Sheriff Nygren Loses Effort to Make Public Psychological Evaluation That Office Marked Confidential

Scott Millliman

Scott Millliman

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:

Milliman MD 1a

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

________________________________
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.


Comments

Sheriff Nygren Loses Effort to Make Public Psychological Evaluation That Office Marked Confidential — 26 Comments

  1. The question — Why didn”t the Nygren/Zinke lawyer want the WHOLE THING OPEN???

    I bet that would be REALLY interesting.

  2. Another question – why is it when the Nygren/Zinke club get kicked in the pants in Federal Court – THE NORTHWEST HERALD WON’T PRINT IT??

    Get ready for another Zinke “puff piece” instead.

  3. Wait a sec; somebody, and it could be me, is reading this wrong.

    MY reading of this; Using Duncan and Gus’s reverse logic of Guilty until Proven innocent, it seems to ME that Miliman doesn’t want his evaulation unsealed and open to the public why?

    If it shows that he’s ok to work and not suffering from somthing, doesn’t this report bolster his contention?

    If it says that he IS ok to work, one would think that he’d WANT the file to be open and shown to the public!

    However, IF it shows that he is NOT able to work, I’d agree that he’d want it to remain sealed.

    Cal, the FIRST paragraph in the story above does not make clear who’s doing or trying to not do/do what-please read it again and you’ll see what I mean.

  4. “AZSUPPORTER”

    Everyone knows you are from the Sheriffs Department and are therefore biased..

    Since when did anyone make you and Christopher Grote “God”?

    The fact is,.. Scott Milliman lost his job after he testified in Federal Court for Zane Seiplers case.

    Milliman’s release from his job has nothing to do with his mental ability, it is about Nygren’s need to retaliate because Milliman exposed corruption…

    Nygren has a history of “Passive Aggressive Behavior” History shows Nygren gets even with people when they question his supposed authority and or choose to reveal what Keith Nygren is all about…

    He did ask someone to kill Dave Bachman and Nygren has been involved in other cases of retaliation..

    The public has the right to know about the business relationship and or friendship between Christopher Grote and Keith Nygren….

    That is the real story here.

    And, we can start with Keith Nygren’s “Passive Aggressive’ and “Narcissistic Personality.

    He clearly has a grandiose sense of himself.

    In other words, there is a big issue with his “Arrogance’ and “God Almighty” personality.

    How about an evaluation Keith?

    Poor Keith, Zane Seipler and Scott Milliman did not want to play in the same sand box, so he got even and fired both of them…

    You know it, everyone knows it.

  5. AZ – again. The Nygren/Zinke lawyer wanted EVERYTHING SEALED.

    Why??

    Why don’t they ask to have EVERYTHING UNSEALED????

  6. My GUESS would be that initially, they wanted it sealed because they were trying to protect Milliman’s personnal health problems; I would also imagine that HIPPA may have had something to do with it.

    However, since Milliman has now made it part of a lawsuit contending that he is fit for duty, they want it revealed.

    And beside all the cry babies yelling at me, no one has yet answered my Gus/Duncan logic question; if it shows that Milliman IS fit for duty, why doesn’t he also want it unsealed and open to the public?

    From another Gus/Duncan angle, why doesn’t he want to prove that he’s innocent with this report?

  7. “AZSUpporter” The report is not valid because it was not done by an outside objective party. The evaluations was done by one of Nygrens friends… Nygren chose the evaluator and for that reason it can’t be trusted… Just because Grote says so, does not mean it is true. There is a reason why HIPPA is in place and it is to protect all parties. Nygren does not need to release that report to defend the case. The only reason Nygren wants the report to be released is retaliation and to try to make Scott Milliman look bad to the public. Both parties have access to that report and you know it. If the Northwest Herald leaks that report everyone will know where they got it from. Nygren.

  8. Alright fellow sheep; if Duncan says so, and remember, he has “first hand” knowledge of corruption in the sheriff’s department (although he’s never told anyone HOW), and he’s NOW also a shrink, well then, he MUST be correct! Keep drinking the Kool-Aide Buddy; you’ll be just fine……….

    The gasket you’re gonna blow when Zinke wins will be epic!

    Maybe we can make an appointment for you with another shrink-I believe there’s one across the street from the courthouse-not too far away that you can’t limp over there after your motor blows

  9. You certainly have Duncan Mchenry = Zane Seipler number AZsupporter.

  10. “AZSUPPORTE;R” and “FUKOKU”

    It is a fact that I have a degree in Psychology and have both of you pegged. Y

    ou two don’t need to drink the Kool Aide, there is already something wrong with both of you.

    Let’s see Kim had a knife incident at the Mchenry County Sheriffs Department and then she was hired by Kane County and drove her squad car into another car.

    And, she is married to Andy Zinke. Actions speak louder than words.

    You “AZSUPPORTER” sit on the side of the Zinke camp and and support “FUKOKU” = Kim Zinke”

    That says it all”

    And, who says I did not report corruption?

    Clearly, you are the one that needs a shrink AZ.

    As for Kim she is already seeing a Psychiatrist and has been for a long time..

    AZ since you have reported that you are retired you should have plenty of time to go buy new towels with your kids initials on them and put them under the Christmas Tree.

    Though I don’t know anyone that is retired with kids at home.

    You liar.

    Which makes you just perfect for the Zinke Camp…

    You told that “BIG LIE” not me.. You proved that you need a shrink when you wove that web of lies..

    In fact, it’s a pretty big web.

    Now your stuck…

  11. Duncan, I also have a degree.

    It’s in Bul____t speak, of which you excell in.

    Apparently you don’t have kids that you give Christmas presents too, so towels would be beyond your understanding.

    Take a pill, and calm your butt down. The number for the crisis line is 1-800 Holy Crap. Use it

  12. Gotcha again; you’re becoming too easy.

    We retired people have nothing but time on our hands to play with one track minded people who can do nothing else but repeat themselves to try and sound superior.

    I can hear that gasket leaking from here………..

  13. A degree in Psychology?

    I highly doubt that because you show a deficient in any category of intelligence.

    Just look at your intelligent repeated comments:

    the truth the whole truth and nothing but the truth

    infamous TV shows “Lets Make a Deal” and “The Price is Right”

    Go back to your Cuckoos nest

    Non Violent Protest” and “Bus Boycott

    Go take your meds

    Duncan Mchenry = Zane Seipler, do you know how stupid you sound saying the same worthless repeated babbling crap?

    Stop listening to those voices in your head that you call “Da Boys” and get some rest.

  14. “Fukoku” = Kim Zinke you are the one that has been prescribed meds because of your behavior.

    You left McHenry County Sheriffs office because of it.

    Further, you think Duncan is Zane Seipler.

    NOT.

    Ok, just proved you are not only whacky Kim you are paranoid and obsessed with Zane…

    For that reason you should be taking meds…

    Yes I do have a degree in Psychology.

    Now get along Kim and go take your meds.

    You apparently missed your daily dose.

  15. Cool!

    Now I’m the soon to be elected Sheriff of McHenry a County!

    I guess I could come out of retirement for that post.

    Thanks Space Ranger!!!

  16. Andrew, is that you?

    Welcome to Duncan Mchenry = Zane Seipler Imaginary World that he calls “Da Boys.”

    And that is the truth, the whole truth, and nothing but the truth.

  17. Hey Duncan Mchenry = Zane Seipler, go back to your Cuckoos nest where you watch your infamous TV shows “Lets Make a Deal” and “The Price is Right.”DS8Z

  18. “AZSUPPORYER” and “Fukoku”

    Go back to the The Zinke Circus…

    It is true Kim resigned after the knife incident and before the Merrit Commission could suspend or fire her?

    Then she went to Kane County where she slammed her police car into another vehicle.

    That case was settle out of court…

    Lake County did not want anything to do with her..

    More Zinke family antics to come..

    You have a record Kim and Andy and it does not look good for either of you..

    Go take your meds..before you have another knife incident and before you decide to get in a car and drive..

    “AZ’ you better hurry up and get new towels with initials on them for your imaginary kids..

  19. Duncan Mchenry = Zane Seipler, I don’t think you are Zane, I know YOU are Zane.

    Did you ever file for a FOIA for Undersheriff Andrew Zinke’s wife employment file that you stated you will do on 11/03/2013, under the post “Another Leak from the Sheriff’s Department to the NWH?”

    I hope this was not another one of your worthless stupid lies again. I really want to know about this knife incident you keep on babbling about.

  20. Blowhards seldom do what they “say” their going to do. They just blow,hard, and whine. Having a battle of witts with someone who is unarmed is a waste of everybody’s time, but it is fun sometimes.

  21. “Azsupporter” They still have those towels on sale..

    Or whats the matter you are stuck in that web of lies?.

    Yes you are.

    Ask Kim she may have some extra meds for you..

  22. Ummm…congrats on keeping your psychological evaluation private.

    Fighting to keep a psychologists ruling on your fitness for duty confidential makes us all much more confident in the potential of you getting a gun and badge back.

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