WILLIAMS v. MILES

[[COURTLISTENER_SUBOPINION {"id":"10268429","type":"100trialcourt","part":"other","author":null,"source_field":"html_with_citations"}]]
UNITED STATES DISTRICT COURT 
                         DISTRICT OF NEW JERSEY 

KRISTI WILLIAMS, Administrator Ad 
Prosequendum, individually and on behalf of 
the ESTATE of ALFRED C. TOE, and 
CONSTANTINE TOE, 
                                          Civil Action No. 18-12973 (BRM) (ZNQ) 
                  Plaintiffs, 
                                              MEMORANDUM OPINION 
                  Vv. 
SHEEHAN MILES, et al., 
                  Defendants. 

     This matter comes before the Court upon a  series of letters detailing a discovery dispute 
regarding production of sensitive documents, initially briefed by Defendant Trenton Police Officer 
Sheehan Miles (“Officer Miles” or “Defendant”). (Def.’s Letter, ECF No. 33.) Plaintiffs opposed 
(Pls.”  Opp’n, ECF No.  34-1),  and Defendant replied  (Def.’s  Reply, ECF No.  36).  Defendant 
submitted another letter, clarifying errors in his initial position that he had learned subsequent to 
initial briefing.  (Def.’s  Second Letter,  ECF  No.  37.)  The  Court has  carefully  considered the 
arguments  and  decides  the  matter  without  oral  argument pursuant to  Federal  Rule  of Civil 
Procedure 78 and Local Civil Rule 78.1. For the reasons set forth herein, Plaintiffs’ request for 
discovery of Defendant’s psychological treatment records is denied. 
     This is an action in which Plaintiffs Kristi Williams, Administrator Ad Prosequendum, 
individually and  on behalf of the Estate of Alfred C.  Toe, and  Constantine Toe (collectively, 
Plaintiffs”)  allege  Officer  Miles  subjected  the  decedent,  Alfred  C.  Toe,  to  excessive  and 
unreasonable force, specifically, lethal force, in an altercation which took place on August 27, 
2016. (Compl. {§ 2, 20, ECF No. 1.) Plaintiffs seek to recover based on the alleged negligence of 

Officer Miles, Trenton Police Department (“TPD”),  and the City of Trenton (“Trenton”), (id. 
   62-80);  recklessness,  willful,  or  wanton  misconduct,  (id.  4] 81-85);  wrongful  death,  (id. 
    86-95); offensive physical contact, (id. J 129-32); intentional infliction of emotional distress, 
(id.  §§ 133-37);  loss  of consortium,  (id.  J§  138-41);  Portee  claims  of Constantine  Toe,  (id. 
{| 142-47); social host and premises liability, (id. §§ 157-74); and violations of the United States 
Constitution; the Civil Rights Act,
42 U.S.C. section 1983
; the New Jersey Constitution, and the 
New Jersey Civil Rights Act, (id. §J 96-128, 148-56). 
1.     PARTIES’ POSITIONS 
      On March 30, 2020, the Court conducted a telephone status conference with the parties, 
during  which  time  the  Court  learned  that  Officer  Miles  objected  to  the  production  of his 
psychological  treatment  records  as  protected  by  the  psychologist-patient  privilege,  initially 
outlined by the United States Supreme Court in Jaffe v. Redman,
518 U.S. 1
(1996). (Def.’s Letter 
1.) In support of his position, Officer Miles relies on Caver v.  Trenton,
192 F.R.D.  154
(D.N.J. 
2000). Specifically, he argues that here, as in Caver, “Trenton’s procedures relating to fitness due 
to the psychological evaluations were designed to effect absolute confidentiality.” (Def.’s Letter 
3.) He argues that when a department decides to have an officer examined, the officer is referred 
to an outside healthcare provider, who in turn will refer him to an independent medical professional 
for psychiatric evaluation. (/d.) He states that “any reports of the independent health professional 
containing  specific  diagnoses,  clinical  impressions,  or the  like  were retained by  [the  outside 
healthcare provider], and not disclosed to City of Trenton personnel.” Ud.  at 3-4.) Officer Miles 
contends that the outside provider only reports conclusions to Trenton personnel; that “[t]he City 
did not receive, nor have access to, the underlying psychological report or records”; and that this 
policy is both the current controlling policy, and the policy in Caver. (Id.) Officer Miles highlights 

that here, as in Caver, he “was specifically told by the individuals he spoke with at the Institute at 
issue the psychological records and reports were strictly confidential and would not be disclosed 
to the police department, and that the city would only be given the general conclusion concerning 
psychological fitness,” and that the outside provider “did not disclose any confidential information 
to the City of Trenton, but merely gave a ‘pass’ or ‘fail’ recommendation of fitness for duty to the 
police department.” (/d.  at 4-5.) He contends “he had the expectation the psychological records 
and reports would be kept confidential.” (/d. at 4.) 
      In response, Plaintiffs distinguish Caver, arguing that “the Honorable John J.  Hughes, 
U.S.M.J., made sure to conduct an in camera inspection of the pertinent psychological records” 
before  ruling  on  their production,  and  that Judge  Hughes  found the records unrelated to  the 
plaintiffs’  claims  of discrimination.  (Pls.”  Opp’n 4.) Plaintiffs  further argue that “[t]he  Court 
expressly noted that had the issue been one of excessive force, then, as to one Officer, it could very 
well have been a  different result (i.e., disclosure would have been warranted).” Ud. (citing Caver,
192 F.R.D. at 164
).) Curiously, Plaintiffs’ papers directly contradict Officer Miles’ contention that 
he expected all but the pass-fail results of the evaluation to remain confidential per TPD policy. 
Ud. at 7.) Plaintiffs state: “these are likely not at all treatment records... Defendant Officer Miles 
was sent to the Institute for Forensic Psychology for an evaluation at the Department’s request, 
with an expectation that same would be disclosed and shared with the TPD Management and the 
City Administration[.]” Ud.) Plaintiffs aver that “Defendant Officer Miles has a long history of 
being aggressive, dishonest, incompetent, and at times, alleged to have been engaging in criminal 
activities himself, despite being an officer of the law—all of which TPD was clearly aware of.” 
     at 5.) They assert that Officer Miles’ “mental state and ability as to perception and observation 
are most certainly relevant since there are major credibility issues in this case and the issue of the

City’s  notice  of these  problems  .  .  .  especially  to  Plaintiffs’  Monel/'  claims.”  (/d.)  In  sum, 
“Plaintiffs contend that the records sought are not privileged, are highly relevant, and may lead to 
the discovery of admissible evidence concerning what happened and why.” (/d. at 9.) 
     Officer Miles replies that the policy arguments in Caver remain, and that “[i]f these types 
of records are permitted to be produced in cases such as that now before the [C]Jourt, this will 
undoubtedly create a chilling effect on officers’ willingness to speak freely to the mental health 
professional discussing  their fitness to return to duty, which, in turn, will adversely affect the public 
good.” (Def.’s Reply 7.) Regarding Plaintiffs’ Monell claims, Officer Miles maintains that they 
are regularly “bifurcated for both discovery and trial purposes as they bear no relevance to  a 
determination of whether the officer in a particular situation violated the plaintiffs Civil Rights.” 
(id. at 8-9 (citation omitted).) He suggested that the Court review the records in question in camera 
before making a ruling. (/d. at 9.) 
     After briefing, Officer Miles wrote a follow-up letter, “to correct some inaccuracies in [his] 
submissions that have come to light as [he] has now come into possession of some of the records 
that [P]laintiff[s’] counsel seeks.” (Def.’s Second Letter 1.) He asserts that he “has found out The 
Institute for Forensic Psychology issued three reports with respect  [to  Officer Miles]  dated[:] 
05/04/2009, 08/30/2010, and 09/08/[20]16.” (/d.) The two reports that he obtained are the reports 
submitted  for  the  Court’s  in  camera  review.  (/d.)  Officer  Miles  states  that  he  previously 
represented that “he believed that the ‘Fitness for Duty’ reports simply indicated that [he] was ‘Fit 
for Duty’, as ..  . he was returned to duty after the two incidents involved.  [His] review of the 

'In Monell vy. Department of Social Services, the Supreme Court held that local governing bodies 
can be held liable under section  1983  where “the action that is alleged to be unconstitutional 
implements or executes a policy statement, ordinance, regulation, or decision officially adopted 
and promulgated by that body’s officers.”
436 U.S. 658, 690
(1978).

documents indicate this is not, in fact, correct.” (/d. at  1-2.) The report involving domestic violence 
includes “a detailed recitation of the facts related to that incident,” and “the results of various 
psychological tests conducted with respect to  [Officer Miles]  at or about that time,” which is 
“contrary to [his] understanding that all discussions with the examiner were to be confidential and 
the report provided to the Police Department would only reflect whether he was ‘fit for duty’.” (/d. 
at 2.) He argues that “[i]rrespective of the information that was provided to the Police Department, 
[he] was under the impression that his discussions with the psychologist in question would remain 
confidential.” (/d.) 
I.     LEGAL STANDARD 
     Federal Rule of Civil Procedure 26 governs the scope of discovery. Rule 26(b)(1) provides: 
           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  the  relevant  information,  the  parties’  resources,  the 
           importance of 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. 
    Federal Rule of Evidence 501 governs privilege in matters in which the Court exerts federal 
question jurisdiction. See Pearson v. Miller,
211 F.3d 57, 61
(3d Cir. 2000) (“[D]iscovery disputes 
in federal court are governed by federal law, especially the Federal Rules of Civil Procedure and 
the Federal Rules of Evidence.”).  Federal Rule of Evidence 501 states: 
           The common law—as interpreted by United States courts in the light 
           of reason and experience—governs a claim of privilege unless any 
           of the following provides otherwise: the United States Constitution; 
           a federal statute; or rules prescribed by the Supreme Court. But ina 
           civil case, state law governs privilege regarding a claim or defense 
           for which state law supplies the rule of decision.

“[W]hen there are federal law claims in a case also presenting state law claims, the federal rule 
favoring  admissibility,  rather  than  any  state  law  privilege,  is  the  controlling  rule.”  Wim.  T. 
Thompson Co. v.  Gen. Nutrition Corp.,
671 F.2d 100, 104
(3d Cir.  1982). “Accordingly, for the 
resolution of the present discovery dispute, which concerns material relevant to both federal and 
state  law claims,  [Federal  Rule  of Evidence]  501  directs us to  apply  federal  privilege  law.” 
Pearson,
211  F.3d at 66
.  “The  general test to be applied in assessing privilege candidates is 
whether  such  a privilege  ‘promotes  sufficiently  important  interests  to  outweigh the need for 
probative evidence.’” Pearson,
211 F.3d at 67
(quoting Trammel v.  United States,
445 U.S. 40, 47
(1980)). “[Federal Rule of Evidence]  501  should be understood as reflecting the view that the 
recognition of a privilege based on a confidential relationship  .  .  .  should be determined on a 
case-by-case basis.” Jaffee v. Redmond,
518 U.S. 1, 8
(1996) (internal quotation marks and citation 
omitted) (outlining the psychotherapist-patient privilege). 
     The  Federal  Rules  of  Civil  Procedure  further  contemplate  production  of potentially 
privileged material, stating: 
           When  a  party  withholds  information  otherwise  discoverable  by 
           claiming that the information is privileged or subject to protection 
           as trial-preparation material, the party must: (i) expressly make the 
           claim;   and   (11)   describe   the   nature   of  the   documents, 
           communications, or tangible things not produced or disclosed—and 
           do  so  in  a  manner  that,  without  revealing  information  itself 
           privileged or protected, will enable other parties to assess the claim, 
Fed.  R.  Civ. P. 26(b)(5).  Similarly, Local  Civil Rule 34, governing production of documents, 
directs: 
           Where a claim of privilege is asserted in responding or objecting to 
           any discovery requested in requests for documents, and information 
           is not provided on the basis of such assertion, the party asserting the 
           privilege shall in the response or objection identify the nature of the 
            privilege (including work product) which is being claimed and if the 
           privilege is being asserted in connection with a claim or defense 

                                     & 

           governed by state law, set forth the state rule being invoked. When 
           any privilege is claimed, the party asserting it shall indicate, as to 
           the information requested, whether any such documents exist. 
     The  Supreme  Court  of the  United  States  has  specifically  carved  out  a  privilege  for 
communications between a patient and his or her psychotherapist. See Jaffee,
518 U.S.  at  15
, 
“(Confidential communications between a licensed psychotherapist and [his or] her patients in 
the course of diagnosis or treatment are protected from compelled disclosure under 501  of the 
Federal Rules of Evidence.” /d. The District Court for the District of New Jersey has recognized 
that  “Jaffee  is  not  limited to  situations  in which people  voluntarily  consult  a mental  health 
professional.” Caver,
192 F.R.D. at 162
. “What is critical is that [the defendant] was examined by 
a psychologist for the purpose of diagnosing whether he was suffering from some mental illness 
or emotional disorder that would render him to be unfit as a police officer.” Jd, 
Il.    DISCUSSION 
     The  Court  denies  the  production  of these  records  after  examination  in  camera,  as 
containing no additional relevant material. The Court has determined that these records have little 
to no probative value, which is substantially outweighed by potential prejudice to Officer Miles 
and the chilling effect on the evaluative system of police officers who may be suffering from a 
psychological condition. This is especially true of the report pertaining to the domestic violence 
incident, which took place nearly ten years ago. Plaintiffs are aware of the events that transpired 
leading to Officer Miles’  evaluations,  and upon reviewing these records  in camera, the Court 
determines  there  is  no  outstanding  discovery  that  could  be  gleaned  from  accessing  them. 
Additionally, significant public policy concerns further support nondisclosure of these records 
under the circumstances of this case.

     Though Caver is distinguishable from the instant matter in that Caver centered around 
potential discrimination, and this action surrounds the use of alleged excessive force, the Court 
finds that production of these documents to Plaintiffs would serve to disincentivize an officer from 
revealing sensitive information to a psychotherapist for fear that it might later become the subject 
of  litigation.  As  the  Caver  Court  explained,  “[plolice  officers  are  required  to  undergo 
psychological evaluations in order to determine whether they are mentally fit to be police officers. 
This testing is performed not only to benefit the officer’s well-being, but more importantly, to 
ensure the safety of the community by protecting its citizens from police officers whose mental 
instability poses a risk to public safety.” Caver,
192 F.R.D. at 163
. 
     As in Caver, despite the disclosure to TPD, Officer Miles believed that these documents 
would be kept confidential, and that TPD would only receive a pass-fail recommendation for 
whether he could return to work. (Def.’s Letter 4.) Officer Miles asserts that he “was specifically 
told  by  the  individuals  he  spoke  with  at  the  Institute  [for  Forensic  Psychology]  that  the 
psychological records and reports were strictly confidential and would not be disclosed to the 
police  department,  and that the  City would only be  given the  general  conclusion concerning 
psychological fitness.” (/d.) The records are clearly marked with the heading “Privileged and 
Confidential  Psychological  Report,”  in  all  capital,  bold,  and  underlined  letters.  Though  any 
claimed privilege appears to be waived due to the actual disclosure of the reports to Defendant 
Officer Miles’  employer,  TPD,  the  documents  are  clearly  confidential,  and TPD  stands  in  a 
different position than that of a disinterested third-party.  TPD has a strong policy interest in 
maintaining the confidentiality of its evaluative process, and permitting its officers the opportunity 
to obtain unfettered assistance through free communication with healthcare providers, who in turn

ensure officers are fit for duty. This is not only in the best interest of TPD, but in the best interest 
of the public its officers serve. 
     Though Plaintiffs argue that, because General Order 74-2 requires that “officers must be 
cleared by  a  ‘city  contracted medical provider,’  .  .  .  Defendant cannot and should not argue 
privilege here, as he should be aware of what the Rules and Regulations of his employer are[,]” 
and the Court does discern language indicating that the reports would be produced to the Police 
Director,’ the Court finds that this is insufficient to  overcome the  significant policy interests 
combined with Officer Miles’ understanding of disclosure at the time of evaluation. The Court’s 
review of TPD’s  general Rules and Regulations did not uncover any further specific policy relating 
to the issue of disclosure. The Court finds that even if Officer Miles would have been put on notice 
by General Order 74-2, he reasonably believed, after such directly conflicting communication, that 
his evaluation by an independent psychotherapist would remain confidential and would not be 
disclosed. 
     Finally,  the  Court  notes  that  this  decision  should  not  be  construed  as  prohibitive  to 
disclosure  of records  in  every  case;  as  stated  by  the  Supreme  Court,  analyses  relating  to  a 
confidential relationship must be examined on a case-specific basis. See Jaffee,
518 U.S. at 8
. 

* TPD’s sick leave policy reads: “Bureau Commanders or their designees shall be responsible for 
tracking the sick and  [injured on duty]  status of all personnel in their command. These duties 
include  .  .  .  [rJeferr[ing]  Department personnel  for  evaluation  to  the  appropriate  consulting 
physician or City Contracted Medical Provider and obtain[ing] evaluation reports from physicians 
to whom the employee was referred. Evaluation reports shall be forwarded with recommendations 
to the Police Director.” (TPD Sick Leave Policy 74-2 III.6, Gen. Order No. 74-2, am. Sept. 29, 
2015.)

IV.    CONCLUSION 
  For  the  reasons  set  forth  above,  Plaintiffs’  request  to  access  Defendant  Officer  Miles’ 
psychological records submitted for in camera review is denied. An order consistent with this 
Memorandum Opinion will be entered. 

                                           \     en   A        we       /   I 
Signed: June 30, 2020                          ee    PA    a    eet          □ 
                                         -Zaw N. QURAISHI 
                                         UNITED STATES MAGISTRATE JUDGE 

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