-patient privilege because “[a] police officer who

is ordered to therapy, knowing that the therapist will report back

to his or her superior, would have no expectation that his or her

conversation was confidential”); Siegfried, 146 F.R.D. at 101 (in

excessive force case, court compelled disclosure of psychological

records of defendant police officer upon finding that the

psychological evaluation of the officer was not confidential,

noting that “when an applicant consults with this psychologist, he

understands that the psychologist will be reporting back to the

police department” and that “[c]onfidentiality between

psychologist and patient is not expected in this situation”).

In opposition to the present motion, Defendants rely on

Williams v. Miles, No. 18-12973, 2020 WL 3546808, at *1 (D.N.J.

June 30, 2020), an excessive force case in which a court found

that the psychological records of a defendant police officer were

protected from disclosure by the psychotherapist-patient

privilege. (See Defs.’ Opp. Br. at pp. 3-4.) Like the above-cited

cases, the lynchpin of the Williams court’s analysis was that the

officer had an expectation of confidentiality in a fitness for

duty exam. Although in Williams there was actual disclosure of the

officer’s psychological records to the police department, the

officer believed that the documents were to be kept confidential

and that disclosure of the report was limited to only a pass/fail

recommendation. Williams, 2020 WL 3546808, at *4. Thus, despite

disclosure to the police department, the court in Williams found

that the psychological records were protected by the

psychotherapist-patient privilege because the defendant officer

had a bona fide expectation of privacy based on the representation

that “his evaluation . . . would remain confidential and would not

be disclosed.” Id.

In the cases presently before the Court, unlike the case

in Williams, the defendant police officers did not have an

expectation of confidentiality with respect to their fitness for

duty evaluations. The examiner’s reports here expressly indicated

that the officers were “advised and understood” that the

evaluations would be provided to the Chief of Police. (See Pls.’

Letter Br. at pp. 5-6.) Indeed, Defendants acknowledge the

officers’ “understanding . . . that the sensitive psychological

report would be revealed” to the Chief. (Defs.’ Opp. Br. at p. 4.)

Accordingly, because the reports were not generated with an

expectation of confidentiality, the cases before the Court are

aligned with the cases that have concluded that the

psychotherapist-patient privilege does not attach to

communications between an officer and a therapist when the officer

had no reasonable expectation of confidentiality in such

communications.

Defendants argue, without citation to any authority,

that because the reports were disclosed only to the Chief of Police

and were not generally disseminated, there was no waiver of the

psychotherapist-patient privilege. (Defs.’ Opp. Br. at p. 4.)

However, the inquiry is not whether disclosure to the Chief of

Police effected a waiver of the privilege, because the privilege

did not attach to the communications in the first instance given

the officers’ knowledge that the reports would be disclosed. This

Court rejects any argument that the privilege should attach because

the officers believed that the content of their evaluations would

only be disclosed to the Chief of Police, as the purpose of the

privilege cannot be served in the absence of a complete

confidential relationship. Indeed, numerous courts have rejected

the same argument raised by Defendants here. See, e.g., Smith v.

City of Plano, No. 01-7111, 2002 WL 1483902, at *2 (N.D. Ill. July

9, 2002)(where officer argued that he did not waive privilege

because he believed information would only be shown to Chief of

Police, court noted that “it is the very fact that he knew the

information would be shown to the Chief that breaks the

privilege”); Barrett, 182 F.R.D. at 181 (“A police officer who is

ordered to therapy, knowing that the therapist will report back to

his or her superior, would have no expectation that his or her

conversation was confidential.”); Siegfried, 146 F.R.D. at 101

(when applicant understands that psychologist will be reporting

back to police department, “[c]onfidentiality between psychologist

and patient is not expected in this situation” and “[i]f a patient

makes a communication expecting it to be disclosed to a third party

who is not involved in the patient’s treatment, the psychologist-

patient privilege does not apply”)(citation omitted).

The Court also rejects Defendants’ argument that the

policy interests articulated in Williams support a finding of non-

disclosure of the fitness for duty reports in these cases. In

Williams, the court cited “significant public policy concerns”

that supported non-disclosure of the defendant officer’s

psychological records, including a “chilling effect on the

evaluative system of police officers who may be suffering from a

psychological condition” and the police department’s “strong

policy interest in maintaining the confidentiality of its

evaluative process, and permitting its officers the opportunity to

obtain unfettered assistance through free communication with

healthcare providers, who in turn ensure officers are fit for

duty.” Williams, 2020 WL 3546808, at *4. These policy concerns,

however, rested on the police department’s policy that the

communications between the police officer and the therapist were

provided in a confidential setting and that the police department

would only receive a “pass” or “fail” recommendation. See id. In

Williams, the court noted that its decision “should not be

construed as prohibitive to disclosure of records in every case”

and that “analyses relating to a confidential relationship must be

examined on a case-specific basis.” Id. at *5. Here, there was no

confidential relationship between the police officers and the

examiner given that the officers were “advised and understood”

that their conversations would be disclosed to the Chief of Police.

(See Pl.’s Letter Br. at pp. 5-6.) Defendants thus fail to

demonstrate that the policy concerns set forth in Williams support

non-disclosure of the psychological records under the

circumstances in the present cases.

Consequently, the Court finds that the psychotherapist-

patient privilege cannot shield from disclosure the defendant

police officers’ fitness for duty reports because these officers

did not have the requisite expectation of confidentiality in their

fitness for duty exams. In so ruling, the Court notes that fitness

for duty reports do not fit squarely under the rubric of

psychotherapist-patient privilege material. As the court in

Ashford explained, “because the tests are being performed for some

reason other than treatment of the officer, such as to determine

whether the officer is fit for duty, the tests are unlikely to

depend [on] an ‘atmosphere of trust and confidence’ in which the

officer ‘makes a frank and complete disclosure of facts, emotions,

memories, and fears’” and the officer may even “have an incentive

to lie in order to produce a favorable result[.]” Ashford, 304

F.R.D. at 552 (quoting Jaffee, 518 U.S. at 10). Another court

likewise concluded that requiring production of fitness for duty

reports does not “detract from the purposes underlying the

privilege as set forth in Jaffee” because such reports are

“categorically different from a psychological evaluation for

purposes of medical diagnosis and treatment.” Barmore v. City of

Rockford, No. 09-50236, 2012 WL 1660651, at *3 (N.D. Ill. May 11,

2012). The court in Barmore explained, “[i]n the latter, an officer

is a patient desiring to get well” whereas “[i]n the former, he is

an employee hoping to keep his job.” Id. “[T]he motivations and

expectations of the officer in providing information will vary

with the nature of the particular evaluation.” Id. Nonetheless,

the Court need not determine at this time whether fitness for duty

reports categorically do not qualify for protection by the

psychotherapist-patient privilege. Even assuming the

psychotherapist-privilege may attach to fitness for duty reports,

Defendants here have failed to demonstrate that the defendant

officers had an expectation of confidentiality in the evaluations

at issue. Accordingly, the Court shall grant Plaintiffs’ motions

to compel and require Defendants to produce the fitness for duty

reports of Defendants Dixon and Orndorf in unredacted form.

CONSEQUENTLY, for the reasons set forth above and for

good cause shown:

IT IS on this 24th day of March 2022,

ORDERED that Plaintiffs’ motions [D.I. 108 in Civil No.

19-12002, D.I. 92 in Civil No. 20-1118] to compel shall be, and

are hereby, GRANTED; and it is further

ORDERED that Defendants shall produce the fitness for

duty reports in unredacted format within ten (10) days of the date

of this Order; and it is further

ORDERED that the parties are directed to comply with

Local Civil Rule 5.3 concerning sealing of material submitted in

connection with Plaintiffs’ motions; and it is further

ORDERED that by April 19, 2022 Plaintiffs shall file on

the docket all papers submitted in connection with the instant

motions that have not already been filed on the docket, including

unredacted briefs and the Shapiro Certification and exhibits

thereto. Plaintiffs may file such documents under temporary seal,

provided that a motion to seal is filed with respect to any

temporarily sealed material in accordance with Local Civil Rule

5.3(c).

s/ Ann Marie Donio

ANN MARIE DONIO

UNITED STATES MAGISTRATE JUDGE

cc: Hon. Renée Marie Bumb