Why did Doug Park go wacko over the Presidential Archives release?

Dear “It gets bigger.” Really? Legal advice to UOM based on Google?

Dear “Federal Litigator.” Really? Attorney-client privilege is relevant to a journalist or blogger? I though it served to prevent compelling a client of an attorney from being compelled by the courts to reveal something. What does it have to do with a journalist or private citizen publishing a memo that he or she comes across? Nothing. But I’m no Federal litigator, so maybe you know something I don’t. And you, even though may litigate, don’t appear to be a lawyer. I hope that UOM readers don’t rely either on Google or blog comments for legal advice.

I heard my name.

Numerous courts since Jaffee have concluded that, similar to attorney-client privilege that can be waived when the client places the attorney’s representation at issue, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue

No, a patient does not necessarily “waive” her privilege by placing her medical condition at issue. And even if she did, the *presumption* is of privilege absent a court order. Here are three cases, just in the federal district of Oregon, where the court ruled that therapy records were privileged even though a plaintiff made his or her mental state “an issue”

Gallagher v. Lincoln County—no waiver of privilege in the case of “general emotional distress” absent “negligent infliction of emotional distress” “unusually severe emotional distress in light of her allegation” or “specific psychiatric injury or disorder”

Thomas v. UPS Ground Freight—no waiver when plaintiff did not allege a specific psychiatric disorder.

Kinnee v. Shack—no waiver in cases of allegation of “general emotion distress”

The Second Circuit court of appeals explains why “garden variety” emotional distress claims do not waive Jaffee privilege elegantly in Sims v Blot

Finally, we reject respondents’ contentions that “anybody” who requests damages for “pain and suffering has waived the psychiatric privilege” “because the psychiatric records might conceivably disprove the experiencing of the pain and suffering” (Oral Arg. Tr. 19), that any claim of “even . . . ‘garden variety’ injury waives the psychotherapist-patient privilege” (respondents’ brief on appeal at 42), and that a plaintiff’s mental health is placed in issue whenever the plaintiff’s claim for “unspecified damages” may “include[] some sort of mental injury” (respondents’ brief on appeal at 21). In reality respondents simply seek to have the privilege breached whenever there is a possibility that the psychiatric records may be useful in testing the plaintiff’s credibility or may have some other probative value. To accept these contentions would inject the balancing component that Jaffee foreclosed, and would disregard the principle that “[p]arties . . . do not forfeit [a privilege] merely by taking a position that the evidence might contradict,” Salerno, 505 U.S. at 323. If this principle were not the rule, then in virtually every case a forfeiture might be found, as in virtually every case the party opposing the privilege could argue that the psychological record might reveal evidence that the party asserting the privilege is testifying falsely.

Youngin, setting aside the misapplication of Jaffe, most of your other cases appear in Kinnee v. Shack, suggesting you may not have reviewed facts in those cases. Kinnee allegedly “suffered severe emotional distress during her employment and for a period of several months thereafter, through approximately February 1, 2006.” Doe pleads a wider range of mental complaints with no time limitations, “…damages for past, present, and future emotional pain and suffering, ongoing and severe mental anguish, and loss of past, present, and future enjoyment of life” (p. 17). Kinnee “expressly represented that she does not intend to rely on the testimony of a psychotherapist and that she does not claim any specific disabilities or medical conditions” from defendants alleged actions. Thus far, Doe has offered no similar limitations. Kinnee is distinguishable on facts and claims – it does not apply to Doe in the way you are attempting.

Sims never intended to place his mental state at issue, Doe has. Sims’ suit arose from the prisoner’s fears while “struggling to cover up from being either kicked or punched in a vital area, my feet was grabbed and held by someone while C.O. M. Blot placed his knee in my side and kept punching me in my head. C.O. F. Carabello, [sic] shouted, ‘You hit a f—ing officer, you piece of s—, we’ll kill you.’ At this time, C.O. F. Carabello, [sic] pulled his pocket knife and swung down in a stabbing motion. I twisted away as best I could but was cut by his knife anyway. . . .” Sims is also noteworthy for his “withdrawal of any claims for emotional injury damages beyond those ordinarily associated with a conventional claim for pain and suffering resulting from an assault and physical injury.” Doe has not withdrawn her claim, but even if she does, her counsel asked Park to secure and produce records last August. Park did his job.

Bottom line: UO may certainly place a “hold” on records in reasonable anticipation of litigation and counsel may certainly access them in preparing to defend against a known lawsuit that placed the plaintiff’s emotional state at issue. Failure of in house counsel to take these steps would breach a lawyer’s duty to a client and could be legal malpractice. To that, Park notes the risk of court sanctions.

Briefly, the absurd comment “What does it have to do with a journalist or private citizen publishing a memo that he or she comes across?” begs the question whether UOM would publish Doe’s records if he came across them. Of course not, but there are other forms of confidentiality and privilege that UOM disregards. The Geller memo was confidential and protected by attorney client privilege, until Harbaugh made his “nervous request” after-the-fact and Coltrane waived the attorney-client privilege. Doe knowingly, intelligently, and voluntarily engaged her attorneys to request records relevant to her claim arising from the poor judgment and egregious conduct of three young men after a basketball game on March 9, 2014. We disrespect Doe when we distract away from the facts, or deny the horror, of what she endured that night.

Finally, for Dumbing down, on the advice of counsel, UOM may decline to answer those questions and remain silent. Probably good advice.

That dialog begins with the definition of confidential communication under Oregon Law, but first we need a few ground rules. Will you answer my questions directly and respond thoroughly to the concerns of your readers?

I appreciate and respect that this is Bill’s private blog where he can demand answers from commenters. I am prepared to provide answers, but would appreciate some reasonable reciprocity. Hence, a dialog. Until then, I accept that the Oregonian was reasonably accurate about this matter on January 29,

[Responding to a nervous request from Harbaugh, Coltrane agreed to waive attorney-client privilege that might have made the 55-year-old professor liable for releasing privileged information in a UO lawyer’s 2012 memo advocating dissolution of the Faculty Senate.

“I think attorney-client privilege is important,” Coltrane said.

“I can guarantee I’m a better muckraker than I would be a university president,” said Harbaugh, granting that administrators have difficult jobs.]

If we accept the “Doug Park go Wacko” UOM headline, surely we can also accept the Oregonian reference to UOM liability.

Federal Litigator: “I appreciate and respect that this is Bill’s private blog where he can demand answers from commenters. I am prepared to provide answers, but would appreciate some reasonable reciprocity. Hence, a dialog. Until then, I accept that the Oregonian was reasonably accurate about this matter on January 29, …”

Instead of depending on the Oregonian’s accuracy on January 29th, why not go back and watch the Senate meeting of January 28th and decide for yourself.

http://senate.uoregon.edu/content/2014-2015-senate-meetings