In the wrongful termination suit filed by fired McHenry County Deputy Sheriff Scott Milliman, Sheriff Keith Nygren and Undersheriff Andy Zinke have for some reason been trying to make a doctor’s evaluation of Milliman’s suitability to be on duty public.

No matter that the Sheriff’s Department marked it confidential in the first place.

Milliman gave a deposition in fired Deputy Sheriff Zane Seipler’s wrongful termination suit and, he claims, was fired as a result.

According to his testimony in Seipler’s case, Nygren committed alleged criminal acts.

Federal Magistrate Judge heard this aspect of Milliman’s suit and ruled that the psychiatrist’s report would not be made public,

His decision follows:

STATEMENT

This case arises out of the recent Seipler v. Cundiff litigation, FN 1, where Plaintiff was an officer employed with the McHenry County Sheriff’s Office (“Defendants”).

During the Seipler case, Plaintiff testified against Defendants at deposition.

He now files his own suit, believing that his employment was terminated in retaliation.

As a part of that process, he underwent a “fitness for duty” psychological evaluation by Dr. Christopher Grote.

Now, Plaintiff’s psychological evaluation report is the subject of Defendants’ Motion to “Remove Confidential Designation.”

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FN 1 Seipler v. Cundiff, et al., No. 08 CV 50257 (N.D. Ill. filed Nov. 19, 2008).
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Some written discovery has already been exchanged between the parties, including Dr. Grote’s evaluation report.

In July 2013, the court entered an agreed confidentiality order, based on the court’s model form provided by L.R. 26.2.

The confidentiality agreement’s definition of confidential information includes “medical information concerning any individual” and “personnel or employment records of a person who is a party.”

Therefore, when Dr. Grote’s report was handed over to Plaintiff, Defendants intentionally designated the report “confidential.”

Now, months later, Defendants request that the “confidential” designation be removed from the report.

“The protective order [is] a private contract between the parties that the court approve[s].” Barmore v. City of Rockford, et al., 2012 WL 3779045 at *6 (N.D. Ill. Aug. 29, 2012) (Mahoney J).

The Court always is concerned by a contested motion which seeks
to modify a stipulated protective order because that order was the
product of an agreement between the parties. . . . An agreed
protective order may be viewed as a contract, and once parties
enter an agreed protective order they are bound to its terms, absent
good cause to modify or vacate the protective order. . . . As with all
contracts, the ultimate question is what was the parties’ mutual
intent. . . .The answer to that question is to be found within [the
protective order’s] four corners, and not by reference to what might
satisfy the purposes of one of the parties to it.

Paine v. City of Chicago, 2006 WL 3065515, 2 (N.D. Ill., 2006)
(internal citations omitted).

Here, the court has somewhat of a unique factor to consider; the party challenging the confidentiality designation is also the party that originally designated the document “confidential.” As required by their agreement, both parties have conferred on the subject, but are unable to reach an accord.

Defendants’ line of justification for removing the confidential designation has three prongs:

1. that Plaintiff had no expectation that the report would be confidential or privileged at the time it was completed,
2. that the report’s “confidential” designation is “unnecessarily cumbersome,” and
3. that Plaintiff has waived any expectation of confidentiality by placing the report at issue in this case.

On the other hand, Plaintiff disagrees with these contentions and insists that the parties adhere to their confidentiality agreement and the court’s order.

Defendants’ position is that confidential designation is inappropriate to an admissible document.

Last year, this court addressed the disclosure of similar documents in Barmore v. City of Rockford, et al., 2012 WL 1660651 (N.D. Ill. May 11, 2012). There, Plaintiff argued that an analogous report was not privileged and therefore discoverable.

This Magistrate Judge denied the motion, opining that “when officers have a reasonable expectation that their communications with an examining psychologist for the purpose of a fitness-for-duty evaluation will remain confidential, their communications should be privileged.” Plaintiff objected to the order. Upon review, the District Court granted the motion to compel and ordered Defendants to provide the reports, holding that the psychotherapist-patient privilege would not apply to such evaluations:

[W]hile one might reasonably expect that his [private]
communications with a treating psychologist would be held in
confidence, the same is not true for someone in [the officers’]
situation. An officer undergoing a fitness evaluation would
certainly think that the information he provides in relation thereto
would be accessible at least to the decision[-]makers in his
department. . . .

For all these reasons, the court finds that the fitness evaluations in this case are different from psychological evaluations for the purpose of diagnosis and treatment as contemplated by the Supreme Court when it recognized the psychotherapist-patient privilege. To extend the privilege to this type of situation would be to run afoul of the well-established rule that the public is entitled to “every man’s evidence” and that departures from that general rule disfavoring testimonial privileges must be “distinctly exceptional.”

The issue here is not whether the report is privileged.

Dr. Grote’s report is discoverable; indeed, it has already been exchanged.

Surely, discovery material does not have to be privileged to be deemed “confidential” and therefore covered by a protective order.

The arguments made by Defendants are not particularly persuasive.

Defendants attack Plaintiff’s expectation of privacy concerning the report.

Although Plaintiff concedes that the report is not privileged, he believes that he has some expectation of privacy concerning the report in question, pointing out that each page contains the following statement: “NOTICE: THIS REPORT IS NOT TO BE RELEASED TO, NOR READ BY NONAUTHORIZED PERSONS.”

This seems to show that Plaintiff had some reasonable expectation that the report would not be publicly disseminated outside of the Defendants’ or the evaluators’ private review.

Neither party seems to dispute that the report may contain sensitive medical or mental-health information.

Such information, even if relevant to the case, is commonly subject to a confidentiality or protective order.

Defendants also contend that the “confidential” designation “limits their ability to freely use the report in litigation without burdensome restrictions.” Defendants’ Motion to Remove “Confidential” Designation, Dkt. No. 66, p. 5.

Defendants explain that the report will be used “in interviews or depositions of the parties and many third parties in this case.” Defendants’ Reply, Dkt. No. 71, p. 4.

However, pursuant to the agreement, even if the report remains confidential, it can be disclosed to counsel and expert witnesses in connection with the litigation. Agreed Confidentiality Order, Dkt. No. 65, Attachment 2, ¶ 5.

Still, Defendants claim that the confidential designation will make it difficult to refer to the report when interviewing non-expert witnesses, without stating specifically why the report would need to be disclosed to a third-party, non-expert witness, who those witnesses are, or what the precise burden placed upon them might be. Id.

Perhaps the best argument that Defendants offer is that courts have a long-standing, general preference that the public be entitled to “every man’s evidence” and that “[m]aintaining a court record open to the public is vital in ensuring the credibility of the court system.” Forst v. Smithkline Beecham Corp., 639 F. Supp. 2d 948, 955 (E.D. Wis. July 29, 2009).

Nonetheless, medical documents are routinely covered by confidentiality agreements.

It is clear that Plaintiff has placed his evaluation report directly at issue, claiming that the results are false.

However, Defendants seem to confuse the “privilege” and “confidentiality” issues, they fail to allege that they designated the report “confidential” in bad faith or by mistake, and do not explicitly explain undue burden placed upon them if the agreement is upheld.

Looking to the “four corners” of the confidentiality agreement and considering both parties’ intent at the time it was entered into, there is little reason that the document’s designation should be changed at this time, especially considering that Defendants were the original designating party.

For these reasons, Defendants’ Motion is denied.

Date: 12/5/2013

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Hon. P. Michael Mahoney,
U.S. Magistrate Judge

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Sheriff Nygren and Undersheriff Zinke are represented by James Sotos.  Milliman’s attorney is Thomas Crooks.