Erbacher v. City of Fort Collins

              IN THE UNITED STATES DISTRICT COURT                       
                FOR THE DISTRICT OF COLORADO                            

Civil Action No. 23-cv-01341-CNS-NRN                                      

CODY ERBACHER,                                                            

Plaintiff,                                                                

v.                                                                        

CITY OF FORT COLLINS and                                                  
JASON HAFERMAN;                                                           

Defendants.                                                               


ORDER ON DISCOVERY DISPUTE RELATING TO MENTAL HEALTH THERAPY            
                          RECORDS                                       


N. REID NEUREITER                                                         
United States Magistrate Judge                                            

   This matter came before the Court on a discovery dispute on November 21, 
2024. One of the issues addressed was mental health or therapy records of Defendant, 
Jason Haferman, a former police officer for the City of Fort Collins (the “City”). The Joint 
Discovery Dispute Statement relating to the issues raised at the hearing is found at ECF 
No. 80-1.                                                                 
   Plaintiff became aware that Defendant Haferman was receiving ongoing mental 
health therapy for PTSD and anxiety, conditions some of his co-workers believed were 
hindering his ability to do his job properly. Plaintiff asked for production of “all records in 
the City’s possession that relate to former Officer Haferman’s job suitability/fitness for 
duty, his treatment (if any) for his PTSD or anxiety, and complete copies of any 
Haferman psychological evaluations or assessments.” ECF No. 80-1.         
   At the November 21, 2024 hearing, the Court directed the City to file the 
requested records under level 2 restriction, allowing for in camera review, following 
which the Court would issue an order.                                     
   On December 5, 2024, the Court had a follow-up discovery conference regarding 
documents that had been submitted under restriction, found at ECF Nos. 82, 83, and 

88. At the conclusion of the hearing, the Court ordered that certain documents—those 
found in ECF Nos. 82 and 83—be produced to Plaintiff as confidential and “attorneys 
eyes only.” These were documents referencing Defendant Haferman’s mental health 
condition or treatment that had been in the possession of the City of Fort Collins Police 
Department (the “Police Department”) and were arguably relevant to the Monell claims 
in this case. As to the restricted documents at ECF No. 88, the Court took the issue 
under advisement. See ECF No. 100.                                        
   The Court has now reviewed in camera the materials submitted at ECF No. 88. 
These were medical records of Defendant Haferman that had not been in the 

possession of the City or its Police Department. These medical records include mental 
health therapy records of Defendant Haferman.                             
   Defendant Haferman’s counsel argues that these records cannot be relevant to 
pending Monell claim because the neither City nor the Police Department knew their 
contents. In addition, Defendant Haferman maintains that, notwithstanding any potential 
marginal relevance of documents, the records should be protected from discovery 
based on Defendant Haferman’s privacy interests and the psychotherapist-patient 
privilege.                                                                
   In Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court 
recognized a psychotherapist-patient privilege under Rule 501 of the Federal Rules of 
Evidence. In Jaffe, the defendant police officer had shot and killed an individual to 
prevent the stabbing of another person. The decedent’s family sued the officer alleging 
constitutional violations and seeking damages. After the shooting, the officer sought 

counseling from a licensed clinical social worker. The plaintiffs sought to obtain 
information regarding the substance of the counseling sessions. The defendant refused, 
citing psychotherapist-patient privilege. The Supreme Court noted that the 
psychotherapist-patient privilege, like the attorney–client and spousal privileges, flows 
from society's desire to facilitate certain relationships of confidence and trust. Jaffee, 
518 U.S. at 10.                                                           
   Effective psychotherapy . . . depends upon an atmosphere of confidence 
   and trust in which the patient is willing to make a frank and complete 
   disclosure of facts, emotions, memories, and fears. Because of the sensitive 
   nature  of  the  problems  for  which  individuals  consult  psychotherapists, 
   disclosure of confidential communication made during counseling sessions 
   may cause embarrassment or disgrace. For this reason, the mere possibility 
   of  disclosure  may  impede  disclosure  of  the  confidential  relationship 
   necessary for successful treatment.                                  
Id. Per the Supreme Court, these are the important societal interests the 
psychotherapist-patient privilege works to protect.                       
   So it is in this case and with these particular documents. Defendant Haferman 
was a seeing a therapist to address his anxiety and the PTSD that arose from his work 
as a police officer. The potential disclosure of such records might have the adverse 
consequence of discouraging others in Defendant Haferman’s situation from seeking 
counseling or therapy. The materials are covered by the psychotherapist-patient 
privilege which is recognized under Rule 501. See Id. In addition, the Court finds these 
documents are not relevant to any claim or defense because the City and the Police 
Department did not have access to them and therefore did not know their contents. 
There is other evidence, including testimony and internal Police Department documents, 
which may show the Police Department’s knowledge of Defendant Haferman’s mental 
or emotional struggles. But the documents at issue in this discovery dispute, found at 

ECF No. 88, are not relevant, are privileged, and need not be disclosed.       
                                 SO ORDERED,                            


Date: January 10, 2025             ____________________                   
                                 N. Reid Neureiter                      
                                 United States Magistrate Judge