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Kevin Furey v. Police Officer Travis Wolfe

March 15, 2012


The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge


In this action, Plaintiff Kevin Furey ("Plaintiff") alleges that his civil rights were violated by Police Officer Travis Wolfe ("Officer Wolfe"), the City of Philadelphia ("the City"), and Philadelphia Police Commissioner Charles Ramsey ("Commissioner Ramsey") (collectively, "Defendants"), as a result of Officer Wolfe making an off-duty arrest of Plaintiff in the early morning hours of April 5, 2008, and that he suffered physical and emotional damages as a result. Presently before the court are Plaintiff's Motion to Quash Defendants' Subpoenas to Norristown Hospital and Vicki Morrow, M.D. (Doc. 85), Defendants' response thereto filed under seal (Doc. 97), and Plaintiff's reply (Doc. 123). For the reasons that follow, the motion will be denied.


On March 10, 2010, Plaintiff commenced this action in the Philadelphia Court of Common Pleas, and on April 23, 2010, Defendants removed it to this Court. See Doc. 1. Plaintiff alleges that his civil rights were violated pursuant to 42 U.S.C. § 1983. See Compl. at First Cause of Action. Plaintiff also alleges various state law claims against Officer Wolfe. Id. at Second Cause of Action. Among other things, Plaintiff alleges that Officer Wolfe unlawfully used force against him without probable cause to believe he had committed a crime, assaulted Plaintiff, subjected him to an unlawful arrest, and committed perjury.See id. ¶¶ 9-16. Plaintiff further alleges that Officer Wolfe's conduct was the result of policies, practices and customs and deliberate indifference on the part of the City and Commissioner Ramsey. See id. at First Cause of Action.

Most relevant for purposes of the present motion, Plaintiff alleges that he "suffered and continues to suffer . . . psychological harms, pain and suffering . . . which may be permanent." See Compl. ¶ 28. In addition, Plaintiff testified at his deposition that as a result of his arrest, his dormant Lyme disease was exacerbated and he suffered memory problems, cognitive dysfunction and severe emotional distress. See Doc. 97 Exh. D ("Pl.'s Dep.") at 27-28, 34-35, 38, 55-56, 61-62, 75, 107-09. Plaintiff received psychiatric treatment at Norristown Hospital and from Dr. Morrow.

On June 30, 2011, Plaintiff's counsel received copies of subpoenas addressed to Norristown Hospital and Dr. Morrow, requesting medical and billing records for Plaintiff.

On July 11, Plaintiff filed a motion to quash Defendants' subpoenas, arguing that the subpoenas seek information protected from disclosure by the Federal Health Insurance Portability and Accountability Act of 1996 ("HIPPA"), 29 U.S.C. § 1181 et seq., the psychotherapist-patient privilege, and state law regarding the release of treatment records from treating psychotherapists. See Doc. 85. On July 19, 2011, Defendants filed a response to the motion under seal, arguing that Plaintiff waived any assertion of privilege by pursuing damages for emotional injury. See Doc. 97. Following a court-ordered stay of discovery, which was lifted by Order dated January 11, 2012 (see Doc. 118), Plaintiff filed a reply in support of his motion to quash or, in the alternative, seeking in camera review of the records sought. See Doc. 123.


Plaintiff's motion to quash implicates both his psychiatrist's records and psychiatric hospital records. I will consider each in turn, followed by Plaintiff's request for in camera review of the documents sought.

A. Psychiatrist's Records

Plaintiff first seeks to quash Defendants' subpoena for his psychiatric medical records. Under the Federal Rules of Civil Procedure, "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Fed. R. Civ. P. 26(b)(1). Relevance, in turn, is "construed broadly so as to encompass any matter that bears on, or that reasonably could lead to other matter that bears on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Furthermore, evidence does not need to be admissible at trial in order to be discoverable, but rather it needs to be "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

Rule 26(b)(1) further provides that privileged matter is not discoverable. Privilege, in turn, is governed by the Federal Rules of Evidence. Rule 501 provides that, generally, the common law governs a claim of privilege. See Fed. R. Evid. 501. In Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996), the United States Supreme Court recognized the psychotherapist-patient privilege. The Court stated:

Because we agree with the judgment of the state legislatures and the Advisory Committee that a psychotherapist-patient privilege will serve a "public good transcending the normally predominant principle of utilizing all rational means for truth," we hold 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 (quoting Trammel v. United States, 445 U.S. 40, 50 (1980)). The privilege, however, can be waived by ...

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