United States District Court, D. Vermont
ERNEST SIMURO, and ERNEST SIMURO On behalf of K.S., a minor, Plaintiffs,
LINDA SHEDD, ERIN KEEFE, JANET MELKE, TOWN OF WINDSOR, DOES I through X, Defendants.
ORDER AND OPINION
WILLIAM K. SESSIONS, III, District Judge.
Plaintiffs Ernest Simuro and his grandson, K.S., bring claims under 42 U.S.C. § 1983 and Vermont law stemming from Simuro's arrest and prosecution on allegations that he sexually abused his daughter and grandson.
Defendant Linda Shedd subpoenaed Plaintiff's expert witness, Philip J. Kinsler, Ph.D., to produce a list of previous cases in which he was retained as an expert witness and files related to those cases. Dr. Kinsler moves to quash the subpoena. Subsidiary issues include choice of law, whether the subpoena complied with notice requirements, whether the subpoena should have included fees and allowances, and whether the subpoena was sufficiently improper to warrant sanctions.
For the reasons set out below the Motion to Quash is granted as to the transcripts of Dr. Kinsler's prior deposition and testimony and denied as to Dr. Kinsler's prior expert reports. The Motion is denied as moot regarding the production of Dr. Kinsler's complete files and a list of cases in which Dr. Kinsler served as an expert.
Plaintiffs are suing Linda Shedd, a law enforcement officer for the Town of Windsor; Erin Keefe and Janet Melke, social workers employed by the Vermont Department of Children and Families ("DCF"); the Town of Windsor; and Does I through X. Shedd and Keefe interviewed the alleged victim in the course of investigating child sexual abuse allegations against Simuro. Plaintiffs contend that the interviews were conducted improperly and that this contributed to Simuro's wrongful arrest and prosecution, and DCF's seizure of K.S.
Plaintiffs retained Dr. Kinsler, a licensed psychologist, as an expert witness to opine on whether Shedd and Keefe used proper interview techniques. Dr. Kinsler has testified or been deposed in a number of other child sexual abuse cases and has generated "notes and other information" for these cases that include sensitive confidential information. Dr. Kinsler's Mot. to Quash Ex. 1 ¶¶ 5, 14 [hereinafter "Mot. to Quash"].
Defendant Shedd's attorney, Kaveh Shahi, deposed Dr. Kinsler on May 15, 2014. Afterwards Shahi asked Plaintiff's counsel for documents mentioned in the deposition. Def.'s Resp. to Mot. to Quash Ex. 3 [hereinafter "Def's Resp"]. When the documents were not produced, Shahi issued a subpoena instructing Dr. Kinsler to deliver his "complete file[s] (paper and electronic)" for three cases mentioned in the deposition and a "list of all files where [Dr. Kinsler had] been hired to do a forensic evaluation of the interview of a child sexual abuse victim" to Shahi's Rutland office. Subpoena, August 4, 2014. Dr. Kinsler secured counsel, who informed the parties of his intention to file a motion to quash the subpoena. Shahi suggested they could "work out" the problem. Def.'s Resp. Ex. 3 at 5.
Dr. Kinsler filed a Motion to Quash on the grounds that: (1) the information sought is confidential and privileged, (2) the subpoena failed to comply with New Hampshire notice requirements, and (3) the subpoena failed to include appropriate fees and allowances. Mot. to Quash at 1. The Motion also asks the Court to sanction Shedd by ordering her to reimburse Dr. Kinsler for lost earnings associated with the May 15 deposition and for attorney's fees in responding to the subpoena. Id. at 2.
In her response to the Motion Shedd retreated from her initial request for Dr. Kinsler's "complete file[s], " stating that "she is only requesting previous reports/testimony" from the three cases and "the current list of cases the expert testified in...." Def.'s Resp. at 8. Dr. Kinsler replied that he does not have transcripts of his depositions or testimony from these cases, that his expert report for one of the cases is apparently filed under seal, and that his reports were not entered into evidence in the other two cases. Dr. Kinsler's Repl. Ex. A, Ex. B. He added that he has given Defendant a list of cases in which he testified as an expert witness, highlighting cases in which he performed forensic interviews of a child sexual abuse victim, and that the dispute over the list is therefore moot. Id. at 1 n.1.
A. Choice of Law
Dr. Kinsler and Shedd dispute what law applies regarding privilege. In another case in this district, the court held that, under Federal Rule of Evidence 501, federal psychotherapist-patient privilege applies where the cause of action arises under federal law. Gabriel v. Albany Coll. of Pharmacy & Health Sciences - Vermont Campus, 2:12-CV-14, 2014 WL 3378629, at *2 (D. Vt. July 10, 2014). While the plaintiff's state law claims in Gabriel had been dismissed at the time of this determination, the Second Circuit has elsewhere held that federal common law applies to questions of privilege in cases brought under federal law with supplemental state law claims, as here. von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987).
Under federal law, "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment" are privileged and protected by Rule 501. Jaffee v. Redmond, 518 U.S. 1, 15 (1996). As with other privileges, ...