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Korff v. City of Phoenix

United States District Court, D. Arizona

July 1, 2015

Lynne Korff, Plaintiff,
City of Phoenix, et al., Defendants.


EILEEN S. WILLETT, Magistrate Judge.

The Court has considered Plaintiff's Motion to Compel Defendant Tiger's Relevant Medical Records (Doc. 194), Defendant Tiger's Response (Doc. 214), Plaintiff's Reply (Doc. 231), and Plaintiff's Motion for the Honorable Court to Determine Whether Portions of Plaintiff's Motion to Compel Should Be Filed under Seal (Doc. 195). The matter is deemed submitted for decision.


This is a wrongful death and 42 U.S.C. ยง 1983 claim brought against the City of Phoenix and named City of Phoenix Police Officers for damages arising from the shooting death of Plaintiff's son. Plaintiff's Motion to Compel fails to comply with LRCiv 37.1, Rule 37(a)(1), Fed. R. Civ. P., and LRCiv 7.2(j). Counsel for Plaintiff asserts that Plaintiff has satisfied the meet and confer requirement, and counsel have attempted to resolve the issue regarding disclosure of Defendant Tiger's medical records. Rule 37(a)(1), Fed.R.Civ.P. Counsel for Defendant Tiger asserts that no one "picked up the phone." Defendant agrees that the issue most probably would not have resolved without the Court's intervention. The briefs of counsel demonstrate a lack of agreement on the issue of production of Defendant Tiger's medical records. Though the Court could deny without prejudice the Motion to Compel (Doc. 194), allowing leave to re-file with the appropriate certificate of counsel and attached discovery requests and responses, the Court now has the substance of the required documentation and has read the briefing of counsel. In the interests of judicial economy, the Court will reach the merits of the Motion to Compel (Doc. 194) without requiring the parties to re-file.

Plaintiff seeks the names of Defendant Tiger's treating medical, psychological, psychiatric, and pharmacy providers from 2008 until the date of Defendant Tiger's death. Plaintiff further seeks signed medical authorizations for all providers identified. Plaintiff bases her request on documentation written by a Family Court advisor which Plaintiff argues suggests that Defendant Tiger at the time of the shooting death of Plaintiff's son drank alcohol to excess, had recently separated from his wife, had a history of anxiety, and was prescribed medication which may have affected his ability to carry a weapon pursuant to departmental police policy. Defendant Estate of Tiger argues that all medical and mental health records of Defendant Tiger are absolutely privileged and not discoverable. Defendant cites the Court to Jaffee v. Redmond, 518 U.S. 1 (1996).

The Court has ruled that the events immediately leading up to the shooting of the decedent are in dispute. See Orders of the Court dated March 25, 2015 (Doc. 192), March 16, 2015 (Doc. 185), April 1, 2015 (Docs. 198, 199), and April 2, 2015 (Doc. 202). Discovery regarding those events is, therefore, relevant. See Boyd v. City & Cnty of San Francisco, 516 F.3d 938 (9th Cir. 2009); Graham v. Connor, 490 U.S. 386 (1989). Relevant information need not be admissible at trial to be discoverable provided it is reasonably calculated to lead to the discovery of admissible evidence. See Fed.R.Civ.P. 26(b)(1). Plaintiff argues that Defendant Tiger's alleged substance abuse, mental health, and prescribed medication during the period immediately prior to and at the time of the shooting are, therefore, relevant. Whether Defendant Tiger was impaired at the time of the shooting and whether he was authorized under police departmental policy to carry his weapon on June 4, 2012 are relevant areas of inquiry for discovery. Rule 26, Fed. R. Civ. P., however, does not permit the discovery of otherwise privileged information.


1. Identification of Medical, Mental Health, and Pharmacy Providers Interrogatory

The Court finds that Plaintiff has alleged both a state and federal law claim in her Amended Complaint (Doc. 1-1 at 63-71). By Notice of Dismissal dated November 8, 2013 (Doc. 1-1 at 74-75), Plaintiff voluntarily dismissed her state law claim as to Defendant Tiger. Defendants removed the case to federal court by Notice of Removal filed on November 13, 2013 (Doc. 1). By Order issued on March 26, 2014 (Doc. 24 at 5), the Court found that Plaintiff's vicarious liability claim against the City of Phoenix survived Defendant's Motion to Dismiss.

Fed. R. Evid. 501 provides that "[t]he common law - as interpreted by the United States courts in the light of reason and experience - governs a claim of privilege.... But in a civil case state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Though Plaintiff alleges both a state law claim and a federal claim, the Court finds that the same evidence relates to both claims raised. Therefore, the federal court is not bound by Arizona law on the issue of privilege. Instead, federal privilege law will govern. Wilcox v. Arpaio, 753 F.3d 872, 876 (9th Cir. 2014) (citing Agster v. Maricopa Cnty, 422 F.3d 836, 839 (9th Cir. 2005)).

The Court finds that "[t]here is no physician-patient privilege recognized under federal common law or in the Ninth Circuit." Sanders v. Energy Northwest, No. 12-cv-0580-TOR, 2013 WL5674885, at *2 (E.D. Wash Oct. 17, 2013) (citing In Re Grand Jury Proceedings, 801 F.2d 1164, 1169 (9th Cir. 1986)). The psychotherapist-patient privilege identified in Jaffee only protects communications between a patient and his licensed treating psychologist, psychiatrist, and social worker. 518 U.S. at 15. The privilege does not protect the identity of the providers. See Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 230 (D. Mass. 1997) (noting privilege covers content of communications, not the fact that the communications occurred).

Defendant must answer Plaintiff's Interrogatory #1 dated February 20, 2015. Plaintiff's Motion to Compel (Doc. 194) will be granted as to Interrogatory #1 dated February 20, 2015.

2. Request for Production of Signed Authorizations

As no physician-patient privilege exists in federal law between Defendant Tiger and his medical doctors, doctors of osteopathic medicine, physicians, physician assistants, nurses, nurse practitioners, or pharmacists, Defendant Tiger's records as to these providers are not privileged. All records of treatment received subsequent to the date of the shooting are deemed irrelevant. Therefore, Defendant Tiger's Estate must provide signed authorizations for treatment records of the above providers in existence for care received from January 1, 2008 through June 4, 2012. Records sought from Defendant Tiger's licensed treating psychologists, neuropsychologists, and psychiatrists are privileged and not ...

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