Opinion
Case No. 1:02-CV-275
December 16, 2003
OPINION
This matter is before the court on the municipal defendants' motion for a protective order (docket no. 97) and defendant Glen Peterson's motion for a protective order (docket no. 122).
Chief Harry P. Dolan, Lt. Daniel Mills, Capt. Pamela Carrier, Lt. Rebeca Whitman, Lt. Carol Price, Sgt. Charlotte Mason, Kurt Kimball, and City of Grand Rapids.
On April 25, 2003, the court granted the municipal defendants' motion for protective order insofar as it sought an ex parte in camera review of the ten (10) "fitness for duty evaluations" of police officers that are not parties to this litigation. See Order (docket no. 135). The court then consolidated the remainder of the motion on the issue of granting a protective order with defendant Peterson's motion for a protective order. Id.
In their motion, municipal defendants seek a protective order pursuant to FED. R. CIV. P. 26(c) with respect to the fitness for duty evaluations of Grand Rapids Police Officers performed by defendant Peterson since 1987. In his motion, defendant Peterson seeks a protective order pursuant to Rule 26(c) "that he not be required to disclose information or materials related to fitness for duty examinations of any police officers other than the named Plaintiffs." The court has performed an in camera review of the requested psychological evaluations. For the reasons stated below, defendants' request for a protective orders shall be granted.
I. Standard of Review
FED. R. Civ. P. 26(b)(1) allows parties to "obtain discovery regarding anymatter, not privileged, which is relevant to the claim or defense of any party." Material is discoverable if it is "relevant to the subject matter" of the action or is "reasonably calculated to lead to the discovery of admissible evidence." Id. Under FED. R. EVID. 401, "relevant evidence" is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The broad ranging discovery under Rule 26(b) can be restricted by issuance of a protective order pursuant to FED. R. Civ. P. 26(c), which provides in pertinent part that
[u]pon motion by a party . . . and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.
A party seeking a protective order under Rule 26(c) bears the burden of demonstrating "good cause" required to support such an order. See Nix v. Sword, No. 00-3033, 2001 WL 599707 at *2 (6th Cir. May 24, 2001); General Dynamics Corp. v. Seib Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973); Trans Pac. Ins. Co. v. Trans-Pac. Ins. Co., 136 F.R.D. 385, 391 (E.D.Pa. 1991). "[T]he party seeking the protective order must show good cause by demonstrating particular need for protection. Broad allegations of harm unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Lewis v. St. Luke's Hosp. Ass'n, No. 96-4147, 1997 WL 778410 at *4 (6th Cir. Dec. 9, 1997), quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3rd Cir. 1986).
A defendant may demonstrate good cause for issuance of a protective order under Rule 26(c) by demonstrating that the requested material is not relevant to the claims raised in the plaintiffs suit. See, e.g., Samad v. Jenklns, 845 F.2d 660 (6th Cir. 1998) (contents of file prepared by employer for possible employment termination proceedings had no impact on plaintiff's ability to demonstrate denial of a federal civil rights claim); Cavens v. City of Trenton, 192 F.R.D. 154 (D.N.J. 2000) (contents of psychological evaluations of non-party white police officers not relevant to discrimination claims of minority police officers claiming disparate treatment); Eagle Industries, Inc., v. Ransburg Corp., 124 F.R.D. 197 (S.D. Ind. 1989) (actual content of confidential information which defendant corporation failed to disclose to plaintiff shareholders, which allegedly included proprietary information and trade secrets, was not neither relevant nor necessary to prove the plaintiffs' claims that the defendant breached a fiduciary duty by not disclosing confidential information to the plaintiffs to enable them to submit a higher bid to purchase the defendant corporation).
II. Discussion
In their motion for a protective order, municipal defendants object to the disclosure of the ten evaluations because (1) the evaluations would not lead to any evidence that is probative of the issues in the present suit, and (2) an examination invades "certain privacy rights' of the current and former police officers that were the subject of the evaluations. Municipal defendants' Brief at 6-7. Specifically, municipal defendants argue that the motivation of the individual city defendants in referring plaintiffs for fitness of duty evaluations "has nothing to do with the actual outcome of the psychological examination." Municipal Defendants' Brief at 6. In addition, the ten psychological evaluations subject to the motion for a protective order "involve different people in different states of psychological disrepair, which should not be probative of the retaliatory motive issue which affects [defendants]." Id. In their supplemental briefing, municipal defendants point out that the analysis of the ten psychological evaluations would open up additional issues for factual exploration in both discovery and trial, and would result in several "mini trials" providing no probative information for the finder of fact. Municipal Defendants' Supplemental Brief at 3.
For his part, defendant Peterson objects to plaintiffs' second interrogatories and requests for production of documents directed to him and dated March 3, 2002, requesting "the names of all GRPD officers referred to Dr. Peterson for an FEDE in the last 20 years, and the production of any reports, notes, raw data, test scores and other information relied upon or generated by Dr. Peterson in the course of performing the FEDE." Defendant Peterson's Brief in support of motion for protective order at 2. Dr. Peterson claims (1) that he is ethically prohibited from disclosing this information under the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, (2) that regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 ( 45 C.F.R. § 164.502) prevent the disclosure of this protected "health information," (3) that the disclosures are not relevant, and (4) that the disclosures are not likely to lead to the discovery of admissible evidence. Id. at 3-5. With respect to the relevancy issue, Dr. Peterson states that the evaluations are not relevant to plaintiffs' discrimination claims, because plaintiffs must demonstrate that the doctor gave a different psychological assessment to an officer that was psychologically similarly situated in all respects to plaintiffs. Defendant Peterson's Brief at 5-6. Defendant Peterson contends that the other officers were not sufficiently similar in all relevant respects to use as comparable subjects for plaintiffs' claims.
Plaintiffs contend that they are entitled to the evaluations for two reasons. First, they contend that the municipal defendants agreed to provide the documents, and refused disclosure only after Dr. Peterson was named as a defendant in this matter. Second, plaintiffs contend that these evaluations are relevant to demonstrate how other officers have been referred for fitness for duty, which, in turn, is relevant to the First Amendment and retaliation claims. Plaintiffs apparently contend that municipal defendants selected officers to be evaluated by defendant Peterson without any set or written policy, that the municipal defendants picked only portions of files to present to defendant Peterson, and the municipal defendants deliberately concealed information that would be helpful to a finding that they were fit for duty. Plaintiffs' Brief in support of reply to motions for protective order at 10. Plaintiffs also claim that defendant Peterson believes what his client (i.e., defendant City) tells him, "automatically takes their view of the officers," notes his personal dislike for them and "uses their enforcement of their civil rights as the source and focus of his opinions as to lack of fitness for duty." Id.
A. Municipal defendants' motion for protective order
The court finds that municipal defendants have shown good cause for issuance of a protective order under Rule 26(c), in that the evaluations of non-party officers are not relevant to plaintiffs' claims against them. Plaintiffs' claims against the municipal defendants relate to the process of referring female officers to Dr. Peterson and post-evaluation employment decisions. Plaintiffs' most recent complaint includes the following claims. In Counts I and II, brought pursuant to 42 U.S.C. § 1983, plaintiffs' allege that municipal defendants retaliated against them for exercising their First Amendment rights to free speech and to petition. In Count III, plaintiffs allege a claim of intentional infliction of emotional distress. In Count IV, plaintiffs allege a claim of sex discrimination and retaliation under Title VII. Finally, in Count V, plaintiffs allege sex discrimination and retaliation under Michigan law (the Elliott Larsen Civil Rights Act).
The allegations set forth in ¶¶ 71 and 72 of plaintiffs' "second amended complaint" (docket no. 148) relate to the referral of officers for psychological evaluations, while the allegations in ¶¶ 73 and 74 relate to the post-evaluation treatment of the female officers. In ¶ 71, plaintiffs allege that male officers "with serious mental/emotional health issues" and "apparently actively suicidal officers have been permitted to continue to work without any referral for fitness for duty evaluations." In ¶ 72, plaintiffs allege that the municipal defendants have a history of referring "female police officers who complain of sexual harassment/discrimination and illegal actions on the part of the City" to Dr. Peterson for "fitness for duty" or "disability" evaluations. In ¶ 73, plaintiffs contend that the referrals of female officers "inevitably result in the female officers being placed off duty and forced to take a disability pension and simply leave law enforcement altogether." Finally, in ¶ 74, plaintiffs allege that "[t]his appears to clearly be the intent and plan here, carried out by the City and the individual Defendants acting in concert."
Plaintiffs contend that the following inquiries are relevant to their claims:
1. What has/does the City [of Grand Rapids] usually give Dr. Peterson for these types of evaluations?
2. What sort of behavior or speech by officers, or mental health counseling for officers, or discipline of officers triggers these fitness for duty evaluations?
3. In cases of serious, manifest mental health problems, family stresses, violent behavior and medical issues, what does the City do with its officers?
4. Does it treat males differently than females?
5. Do referrals made in the last several years show that men are only sent when criminal activity appears, but women are sent for merely raising the possibility that they are being discriminated against illegally?
Plaintiffs' Reply at 11. Plaintiffs further state that their counsel "is not interested in the `salacious' details of these officers' mental health issues, but rather in why, if and when the officers were referred for counseling and fitness for duty by the City [of Grand Rapids] for same." Id. at 13.
After performing an in camera review of the psychological evaluations at issue, and consideration of plaintiffs' allegations, the court concludes that these evaluations are not relevant to plaintiffs' claims. The records reviewed by the court do not demonstrate "why, if and when" the officers were referred for a fitness for duty examination. In addition, these evaluations do not address how municipal defendants referred the officers for evaluation or any post-evaluation employment decisions made with respect to the officers. In summary, the information contained in these evaluations is not relevant, because the information does not have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." See FED. R. EVID. 401.
In reaching this determination, the court has considered the opinion in Cavens v. City of Trenton, 192 F.R.D. 154 (D. NJ. 2000). In Cavens, the court discussed the relevance of police psychological evaluations of non-parties to a case involving civil rights claims. In Cavens, black police officers alleged, among other claims, that the defendants implemented policies and practices that treated the black officers differently from similarly situated white officers. As part of their proofs, plaintiffs sought to obtain the psychological reports and records of a defendant police officer and four non-party white officers. The court found that the requested psychological evaluations were not relevant to plaintiffs' claims that they were being treated differently from similarly situated white officers. In reaching this determination, the court noted the relationship between the content of the psychological evaluation and the subsequent disciplinary action taken by the police department:
The Court finds that evidence of alleged disparate treatment in connection with psychological evaluations, would be found in whatever disciplinary action the Police Department takes based on the final diagnosis of "pass" or "fail." For sake of argument, if a "pass" or "fail" is determinative of whether a police officer is retained or fired, and a white officer receives a "fail" and is retained, and a black officer receives a "fail" and is fired, then this may be circumstantial evidence of disparate treatment. It is not necessary to examine the underlying psychological records to make out a case of disparate treatment because the underlying records themselves had no impact on the end result.Cavens, 192 F.R.D. at 164. The court finds that reasoning in Cavens is applicable to plaintiff's claims in the present case.
Plaintiffs suggest that the court should follow the decision in Smith v. City of Piano, No. 01 C 7111, 2002 WL 1483902 (N.D. Ill. July 9, 2002), in which trial court denied a motion to quash a subpoena for the psychiatric evaluation of a police lieutenant in a racial discrimination case. Contrary to plaintiffs' assertion that the Smith case is "very similar" to theirs, the court finds the Smith decision to be clearly distinguishable from plaintiffs' case. In Smith, the subpoena sought the psychological evaluation a defendant, who was ordered to undertake a fitness for duty examination after other officers complained that the defendant was mistreating them. Unlike the present case, the defendant in Smith did not raise an objection to relevance; rather, the defendant objected to the subpoena on the ground of doctor-patient privilege. Here, however, plaintiffs seek psychological evaluations performed on non-parties, who underwent evaluations for matters unrelated to plaintiffs' claims. Under these circumstances, the Smith decision does not support plaintiffs' claims.
B. Defendant Peterson's motion for protective order
Next, the court finds that defendant Peterson has shown good cause for issuance of a protective order under Rule 26(c), in that the evaluations of non-party officers are not relevant to plaintiffs' claims against him. The court adopts the reasoning in section II. A., supra, to the extent that plaintiffs' characterize defendant Peterson as a state actor. The court also notes that two counts are directed solely at the doctor: Count VI (tortious interference with plaintiffs' contractual relations) and Count VII (negligence).
In Count VI, plaintiffs allege that defendant Peterson "violated [their] right to be free from interference in their contractual relationship" with their employer. Second Amended Compl. at ¶ 187. Plaintiffs allege that defendant Peterson gave the City of Grand Rapids improper advice to refer plaintiffs for a fitness for duty examination, crafted biased and false reports recommending that plantiffs' were not fit for duty, intentionally falsified results so that plaintiffs would not be permitted to return to work, relied on hearsay accounts of police officers being sued by plaintiffs, ignored evidence of discriminatory behavior which caused plaintiffs' mental and emotional distress, and prejudged plaintiff Denhof and recommended her termination before clinically evaluating her. Id. at ¶ 190. Plaintiffs allege that defendant Peterson's improper conduct resulted in the constructive discharge of plaintiffs. Id. at ¶ 191.
In Count VII, plaintiffs allege that defendant Peterson breached his duty owed to plaintiffs "to follow the standards and principles pertinent to performing fitness for duty evaluations," including but not limited to
failing to properly evaluate the testing performed and failing to provide opinions accurately based upon the test results, failing to allow personal feelings to interfere with his decision-making and opinions, failing to remain objective, and otherwise negligently performing the examination/evaluation.Id. at ¶¶ 194-95.
The claims set forth in Counts VI and VII relate to defendant Peterson's actions only as to the plaintiffs in this case. Under Michigan law, plaintiffs must prove the following elements to prevail on a tortious interference with a business relationship claim:
(1) the existence of a valid business relation (not necessarily evidenced by an enforceable contract) or expectancy; (2) knowledge of the relationship or expectancy on the part of the defendant interferer; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resulting damage to the party whose relationship or expectancy has been disrupted.Wausau Underwriters Ins. Co. v. Vulcan Development, Inc., 323 F.3d 396, 404 (6th Cir. 2003). Plaintiffs have failed to articulate how the psychological records of other officers relate to these claims. The court finds no conceivable relationship between the information contained in the psychological evaluations of the non-party officers and the question of whether defendant Peterson tortiously interfered with plaintiffs' employment contracts.
Similarly, plaintiffs have not articulated how the psychological evaluations of non-party officers is relevant to their negligence claim against defendant Peterson. To state a prima facie case of negligence in under Michigan law, plaintiffs must establish the following four elements: (1) that the defendant owed the plaintiff a duty; (2) that the defendant breached that duty; (3) that the defendant's breach caused the plaintiff's harm, which includes (a) cause in fact and (b) legal, or proximate, cause; and (4) damages to the plaintiff. Hunley v. DuPont Automotive, 341 F.3d 491, 496 (6th Cir. 2003); Case v. Consumers Power Co., 463 Mich. 1,615 N.W.2d 17, 20 n. 6 (2000). The information contained in the unrelated evaluations performed by defendant Peterson does not tend to prove that he owed a duty to plaintiffs, that he breached that duty, that plaintiffs were harmed or that plaintiffs were damaged. The fact that defendant Peterson examined other officers, and then found those officers either fit or unfit for duty, has no bearing on whether he was negligent in his evaluation of plaintiffs.
Accordingly, municipal defendants' motion for a protective order pursuant to FED. R. CIV. P. 26(c) (docket no. 97) and defendant Peterson's motion for protective order pursuant to FED. R. CIV. P. 26(c) (docket no. 122) will be GRANTED, and a protective order entered contemporaneously herewith.