United States District Court, M.D. Pennsylvania
January 30, 2004.
RICHARD B. SIEGEL, Plaintiff
ABBOTTSTOWN BOROUGH and HAMILTON TOWNSHIP, Defendants
The opinion of the court was delivered by: J. ANDREW SMYSER, Magistrate Judge
The plaintiff commenced this action by filing a complaint on April 1,
2003. On May 20, 2003, the plaintiff filed an amended complaint. On
September 4, 2003, the plaintiff filed a second amended complaint. The
plaintiff subsequently filed a third amended complaint.*fn1
The defendants named in the third amended complaint are Abbottstown
Borough and Hamilton Township. The plaintiff alleges the following facts
in his third amended complaint.
The plaintiff was hired by the Abbottstown-Hamilton Joint Police
Department (Police Department) on or about April 1, 2001, as a patrol
officer. Third Amended Complaint at ¶ 21. Todd Dunlap was employed as
a patrol officer for the Police Department for approximately 15 years.
Id. at 522. In the summer of 2001, the plaintiff observed what he
believed to be wrongdoing and waste by Dunlap. Id. at ¶ 23. The
plaintiff reported the waste and wrongdoing that he observed to elected
officials of Hamilton Township and Abbottstown Borough. Id. at ¶ 25.
By a letter dated June 21, 2002, the plaintiff was given notice that
his employment with the Police Department would be terminated effective
June 30, 2002. Id. at ¶ 31. On July 1, 2002, the agreement between
Abbottstown Borough and Hamilton Township regarding the Joint Police
Department expired and the Police Department was disbanded. Id. at ¶
On July 31, 2002, Abbottstown Borough and Hamilton Township entered
into a new agreement for the reinstatement of the Joint Police
Department. Id. at ¶ 33. Under the new agreement, Todd Dunlap was
rehired and given the title of Chief of the Police Department. Id. at
¶ 34. The plaintiff was not
rehired. Id. at ¶ 35. The plaintiff alleges that township and borough
officials voted not to rehire him in retaliation for his reports of waste
and wrongdoing. Id. at ¶ 36.
In February of 2003, Eric Yost was hired as a part-time patrol officer
with the Police Department. Id. at ¶ 37. In March of 2003, Dough
Fishel was hired as a part-time patrol officer with the Police
Department. Id. at ¶ 39. Eric Yost quit his employment with the
Police Department on August 9, 2003 and on October 20, 2003, David Ogle
was hired to replace him. Id. at ¶ 37. The plaintiff alleges that the
public officials voted to hire Yost, Fishel and Ogle instead of him in
retaliation for his reports of waste and wrongdoing. Id. at ¶¶ 38
The third amended complaint contains two counts. Count I is a
42 U.S.C. § 1983 claim that the plaintiff was retaliated against in
violation of the First Amendment for his reports of waste and
wrongdoing. Count II is a claim under Pennsylvania's Veteran's Preference
Act, 51 Pa.C.S.A. 7101 et seq. As relief, the plaintiff is seeking
reinstatement as a patrol officer, back pay and front pay as well as
compensatory and punitive damages.
The parties consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c), and on August 26, 2003, the case was reassigned
to the undersigned magistrate judge. The case is scheduled for a jury
trial beginning on September 7, 2004.
On December 8, 2003, the plaintiff filed a motion for a protective
order. The plaintiff is seeking an order precluding the defendants from
seeking discovery of any psychological evaluations performed on the
plaintiff prior to his employment with the defendants. On December 12,
2003, the plaintiff filed a brief in support of his motion. On January 2,
2004, the defendants filed a brief in opposition to the motion for a
protective order. No reply brief has been filed.
The defendants contend that during the course of discovery in this case
they learned for the first time that, in November of 1999, the plaintiff
"failed" a Minnesota Multiphasic Personality Inventory (MMPI)
psychological evaluation that was required by the Southern Regional Police
Department (a prospective employer) as part of the employment process.
The defendants assert that they served subpoenas on all persons and
entities they believe may possess the written
psychological report. The defendants further assert that they recently
learned that the psychological examination report is in the possession of
the Southern Regional Police Department.
The plaintiff contends that the report is protected by the
psychotherapist-patient privilege,*fn2 that the report should remain
confidential, and that the report is not relevant to the claims in this
In order to adequately address the issues, we believed that we needed
to review the documents at issue in camera. The documents at issue are
not in the possession of any of the parties to this case, but rather are
in the possession of a non-party, the Southern Regional Police
Department. By an Order dated January 2, 2004, we directed the defendants
to provide to the Southern Regional Police Department (to whom they had
issued a subpoena) a copy of the court's order and we
requested that the Southern Regional Police Department comply with the
defendants' subpoena with the modification that the records at issue not
be produced to the defendants but be produced to the court in camera. By
a letter dated January 27, 2004, James C. Childs, III, the Chief of
Police of the Southern Regional Police Department, submitted to the court
in camera the Psychological Report of Michael G. Ditsky and Authorization
form signed by the plaintiff authorizing the release of the results of
his psychological evaluation to Chief James Childs. Ditsky's Report
consists of a completed Commonwealth of Pennsylvania Municipal Police
Officer's Education & Training Commission Psychological Examination
form and a one page type-written report. The Psychological Examination
form contains numerical scores on the MMPI Personality Test taken by the
plaintiff. The one-page report contains Ditsky's interpretation of those
In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court recognized a
psychotherapist-patient privilege under Rule 501 of the Federal Rules of
Evidence. Jaffee involved the discoverability of records concerning
counseling sessions between a police officer and a clinical social worker
after the officer had fatally shot a man. The Court held that
"confidential communications between a licensed psychotherapist and her
patients in the course of diagnosis or treatment are protected from
compelled disclosure under Rule 501 of the Federal Rules of Evidence."
Id. at 15. The Court reasoned that recognizing the privilege serves
important private and public interests. The private interest involved was
the fostering of effective psychiatric treatment. The Court reasoned:
Like the spousal and attorney-client privileges, the
psychotherapist-patient privilege is "rooted in the
imperative need for confidence and trust." Ibid.
Treatment by a physician for physical ailments can
often proceed successfully on the basis of a physical
examination, objective information supplied by the
patient, and the results of diagnostic tests.
Effective psychotherapy, by contrast, 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. As the Judicial Conference
Advisory Committee observed in 1972 when it
recommended that Congress recognize a psychotherapist
privilege as part of the Proposed Federal Rules of
Evidence, a psychiatrist's ability to help her
patients "`is completely dependent upon [the
patients'] willingness and ability to talk freely.
This makes it difficult if not impossible for [a
psychiatrist] to function without being able to assure
. . . patients of confidentiality and, indeed,
privileged communication. Where there may be
exceptions to this general rule . . ., there is wide
agreement that confidentiality is a sine qua non for
successful psychiatric treatment.'" Advisory
Committee's Notes to Proposed Rules, 56 F.R.D. 183,
242 (1972)(quoting Group for Advancement of
Psychiatry, Report No. 45, Confidentiality and
Privileged Communication in the Practice of Psychiatry
92 (June 1960)).
By protecting confidential communications between a
psychotherapist and her patient from involuntary
disclosure, the proposed privilege thus serves
important private interests.
Id. at 10-11.
The Court reasoned that the "psychotherapist privilege serves the
public interest by facilitating the provision of appropriate treatment
for individuals suffering the effects of a mental or emotional problem."
Id. at 11.
The Court's reasoning in Jaffee "clearly shows that confidentiality is
the foundation upon which the psychotherapist-patient privilege rests."
Barrett v. Vojtas, 182 F.R.D. 177, 179 (W.D.Pa. 1998)
Unlike the situation in Jaffee, in the instant case the plaintiff
underwent psychological testing knowing that the
psychologist would report his finding to the Southern Regional Police
Department. Indeed, the very purpose for which the plaintiff underwent
the testing was so that a report could be made to the Southern Regional
Police Department. "If 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." Siegfried
v. City of Easton, 146 F.R.D. 98, 101 (E.D. Pa. 1992)(holding that
psychologist-patient privilege did not apply to psychological records of
police officer where it was understood that the psychologist would be
reporting back to the police department). Knowing that the psychologist
would report his findings to a third party, the plaintiff did not have a
reasonable expectation that those findings and test results would be
privileged. See Kamper v. Gray, 182 F.R.D. 597, 599 (E.D.Mo. 1998)(holding
that report of psychological evaluation of applicant for position of
undercover police officer not protected by privilege where it was
understood results of evaluation would be submitted to employer). See
also Phelps v. Coy, 194 F.R.D. 606, 608 (S.D.Ohio 2000)(holding that
records regarding psychiatric evaluations of police officer not
confidential and thus not privileged because communications were
disclosed to police officer's employer); Barrett, supra,
182 F.R.D. at 181 (holding that conversations and notes taken during
counseling sessions after police officer shot a citizen were not
privileged where officer did not have an expectation of confidentiality in
his treatment because it was known that the psychologist and psychiatrist
would report back to the municipality employing the officer).
Because the plaintiff underwent the psychological testing knowing that
the results would be disclosed to a third party, we hold that the report
is not privileged.
Although we conclude that the report is not privileged, we nevertheless
conclude that the report should not be disclosed.
Federal Rule of Civil Procedure 26(c) provides that upon good cause
shown the court "may make any order which justice requires to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense, including . . . that the disclosure or discovery not
In the instant case, disclosure of Ditsky's report may embarrass the
plaintiff. Also, although the plaintiff knew
that the report would be disclosed to the Southern Regional Police
Department, the release signed by the plaintiff indicates that the
plaintiff had an expectation that the report would otherwise remain
confidential. In such a situation, as the court in Caver v. city of
Trenton, 192 F.R.D. 154 (D.N.J. 2000), noted, disclosure may be
detrimental to the public good:
Police Officers are required to undergo
psychological evaluations in order to determine
whether they are mentally fit to be police officers.
This testing is performed not only to benefit the
officer's mental well-being, but more importantly, to
ensure the safety of the community by protecting its
citizens from police officers whose mental instability
poses a risk to public safety. If police officers know
that their psychological records may be disclosed to
the public, there exists a likelihood that they would
not be completely candid when speaking to a mental
health professional. This lack of candor would, in
turn, defeat the purpose for psychological
evaluations, which is, determining mental fitness for
the job. The Court recognizes that the public has an
interest in knowing whether their police are mentally
fit for the job, but disclosure of actual
psychological records is not necessary and would have
a chilling effect on frankness between patient and
psychologist. If police officers are not completely
honest when speaking to a mental health professional,
it will make it more difficult for the mental health
professional to accurately evaluate the mental status
of a police officer, and to ensure public safety.
. . . disclosure would chill the candor between
the police officer and the psychologist necessary
for effective diagnosis and evaluation.
Id. at 163.
Also, the defendants have failed to convince the court that the report
may lead to the discovery of evidence that is relevant to the claims in
this case. The defendants contend that the report is potentially relevant
to the plaintiff's Veteran's Preference Act claim; more specifically, to
the issue whether the plaintiff was qualified for the position at issue.
However, there is no dispute that the plaintiff had a valid certification
from the Municipal Police Officers' Education & Training Commission.
The defendants did not send the plaintiff to Ditsky for testing and the
defendants have not asserted that they required anything more (in the way
of psychological tests) than certification from the Commission.
IT IS ORDERED that the plaintiff's motion (doc. 50) for a protective
order is GRANTED and that the defendants are prohibited from seeking the
psychological report of Michael G. Ditsky.