Bruce Erikson v. Xavier University, et al.

                  IN THE UNITED STATES DISTRICT COURT 
                  FOR THE SOUTHERN DISTRICT OF OHIO 
                     WESTERN DIVISION - CINCINNATI 
 BRUCE ERIKSON,                     :      Case No. 1:23-cv-66 
                   Plaintiff,                    Judge Matthew W. McFarland 

 XAVIER UNIVERSITY, et al., 
                   Defendants. 

                           ORDER AND OPINION 

      This matter is before the Court on Plaintiff's Objections to the Magistrate Judge’s 
Order Granting Defendant Witt’s Motion for Protective Order and Denying Plaintiff's 
Motion to Conduct an In Camera Review (Doc. 39). Defendant Witt filed  a Response in 
Opposition (Doc. 40), to which Plaintiff filed  a Reply in Support (Doc. 41). This matter is 
therefore ripe for the Court’s review. For the following reasons, the Court OVERRULES 
Plaintiff's Objections (Doc. 39) and ADOPTS the Magistrate Judge’s Order (Doc. 38). 
                               BACKGROUND 
     This lawsuit stems from what Plaintiff Bruce Erikson, a former Xavier University 
professor, alleges to be defamatory statements made by Defendant Eva Marie Witt—one 
of his  former  students.  (Compl.,  Doc.  1,  9  1,  12.)  Specifically,  Plaintiff alleges  that 
Defendant Witt made defamatory statements that Plaintiff had raped her in December 
2019. (Id. at 4] 13-14.) Plaintiff alleges that he “vehemently denied [Defendant] Witt’s 
false allegation.” (Id. at { 16.) In October 2022, Defendant Xavier University terminated 

Plaintiff after allegedly concluding that he was responsible for raping Defendant Witt. 
(Id. at  J 6, 21.) On February 3, 2023, Plaintiff initiated this lawsuit by bringing claims for 
defamation, gender discrimination, breach of contract, and public disclosure of private 
facts. (Id. at  J 24-42.) 
      This matter has since proceeded to discovery. On August 5, 2025, Defendant Witt 
moved for a protective order to prevent the compelled disclosure of psychiatric records 
relating to her hospitalization in February 2019. (Motion for Protective Order, Doc. 36.) 
Specifically, Defendant Witt maintained that Plaintiff's discovery request is barred by the 
psychotherapist-patient  privilege  and  is  irrelevant  to  the  case.  (Id.  at  Pg.  ID  348.) 
Defendant Witt also argued that, while in camera review is not appropriate, it would be 
a preferable alternative to full production of the materials. (Id. at Pg. ID 354-55.) 
     The  Court  referred  the  discovery  dispute  regarding  the  protective  order  to 
Magistrate Judge Stephanie  K.  Bowman.  (8/21/2025  Notation Order.)  After hearing 
arguments from the parties, the Magistrate Judge granted Defendant Witt’s Motion for 
Protective  Order  and  determined  that Defendant Witt  “need  produce  no  additional 
information or documents relating to her February 2019 hospital admission.”  (Order, 
Doc. 38, Pg. ID 371.) On September 22, 2025, Plaintiff filed timely Objections (Doc. 39) 
concerning the Magistrate Judge’s decision to not conduct an in camera review of the 
documents in question. 
                            LAW AND ANALYSIS 
     When a  party files timely objections to a magistrate judge’s nondispositive order, 
such as a discovery ruling, the district court “must consider [the] timely objections and

modify or set aside any part of the order that is clearly erroneous or is contrary to law.” 
Fed. R. Civ. P. 72(a); Brahmamdam v. TriHealth, Inc., No. 1:19-CV-152, 2021 WL 4260418, at 
*1 (S.D. Ohio Sept. 20, 2021). “A decision is ‘clearly erroneous’ when, ‘although there is 
evidence to support it, the reviewing court on the entire evidence is left with a definite 
and firm conviction that a mistake has been committed,’ or where the magistrate judge 
improperly  applies  the  law  or  employs  an erroneous  legal  standard.”  In  re  Chrysler 
Pacifica Fire Recall Prods. Liab. Litig., 737 F. Supp. 3d 611, 615 (E.D. Mich. 2024) (quoting 
United States v.  United States Gypsum Co., 333 U.S. 364, 395 (1948); Beck v. Haik, 377 F.3d 
624, 636 (6th Cir. 2004)). 
     As a preliminary matter, the Court addresses Plaintiff's Reply in Support of his 
Objections (Doc. 41). Federal Rule of Civil Procedure 72 “does not contemplate a reply 
memorandum by the objecting party,” so this is not a proper filing. Gimbrone v. Krisher, 
No. 2:12-CV-251, 2012 WL 4792396, at *8 (S.D. Ohio Oct. 9, 2012) (collecting cases); see also 
JS Prods., Inc. v. Standley L. Grp., LLP, No. 09-CV-311, 2010 WL 3604827, at *2 (S.D. Ohio 
Sept. 13, 2010), aff'd, 418 F. App’x 924 (Fed. Cir. 2011). However, even if it were, the Court 
concludes that it would not alter the following analysis. 
     Plaintiff objects that the Magistrate Judge erred by declining to order a judicial 
review of Defendant Witt’s hospitalization records.  (Objections, Doc. 39, Pg. ID 375.) 
Specifically,  the  Magistrate  Judge  concluded  that  “[a]n  in  camera  review  is  not 
appropriate here  .  .  .  because none of the requested  documents appear relevant and 
Defendant Witt has  not waived  the  psychotherapist-patient  privilege for  any  of the 
records.” (Order, Doc. 38, Pg. ID 368.)

      The Federal Rules of Civil Procedure outline the general scope of discovery as 
follows: 
      Parties may obtain discovery regarding any nonprivileged matter that is 
      relevant to any party’s claim or defense and proportional to the needs of 
      the case, considering the importance of the issues at stake in the action, the 
      amount in controversy, the parties’ relative access to relevant information, 
      the  parties’  resources,  the importance  of the  discovery  in resolving the 
      issues,  and  whether  the  burden  or  expense  of  the  proposed  discovery 
      outweighs its likely benefit. Information within this scope of discovery need 
      not be admissible in evidence to be discoverable. 
Fed. R. Civ. P. 26(b)(1). That being said, a “court may, for good cause, issue an order to 
protect a party or person from annoyance, embarrassment, oppression, or undue burden 
or expense.” Fed. R. Civ. P. 26(c). 
     The  Supreme  Court  has  recognized  that  “a  psychotherapist  privilege  covers 
confidential communications made to licensed psychiatrists and psychologists . . . in the 
course of diagnosis and treatment.” Jaffee v.  Redmond, 518 U.S.  1, 15 (1996).  At times, 
district courts may review potentially  privileged  documents in camera  to  determine 
whether they are privileged or discoverable. See MD Auto Grp., LLC v. Nissan N. Am., Inc., 
No. 1:21-CV-1584, 2023 WL 4181295, at *1 (N.D. Ohio June 26, 2023) (citing Zolin v. United 
States, 491 U.S. 554, 565 (1994)). In camera review, however, is not a matter of right in this 
context.  A  party  seeking  in  camera  review  must  first  demonstrate  “a  reasonable 
probability that [the documents] contain relevant evidence” and then “make a  factual 
showing  adequate  to  support  a  good  faith  belief  that  the  review  will  uncover 
unprivileged documents.” Shah v. Metro. Life Ins. Co., No. 2:16-CV-1124, 2017 WL 5149145, 
at *2 (S.D. Ohio Oct. 19, 2017) (quotations omitted). Though the movant’s burden is not a 

“stringent one,” courts must guard against “groundless fishing expeditions.” Zolin, 491 
US. at 571-72. 
      Assuming a movant overcomes these initial hurdles, the “decision whether to 

engage in in camera review rests in the sound discretion of the district court.” Zolin, 491 
U.S. at 572. The Supreme Court instructs for this discretion to be guided by “the facts and 
circumstances  of  the  particular  case,  including,  among  other  things,  the  volume  of 
materials the district court has been asked to review, the relative importance to the case 
of the alleged privileged information, and the likelihood that the evidence produced 
through in camera review, together with other available evidence then before the court, 
will establish that the [privilege does not] apply.” Id. 
      As mentioned, Plaintiff takes issue with the Magistrate Judge’s determination that 
the prerequisite showing of relevancy was not satisfied. (Reply, Doc. 41, Pg. ID 391-92.) 
Plaintiff specifically objects that Defendant Witt’s medical records “appear|] to be related 
to issues surrounding her response to situations involving her sexual relationships and 
her emotional reaction to those situations.” (Objections, Doc. 39, Pg. ID 376.) Defendant 
Witt responds  that Plaintiff offers  “no  new legal  theory  or factual  basis that would 
distinguish this case from the Magistrate Judge’s prior analysis.” (Response, Doc. 40, Pg. 
ID 387.) It is unclear to this Court whether Plaintiff presented these arguments to the 
Magistrate Judge. In any event, the Court does not find Plaintiff's objections convincing. 
     The Court agrees with the Magistrate Judge’s finding that Plaintiff fails to meet 
the threshold burden: “a reasonable probability that [the documents] contain relevant 
evidence” and a “factual showing adequate to support a good faith belief that the review

will  uncover  unprivileged  documents.”  Shah,  2017  WL  5149145,  at  *2  (quotations 
omitted).  Notably,  the  Magistrate  Judge  found  that  the  “passage  of  time  between 
[Defendant]  Witt’s release from treatment and any events  connected with this case” 
demonstrates  that “Plaintiff's  showing of relevance  [is]  extremely  weak,  if not non- 
existent.”  (Order,  Doc.  38,  Pg.  ID  365.)  Chronologically,  Defendant  Witt  received 
treatment around three years before she allegedly made the defamatory statement in 
question. (/d.) It is also noteworthy that the alleged sexual encounter between Plaintiff 
and Defendant Witt took place nearly ten months after Defendant Witt’s hospitalization. 
(Id.) Plaintiff does not contest this timeline or directly wrestle with this temporally based 
reasoning.  Given the  timing  of Defendant  Witt’s  treatment in  relation to  the  events 
alleged in this case, the Court agrees with the Magistrate Judge’s assessment that this cuts 
against a finding of relevance at this juncture to warrant in camera review. 
     Plaintiff's  argument as  to  relevance  is  also  couched  in  speculative  terms.  For 
instance, Plaintiff objects that Defendant Witt’s hospitalization “appears to be related” to 
her response to prior sexual relationships. (Objections, Doc. 39, Pg. ID 376.) In camera 
review, however, is not an opportunity for district courts to cast their nets and partake in 
“groundless fishing expeditions.” Zolin, 491 U.S. at 571; see also Roby v. Bloom Roofing Sys., 
343 F.R.D. 487, 491 (E.D. Mich. 2023); Brahmamdam v. Trihealth Inc., No. 1:19-CV-152, 2021 
WL 2555066, at *4 (S.D. Ohio June 22, 2021), objections overruled, No. 1:19-CV-152, 2021 WL 
4260418 (S.D. Ohio Sept. 20, 2021). 
     The District Court for the Eastern District of Michigan’s decision in United States 
v.  Sampson,  albeit  framed  in a  slightly  different  setting,  persuasively  supports  this

conclusion. No. 2:21-CR-20732, 2024 WL 180849 (E.D. Mich. Jan. 17, 2024), aff'd, No. 24- 
1614, 2025 WL 1591846 (6th Cir. June 5, 2025). There, the district court declined to review 
an alleged victim’s mental health records since the movant’s “only basis for requesting 
th[e] records [was] a broad generalization that a person’s mental health may be relevant 
to her credibility.” Id. at *3. In doing so, the court concluded that allowing in camera 
review on such a speculative and vague basis would eviscerate the proper guardrails 
imposed by precedent. Id. at *4. “Instead,  a defendant would only need to state that a 
victim-witness  had  sought mental  health treatment before  the  entirety  of a  victim's 
psychotherapist records  were subject to in-camera review.”  Id.  The Magistrate Judge 
appropriately shared similar concerns in the case at hand. (Order, Doc. 38, Pg. ID 366.) 
     Moreover,  as  the  movant,  Plaintiff is  tasked  with making “a factual showing 
adequate  to  support  a  good  faith  belief  that  the  review  will  uncover  unprivileged 
documents.”  Shah,  2017 WL 5149145,  at *2  (quotation omitted).  The  Court therefore 
considers whether Plaintiff has adequately  shown how in camera review may reveal 
information beyond the contours of the psychotherapist-patient privilege. As the Sixth 
Circuit has recognized, “the identity of a patient or the fact and time of his treatment does 
not fall within the scope of the psychotherapist-patient privilege.” Griffin v. Sanders, 914 
F. Supp. 2d 864, 867 (E.D. Mich. 2012) (quoting In re Zuniga, 714 F.2d 632, 640 (6th Cir. 
1983)); see also Ohio Rev. Code § 4732.19. Here, as evidenced by the briefing itself, Plaintiff 
is well aware of the fact that Defendant Witt received mental health treatment in February 
2019.

      With this information in hand, Plaintiff argues that more disclosure is necessary. 
Plaintiff contends that purported messages from Defendant Witt “suggest that there may 
be non-privileged information in hospital records that is material to the credibility of Ms. 
Witt’s  claims  that  her  participation  in  those  sexual  activities  were  the  result  of  her 
incapacitation due to alcohol or psychological coercion.” (Objections, Doc. 39, Pg. ID 376 
(emphasis added).) However, the alleged messages were sent around the time of the 
alleged sexual acts between Plaintiff and Defendant  Witt— well after Defendant Witt’s 
hospitalization. (Id. at Pg. ID 374.) It is unclear to the Court how such messages form a 
sufficient  nexus  to  the  prior  mental  health  records—let  alone  any  unprivileged 
documents. See Second Ave Museum, LLC v. RDN Heritage, LLC, No. 3:20-CV-67, 2021 WL 
5154210, at *8 (M.D. Tenn. Feb. 16, 2021) (explaining that the movant had failed to show 
how the contents of disputed material may confirm that the privilege was inapplicable). 
Accordingly, on this record, the Court does not find that Plaintiff has made a sufficient 
factual  showing  to  support  a  good  faith  belief  that  in  camera  review  will  reveal 
unprivileged documents. As the Magistrate Judge aptly concluded, “Plaintiff [has] failed 
to identify ... any additional and specific nonprivileged responsive records he seeks that 
would be ‘relevant’ to the allegedly ‘material’ issue of [Defendant] Witt’s credibility and 
therefore discoverable.” (Order, Doc. 38, Pg. ID 368.) 
     For all these reasons, the Court finds that Plaintiff has not satisfied the threshold 
showing for in camera review. Additionally, even assuming that Plaintiff surmounts this 
initial burden, “the facts and circumstances of the particular case” do not support such 
review under the discretionary Zolin factors. Zolin, 491 U.S. at 572. First, Defendant Witt

has represented to the Court that the medical files are “extensive.” (Response, Doc. 40, 
Pg. ID 387.) Though Plaintiff “does not believe they are voluminous,” he acknowledges 
that “he has not seen the records.” (Objections, Doc. 39, Pg. ID 376.) As for the “relative 
importance to the case of the alleged privileged information,” Plaintiff argues that this 
factor is met because it goes to the credibility of Xavier University’s only witness as to the 
essential claim. (Reply, Doc. 41, Pg. ID 392.) But, as explained, the significant lapse in time 
between the hospitalization and the events in question casts doubt on the importance of 
the  information  sought.  Finally,  Plaintiff's  previous  arguments  do  not  evince  a 
“likelihood that the evidence produced through in camera review, together with other 
available evidence . . . , will establish that the [privilege does not] apply.” Zolin, 491 U.S. 
at 572. Together, these considerations weigh against in camera review. 
                               CONCLUSION 
     For all these reasons, and pursuant to Federal Rule of Civil Procedure 72(a), the 
Court does not find in camera review appropriate in this particular situation. Plaintiff's 
Objections (Doc. 39) are therefore OVERRULED. The Magistrate Judge’s Order (Doc. 38) 
is hereby ADOPTED. 
     IT IS SO ORDERED. 
                                         UNITED STATES DISTRICT COURT 
                                         SOUTHERN DISTRICT OF OHIO 
                                        Hoy    habad 
                                      By: 
                                         JUDGE MATTHEW W. McFARLAND