In re: Sealed Case

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2004 Decided August 31, 2004

No. 03-7021

IN RE: SEALED CASE (MEDICAL RECORDS)

Consolidated with
03–7066

Appeals from the United States District Court
for the District of Columbia
(No. 02cv00401)

Lois R. Goodman argued the cause and filed the briefs for
appellant.
Harvey S. Williams, pro hac vice, argued the cause for
appellees. With him on the brief was Patrick A. Malone.

Before: SENTELLE, TATEL, and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

GARLAND, Circuit Judge: The appellant, an adult male who
is a committed ward of the District of Columbia Mental
Retardation and Developmental Disabilities Administration
(MRDDA), appeals from a district court order requiring
MRDDA to produce all of his records to counsel for plaintiffs
who are suing MRDDA and the District. We conclude that
the court abused its discretion by ordering production of the
records without determining whether any are subject to the
federal psychotherapist privilege recognized in Jaffee v. Red-
mond, 518 U.S. 1 (1996), and without weighing the probative
value of the non-privileged records against the extent of the
intrusion into the appellant’s legitimate privacy interests.
We therefore vacate the order and remand for further pro-
ceedings.

I
The plaintiffs in the district court — the appellees here —
are ‘‘two mentally retarded adult men’’ who are ‘‘wards of the
District of Columbia government’’ and for whose care and
well-being MRDDA is responsible. Compl. ¶¶ 1, 9. For
several years during the 1990s they lived in a residential
group home at 2303 Minnesota Avenue, S.E. The appellant
here also is a ‘‘mentally retarded adult’’ man and ‘‘committed
ward’’ of the District. Appellant’s Br. at 1. He lived in the
same group home beginning in mid–1997.
According to the complaint, the appellant sexually assault-
ed the plaintiffs at the group home. Compl. ¶¶ 12, 15. The
complaint further alleges that, although the resident director
of the facility notified District officials of those assaults, the
District did nothing to protect the plaintiffs until it moved the
appellant to another facility on August 31, 1998. The plain-
tiffs seek damages from the District under 42 U.S.C. § 1983
for violating their civil rights, and under various District of
Columbia causes of action, including negligence.1 The com-
plaint asserts that the district court has federal question
1 The plaintiffs have joined as defendants the corporation and
individuals who owned and operated the group home, as well as the
MRDDA case worker assigned to the plaintiffs.
 3

jurisdiction over the § 1983 claim, see Compl. ¶ 2 (citing 28
U.S.C. § 1331), and supplemental jurisdiction over the local
law claims, id. (citing 28 U.S.C. § 1367(a)).
During pre-trial proceedings, the plaintiffs moved to com-
pel production of the District of Columbia’s ‘‘complete files’’
on the appellant. The District took no position on whether
the files should be produced, either at that time or subse-
quently. On October 11, 2002, the district court granted the
motion, directing that ‘‘the files of [appellant] shall be pro-
duced for inspection by the plaintiffs’ counsel,’’ and requiring
that they be ‘‘treated as confidential’’ and used ‘‘only TTT in
connection with this litigation.’’ Order, No. 02–401 (D.D.C.
Oct. 11, 2002) (hereinafter October 2002 Order).
Thereafter, the appellant’s guardian ad litem, appointed by
the Superior Court of the District of Columbia, entered a
special appearance to represent the appellant in connection
with the requests for his ‘‘medical and ward files.’’ Objecting
to the breadth of the district court’s discovery order, and
contending that the documents were subject to a number of
privileges, the guardian filed a motion for reconsideration and
for a more extensive protective order pursuant to Federal
Rule of Civil Procedure 26(c). Unconsented Mot. for Ct. to
Reconsider at 1. On February 14, 2003, the district court
denied the motion to reconsider and ordered that ‘‘defendant
District of Columbia shall produce the relevant medical rec-
ords of [appellant] to plaintiffs’ counsel in accordance with the
prior Order of this CourtTTTT’’ Order, No. 02–401 (D.D.C.
Feb. 14, 2003) (hereinafter February 2003 Order).
The plaintiffs then asked the court for clarification, con-
tending that the District should produce the appellant’s ‘‘en-
tire file,’’ regardless of whether the records were ‘‘relevant’’
or ‘‘medical.’’ 5/15/03 Tr. at 3, 4, 12. At a hearing conducted
on May 15, 2003, the plaintiffs insisted that they were ‘‘enti-
tled to receive any documents that might reasonably lead to
the discovery of admissible evidence,’’ and that they did not
‘‘want someone else saying, Well, we don’t think this is
relevant when we might in fact think it is relevant.’’ Id. at
12. The appellant’s guardian objected on the ground that
 4

some of the documents were privileged and confidential, and
that the court had not weighed the plaintiffs’ interest in the
documents against the appellant’s privacy interest. Id. at 5–
11. The court nonetheless granted the plaintiffs’ request and
directed that their counsel be allowed ‘‘to review the entire
file and to tab those records that he believes will serve his
evidentiary purposes in connection with this case.’’ Id. at 15.
The court further instructed plaintiffs’ counsel to prepare a
written order, which the court entered on August 7, 2003.
The order stated:
[T]he mental retardation records of [appellant], including
medical records and case notes, in the possession of
defendant District of Columbia [shall] be made available
to counsel for plaintiffs for review. Counsel for plaintiffs
shall designate which records are to be produced in
connection with this caseTTTT
Order at 1–2, No. 02–401 (D.D.C. Aug. 7, 2003) (hereinafter
August 2003 Order).
The appellant, through his guardian ad litem, appealed the
August 2003 Order requiring production of his MRDDA files.2
On October 28, 2003, another panel of this court granted a
stay of production pending appeal. We now consider the
issues raised by the appellant.

II
We begin with a question of appellate jurisdiction. Plain-
tiffs-appellees contend that we lack jurisdiction because the
district court’s order was merely an interlocutory discovery
order, rather than a final order subject to our review pursu-
ant to 28 U.S.C. § 1291. Ordinarily, a decision is not consid-
ered final under § 1291 unless it ‘‘ends the litigation on the
2 The appellant also seeks review of the district court’s February
2003 Order, and further contends that the lower court still considers
the October 2002 Order to be ‘‘live’’ as well. Appellant’s Br. at 21–
22. Because both sides agree that the August 2003 Order super-
sedes the prior orders, we vacate those prior orders as moot. See
United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).
 5

merits and leaves nothing for the court to do but execute the
judgment.’’ Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
712 (1996) (internal quotation marks omitted). Under the
collateral order (Cohen) doctrine, however, an order qualifies
as ‘‘final’’ under § 1291 if it: ‘‘(1) conclusively determine[s]
the disputed question, (2) resolve[s] an important issue com-
pletely separate from the merits of the action, and (3) [is]
effectively unreviewable on appeal from a final judgment.’’
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993) (internal quotation marks
omitted); see Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949).
The application of the collateral order doctrine to the
discovery order at issue here is controlled by our recent
decisions in United States v. Philip Morris Inc., 314 F.3d 612
(D.C. Cir. 2003), and In re England, 375 F.3d 1169 (D.C. Cir.
2004). In those cases, we concluded that orders compelling
production of allegedly privileged information satisfied the
three criteria for collateral review. See Philip Morris, 314
F.3d at 615–16 (attorney-client privilege); England, 375 F.3d
at 1175–76 (statutory non-disclosure provision covering Navy
selection board proceedings); see also Pearson v. Miller, 211
F.3d 57, 64 (3d Cir. 2000) (holding that the collateral order
doctrine permitted appeal from an order compelling the pro-
duction of records relating to the ‘‘violent sexual proclivities’’
of an individual, where the individual contended the records
were protected by state and federal privileges). The same
analysis applies to the order in this case, which overrode the
appellant’s claims of a number of privileges.
First, by compelling production notwithstanding the appel-
lant’s claims of privilege, the order ‘‘conclusively and finally
determined’’ that the documents were not protected from
disclosure to plaintiffs’ counsel by any privilege. Philip
Morris, 314 F.3d at 617. As in Philip Morris, ‘‘[i]n no way
does the record suggest that the district court’s conclusion is
tentative or subject to revision.’’ Id. The plaintiffs dispute
the conclusiveness of the district court’s order on the ground
that it requires disclosure only to counsel; disclosure for use
at trial requires a further decision by the court. But the
 6

order is final with respect to that initial disclosure, and if the
documents are privileged — a point we must accept as true
for purposes of deciding this jurisdictional question — an
involuntary disclosure to the plaintiffs’ counsel breaches the
privilege. Although the appellant may suffer additional inju-
ry if additional disclosure is later permitted, that does not
diminish the original injury or make the court’s authorization
of it any less final.
Second, the issue is both completely separate from the
merits and important. Just as was the case for the attorney-
client privilege in Philip Morris, ‘‘the privilege question’’ here
‘‘is separable from the merits of the underlying case.’’ Id.;
see England, 375 F.3d at 1175. And like the attorney-client
privilege, the privileges at issue here are ‘‘ ‘important’ in
Cohen’s sense,’’ in that they are ‘‘weightier than the societal
interests advanced by the ordinary operation of final judg-
ment principles.’’ Digital Equip. Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 879 (1994). As we discuss below, the
appellant’s privilege claims fall into two categories: the feder-
al psychotherapist privilege and D.C. statutory medical-
records privileges. The Supreme Court has determined that
the psychotherapist privilege is important enough to rank
with the attorney-client privilege as one of only a handful of
privileges cognizable under Federal Rule of Evidence 501.
Jaffee, 518 U.S. at 9–10. ‘‘Like the spousal and attorney-
client privileges,’’ the Court said, ‘‘the psychotherapist-patient
privilege is rooted in the imperative need for confidence and
trust,’’ and ‘‘promotes sufficiently important interests to out-
weigh the need for probative evidence.’’ Id. at 9–10 (internal
quotation marks omitted). The District of Columbia has
similarly indicated the importance it attaches to the other
(perhaps overlapping) privileges claimed by the appellant by
specifically according them statutory protection. Cf. Eng-
land, 375 F.3d at 1176 (noting that a federal statutory non-
disclosure provision was an indication of the ‘‘importance’’ of a
protected interest for purposes of the Cohen doctrine); Pear-
son, 211 F.3d at 64 (concluding that a claim that state
statutory confidentiality provisions should be recognized as
federal evidentiary privileges was important for purposes of
Cohen).
 7

Third, the order will be effectively unreviewable on appeal
from a final judgment. The district court has ordered the
District of Columbia to turn over the appellant’s records to
plaintiffs’ counsel. The District has indicated that, absent our
intervention, it will follow that order. See Am. Notice of
Defs. Regarding Production of Records at 1. At that point,
‘‘the entirety of the [records] will have been disclosed to third
parties, making the issue of privilege effectively moot.’’ Phil-
ip Morris, 314 F.3d at 619. As our prior cases have re-
peatedly noted, ‘‘appeal after final judgment is obviously not
adequate in [privilege] cases — the cat is out of the bag.’’
England, 375 F.3d at 1176 (quoting In re Papandreou, 139
F.3d 247, 251 (D.C. Cir. 1998)); see Philip Morris, 314 F.3d
at 619 (same).
We therefore conclude that the criteria for invocation of the
collateral order doctrine are satisfied, and that we properly
have jurisdiction over appellant’s appeal. We note that ap-
pellate jurisdiction is also supported here by the rationale of
the Perlman doctrine, which holds that ‘‘a discovery order
directed at a disinterested third party is treated as an imme-
diately appealable final order because the third party presum-
ably lacks a sufficient stake in the proceeding to risk con-
tempt by refusing compliance.’’ Church of Scientology v.
United States, 506 U.S. 9, 18 n.11 (1992) (citing Perlman v.
United States, 247 U.S. 7, 13 (1918)). Although the document
custodian in this case, the District of Columbia, is not a
‘‘disinterested third party,’’ we have applied Perlman when
one party seeks documents in the hands of another and a
nonparty claims to possess a privilege in the documents. See
United States v. AT&T, 642 F.2d 1285, 1296 (D.C. Cir. 1980)
(holding that an appeal should be permitted because the
nonparty appellant ‘‘was not the object of the document
demand and could therefore not possibly refuse disclosure
and undergo a contempt citation as a means to appeal’’).3
Moreover, whatever the District’s degree of interest in the
disposition of the documents, it has raised no objection to
3 See also In re Sealed Case, 141 F.3d 337, 340 (D.C. Cir. 1998)
(noting that Perlman ‘‘reflected concern that where the subject of
 8

producing them and, to the contrary, has unequivocally stated
its intention to do so upon court order. See In re Sealed
Case, 146 F.3d 881, 883 (D.C. Cir. 1998) (holding that ‘‘[t]he
Perlman doctrine applies here because the [custodian] swore
TTT an intention to produce the documents rather than submit
to a contempt citation’’).4

III
In this Part, we consider the appellant’s claims of privilege
regarding the documents subject to the district court’s discov-

the discovery order (characteristically the custodian of the docu-
ments) and the holder of a privilege are different, the custodian
might yield up the documents rather than face the hazards of
contempt, and would thereby destroy the privilege’’); In re Grand
Jury Investigation of Ocean Transp., 604 F.2d 672, 673 (D.C. Cir.
1979); 15B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3914.23, at 156 (2d ed. 1992) (hereinafter WRIGHT &
MILLER) (noting that the Perlman doctrine ‘‘allows appeal by a
person who cannot control the decision whether to act in con-
tempt’’).
4 The plaintiffs note in their ‘‘Statement of the Case’’ that they
objected in the district court to the appellant’s standing to oppose
production of his records, on the ground that he was not named as a
party defendant and had not moved to intervene. Appellees’ Br. at
3. They do not, however, raise such a standing objection on this
appeal. There certainly is no question regarding the appellant’s
constitutional standing, as his privacy interest in the records creates
the necessary case or controversy. Cf. Devlin v. Scardelletti, 536
U.S. 1, 6–7 (2002). The Supreme Court has ‘‘never TTT restricted
the right to appeal to named parties to [a] litigation,’’ id. at 7, and
‘‘if the decree affects [a third party’s] interests, he is often allowed
to appeal.’’ Castillo v. Cameron County, 238 F.3d 339, 349 (5th Cir.
2001) (internal quotation marks omitted). ‘‘Thus, a non-party may
appeal orders for discovery if he has no other effective means of
obtaining review.’’ Id. Moreover, courts of appeals have construed
a district court’s decision to permit a non-party to participate in a
discovery dispute as the equivalent of authorizing intervention. See
Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 784 (1st Cir.
1988); Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 294–95
 9

ery order. We review a district court’s discovery rulings for
abuse of discretion. Macharia v. United States, 334 F.3d 61,
64 (D.C. Cir. 2003); Food Lion, Inc. v. United Food &
Commercial Workers Int’l Union, 103 F.3d 1007, 1012 (D.C.
Cir. 1997). Because a ‘‘district court by definition abuses its
discretion when it makes an error of law,’’ the ‘‘abuse-of-
discretion standard includes review to determine that the
discretion was not guided by erroneous legal conclusions.’’
Koon v. United States, 518 U.S. 81, 100 (1996).
In subpart A, we consider whether federal or state privi-
lege law applies to the district court’s discovery order.5 In
subpart B, we examine the federal psychotherapist privilege.
In subpart C, we address the appropriate disposition for
those documents that, although outside the scope of the
federal privilege, implicate the privacy concerns reflected in
District of Columbia statutory privileges.

A
Rule 501 of the Federal Rules of Evidence states:
Except as otherwise required by the Constitution of the
United States or provided by Act of Congress or in rules
prescribed by the Supreme Court pursuant to statutory
authority, the privilege of a witness, person, government,
State, or political subdivision thereof shall be governed
by the principles of the common law as they may be
interpreted by the courts of the United States in the
light of reason and experience. However, in civil actions
and proceedings, with respect to an element of a claim or

(2d Cir. 1979); In re Beef Indus. Antitrust Litig., 589 F.2d 786, 789
(5th Cir. 1979).
5 For purposes of pendent (supplemental) jurisdiction analysis, we
treat the District of Columbia as if it were a state. See, e.g.,
Dimond v. District of Columbia, 792 F.2d 179, 188 & n.6 (D.C. Cir.
1986); see also Hall v. Ford, 856 F.2d 255, 267 (D.C. Cir. 1988) (‘‘In
considering this pendent claim, we are of course bound by the law
of the District of Columbia, as authoritatively interpreted by the
D.C. Court of Appeals.’’).
 10

defense as to which State law supplies the rule of deci-
sion, the privilege of a witness, person, government,
State, or political subdivision thereof shall be determined
in accordance with State law.
FED. R. EVID. 501.6 It is thus clear that when a plaintiff
asserts federal claims, federal privilege law governs, but
when he asserts state claims, state privilege law applies.
What is unclear is the proper resolution in a case like this,
where the plaintiffs assert both federal and state claims, and
relevant evidence may be privileged under one but not the
other. See Jaffee, 518 U.S. at 17 n.15 (noting the problem but
finding its resolution unnecessary to decide that case); 23
CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL
PRACTICE AND PROCEDURE § 5434, at 861–64 (2d ed. 1980 &
Supp. 2004) (hereinafter WRIGHT & GRAHAM) (noting uncertain
legislative history and suggesting various methods of resolu-
tion).
‘‘The usual solution by the courts’’ in such cases ‘‘has been
a preference for federal privilege law when it conflicts with
state privilege law.’’ 3 JOSEPH M. MCLAUGHLIN ET AL., WEIN-
STEIN’S FEDERAL EVIDENCE § 501.02[2][c], at 501–14 (2d ed.
2004) (hereinafter WEINSTEIN’S) (collecting cases).7 There is
6 See also FED. R. EVID. 1101(c) (providing that the ‘‘rule with

respect to privileges applies at all stages of all actions, cases, and
proceedings’’); 8 WRIGHT & MILLER § 2016, at 221 (noting that the
usual view is that ‘‘the same rules of privilege apply to discovery as
apply at the trial’’).
7 See Virmani v. Novant Health Incorp., 259 F.3d 284, 287 n.3
(4th Cir. 2001) (‘‘We agree with our sister circuits that in a case
involving both federal and [pendent] state law claims, the federal
law of privilege applies.’’); Pearson, 211 F.3d at 66 (finding that
Rule 501 directs the courts to apply federal privilege law where the
material is relevant to both federal and state claims); Hancock v.
Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992) (holding that ‘‘the
existence of pendent state law claims does not relieve us of our
obligation to apply the federal law of privilege’’); Hancock v. Hobbs,
967 F.2d 462, 466 (11th Cir. 1992) (noting that ‘‘when the federal
and state laws of privilege are in conflict,’’ courts ‘‘have uniformly
held that the federal law of privilege governs even where the
 11

much to be said for this approach. Where a document is
relevant to both federal and state claims but the federal and
state privilege rules are inconsistent, the application of an
inconsistent state rule in either direction could undermine the
federal evidentiary interest — either by barring disclosure of
a document that federal law permits a party to see, or by
requiring the disclosure of a document that federal law
protects from prying eyes. At least with respect to discov-
ery, ‘‘it would be meaningless to hold the communication
privileged for one set of claims and not for the other.’’
Memorial Hosp., 664 F.2d at 1061 n.3.8 And where the
primary source of the court’s jurisdiction is the federal claim,
to which the state claim is merely pendent (supplemental), it
seems appropriate that the federal evidentiary interest —
whether in privilege or production — should be primary as
well.
Unfortunately, neither the district court nor the parties
have addressed this question, and we hesitate to decide it
conclusively (and for the first time in this circuit) without the
benefit of briefing. Fortunately, it does not appear that we
have to do so to resolve this appeal. As we discuss below, the

evidence sought [in discovery] might be relevant to a pendent state
claim’’); Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367 n.10
(9th Cir. 1992) (holding that federal privilege law applies in a case
involving both federal and pendent state claims); von Bulow v. von
Bulow, 811 F.2d 136, 141 (2d Cir. 1987) (declaring that, where the
evidence sought ‘‘is relevant to both the federal and [pendent] state
claims,’’ courts ‘‘consistently have held that the asserted privileges
are governed by the principles of federal law’’); Memorial Hosp. v.
Shadur, 664 F.2d 1058, 1061 n.3 (7th Cir. 1981) (concluding that the
fact that a complaint asserts a pendent state claim does not change
the applicability of federal privilege law). But see Motley v. Mara-
thon Oil Co., 71 F.3d 1547, 1551 (10th Cir. 1995) (looking to state
privilege law for state cause of action in a case with both federal
and state claims).
8 See 23 WRIGHT & GRAHAM § 5434, at 862 n.20 (contemplating a
rule in which, although evidence is discoverable despite a claim of
state privilege, a court ‘‘might still rule that the evidence was
inadmissible on the state claim at the time of trial’’).
 12

federal psychotherapist privilege requires the withholding of
some documents (if they exist) as absolutely privileged, and
the D.C. statutes appear to be at least as protective. See
infra note 9. Whether or not additional documents are
subject to privilege under state law, Federal Rule of Civil
Procedure 26 at least requires the district court to weigh the
appellant’s privacy interest in those documents against the
plaintiffs’ need for them before it orders production. Because
the court did not undertake such a weighing, a remand is
required in any event. Until that weighing is complete and
the court decides which (if any) documents still must be
produced over the appellant’s objection, we need decide nei-
ther whether a state privilege would cover such hypothetical
documents, nor (if it would) whether state privilege law is
applicable to the plaintiffs’ claims.

B
In Jaffee v. Redmond, the Supreme Court held that ‘‘confi-
dential communications between a licensed psychotherapist
and her patients in the course of diagnosis or treatment are
protected from compelled disclosure’’ — including from com-
pelled production pursuant to pretrial discovery — under
Rule 501. 518 U.S. at 15; see id. at 6. The Court also
extended this federal psychotherapist privilege ‘‘to confiden-
tial communications made to licensed social workers in the
course of psychotherapy.’’ Id. at 15. Thus, any ‘‘conversa-
tions between’’ the appellant and a licensed psychotherapist
or social worker ‘‘and the notes taken during their counseling
sessions are protected from compelled disclosure under Rule
501 of the Federal Rules of Evidence.’’ Id. at 6, 18. District
of Columbia statutory provisions appear to provide a privilege
at least as broad.9
9 See D.C. CODE § 7–1201.02 (providing that, except in specific
instances not applicable here, ‘‘no mental health professional, men-
tal health facility, data collector or employee or agent of a mental
health professional, mental health facility or data collector shall
disclose or permit the disclosure of mental health information to any
person, including an employer’’); id. § 7–1201.03 (providing that the
 13

Although the district court did not address Jaffee directly,
it did state generally that ‘‘privileges are qualified or condi-
tional for a number of reasons, including in the interests of
justice.’’ See 5/15/03 Tr. at 10. That statement is incorrect
with respect to the psychotherapist privilege. In Jaffee, the
Court flatly rejected the suggestion that the privilege was
subject to balancing. 518 U.S. at 17. ‘‘Making the promise
of confidentiality contingent upon a trial judge’s later evalua-
tion of the relative importance of the patient’s interest in
privacy and the evidentiary need for disclosure,’’ the Court
said, ‘‘would eviscerate the effectiveness of the privilege.’’ Id.
Accordingly, the district court may not permit the plaintiffs’
counsel to see materials covered by this privilege, regardless
of its assessment of ‘‘the interests of justice.’’
The appellant’s guardian has represented that she has
reviewed the appellant’s MRDDA files, and that they do
contain confidential communications to mental health workers
in the course of psychotherapy. Oral Arg. Tape at 2:10–2:25.
We, of course, do not know whether that is correct. But the
district court and plaintiffs did not know either. Nonetheless,
the court ordered disclosure of all of the appellant’s records,

‘‘personal notes’’ taken by a mental health professional regarding a
client ‘‘shall not be disclosed except to the degree that [they] TTT
are needed in litigation brought by the client against the mental
health professional’’); see also id. § 7–1305.12 (providing that ‘‘[a]ll
information contained in a [mentally retarded] customer’s records
shall be considered privileged and confidential’’). In addition to the
provisions just cited, appellant also cites D.C. Code § 14–307, which
states: ‘‘In the Federal courts in the District of Columbia and
District of Columbia courts TTT [a] mental health professional TTT
may not be permitted TTT to disclose any information, confidential
in its nature, that he has acquired in attending a client in a
professional capacityTTTT’’ Both this court and the D.C. Court of
Appeals, however, have construed that section ‘‘as creating a mere
in-court evidentiary privilege,’’ inapplicable to the pretrial produc-
tion of documents. Doe v. Stephens, 851 F.2d 1457, 1464 (D.C. Cir.
1988); see Richbow v. District of Columbia, 600 A.2d 1063, 1068
(D.C. 1991); Vassiliades v. Garfinckel’s, Brooks Bros., Miller &
Rhoades, Inc., 492 A.2d 580, 591 (D.C. 1985).
 14

without regard to their content and without screening them in
any way. Because that order could compel the disclosure of
material subject to a federal privilege, it constitutes an abuse
of the district court’s discretion.

C
The federal psychotherapist privilege recognized in Jaffee
extends no further than confidential communications between
licensed mental health professionals and their patients. Jaf-
fee, 518 U.S. at 15; see id. at 10. The appellant cites no other
federal privilege, but does cite several provisions of the D.C.
Code that appear to extend privacy protection to appellant’s
files well beyond the protection accorded by Jaffee. See
supra note 9. We have been unable to find District of
Columbia cases that delineate the scope of those asserted
statutory privileges in any way that is relevant here.10 But
regardless of whether the statutory provisions afford privi-
leges that would of themselves bar disclosure of documents in
the appellant’s file, those provisions should at least inform a
district court’s determination of whether to compel production
of the documents under Federal Rule of Civil Procedure 26.
Rule 26(b)(1), under which the plaintiffs sought discovery of
the appellant’s file, provides as follows:
Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
partyTTTT For good cause, the court may order discov-
10 The District of Columbia courts have denoted certain narrow
exceptions that do not apply to this case. See, e.g., Jackson v.
United States, 623 A.2d 571, 583 (D.C. 1993) (stating, with respect
to D.C. CODE § 6–2002 (the precursor of § 7–1201.02), that although
the section restricts disclosure of mental health records to any
person, an individual’s interest in confidentiality ‘‘may have to yield
where the right of the defense to cross-examine a witness in a
criminal case must be accorded protection’’); In re O.L., 584 A.2d
1230, 1233 (D.C. 1990) (holding that the child-neglect proceedings
provision of D.C. CODE § 2–1355 is an exception to § 6–2002).
 15

ery of any matter relevant to the subject matter involved
in the action. Relevant information need not be admissi-
ble at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
All discovery is subject to the limitations imposed by
Rule 26(b)(2)(i), (ii), and (iii).
FED. R. CIV. P. 26(b)(1) (emphasis added). The last sentence
of Rule 26(b)(1) was added in 2000 ‘‘to emphasize the need for
active judicial use of subdivision (b)(2) to control excessive
discovery.’’ FED. R. CIV. P. 26(b)(1) advisory committee’s note
(2000).11 Subdivision (b)(2) — entitled ‘‘Limitations’’ — in turn
provides:
[The] extent of use of the discovery methods otherwise
permitted under these rules TTT shall be limited by the
court if it determines that TTT (iii) the burden or expense
of the proposed discovery outweighs its likely benefit,
taking into account the needs of the case, TTT the impor-
tance of the issues at stake in the litigation, and the
importance of the proposed discovery in resolving the
issues. The court may act upon its own initiative after
reasonable notice or pursuant to a motion under Rule
26(c).
FED. R. CIV. P. 26(b)(2). Finally, Rule 26(c), entitled ‘‘Protec-
tive Orders’’ and referred to in the last sentence of subdivi-
sion (b)(2), authorizes the court,
for good cause shown, TTT [to] make any order which
justice requires to protect a party or person from annoy-
ance, embarrassment, oppression or undue burden or
expense, including one or more of the following: TTT (4)
that certain matters not be inquired into, or that the
11 The 2000 amendments also inserted the sentences distinguish-
ing between discovery relevant to claims or defenses and discovery
‘‘for good cause’’ of matters relevant to the subject matter of the
action. That change, too, was ‘‘designed to involve the court more
actively in regulating the breadth of sweeping or contentious discov-
ery.’’ FED. R. CIV. P. 26(b)(1) advisory committee’s note (2000).
 16

scope of the disclosure or discovery be limited to certain
mattersTTTT
FED. R. CIV. P. 26(c).
As a whole, ‘‘Rule 26 vests the trial judge with broad
discretion to tailor discovery narrowly.’’ Crawford-El v. Brit-
ton, 523 U.S. 574, 598 (1998). And ‘‘[i]t is appropriate for the
court, in exercising its discretionTTT, to undertake some
substantive balancing of interestsTTTT’’ Laxalt v. McClatchy,
809 F.2d 885, 890 (D.C. Cir. 1987); see United States v.
Microsoft Corp., 165 F.3d 952, 960 (D.C. Cir. 1999) (holding
that Rule 26(c)’s ‘‘ ‘good cause’ standard TTT is a flexible one
that requires an individualized balancing of the many inter-
ests that may be present in a particular case’’). In particular,
‘‘[a]lthough [Rule 26(c)] contains no specific reference to
privacy or to other rights or interests that may be implicated,
such matters are implicit in the broad purpose and language
of the Rule.’’ Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35
n.21 (1984). Hence, in exercising their discretion under the
rule, courts have long ‘‘recognized that interests in privacy
may call for a measure of extra protection,’’ even where the
information sought is not privileged. FED. R. CIV. P. 26(b)
advisory committee’s note (1970) (referring to income tax
returns, which are ‘‘generally held not privileged’’); see Pear-
son, 211 F.3d at 72 (holding that ‘‘[l]egitimate interests in
privacy are among the proper subjects of’’ Rule 26(c)’s protec-
tion).
Moreover, in determining which interests to weigh in the
Rule 26 balance, courts look to statutory confidentiality provi-
sions, even if they do not create enforceable privileges. In
Laxalt v. McClatchy, for example, we noted that, although
the Privacy Act, 5 U.S.C. § 552a, did not create a qualified
discovery privilege, the fact that a document was subject to
the Act was not ‘‘irrelevant to the manner in which discovery
should proceed.’’ 809 F.2d at 889. To the contrary, we held
that ‘‘[w]here the actual content of the record has the poten-
tial to cause harm to the affected party, a court supervising
discovery should consider this factor in determining how to
 17

exercise its traditional authority to limit disclosure.’’ Id. at
890; see also Microsoft, 165 F.3d at 959–60.
The Seventh Circuit made a similar point in a case raising
issues close to those we face here. In Northwestern Memori-
al Hospital v. Ashcroft, a district court had quashed a sub-
poena for patients’ medical records based on a state eviden-
tiary privilege (which, the district court held, trumped a less
stringent federal regulation pursuant to the operation of a
specific federal statute). 362 F.3d 923, 924–27 (7th Cir. 2004).
Relying on Rule 501, the court of appeals held that the state
evidentiary privilege did not apply in a suit to enforce federal
law. Id. at 926. Nonetheless, relying on a provision of Rule
45 (governing subpoenas) similar to Rule 26(b)(2)(iii) and (c),12
it affirmed the district court’s disposition because there was
only ‘‘the possibility’’ that the records might have something
probative in them, while their disclosure would cause ‘‘the loss
of privacy by the patients,’’ id. at 927. Particularly relevant
here, the Seventh Circuit held that ‘‘[t]he fact that quashing
the subpoena comports with Illinois’ medical-records privi-
lege’’ was a ‘‘factor in favor of the district court’s action.’’ Id.
at 932. ‘‘Comity,’’ the court said, did not require it ‘‘to apply
the Illinois privilege,’’ but did require it ‘‘to consider with
special care the arguments for quashing the subpoena on the
basis of relative hardship under Fed. R. Civ. P. 45(c).’’ Id. at
933.
In sum, as the Third Circuit has likewise held, even where
an evidentiary ‘‘privilege is not available, a party may petition
the court for a protective order that limits discovery in
accordance with Rule 26(c).’’ Pearson, 211 F.3d at 65. And
the ‘‘court, in its discretion, is authorized by this subsection to
fashion a set of limitations that allows as much relevant
material to be discovered as possible, while preventing unnec-
essary intrusions into the legitimate interests — including
privacy and other confidentiality interests — that might be
harmed by the release of the material sought.’’ Id.; see id. at
12Rule 45(c)(3)(A) provides that the court ‘‘shall quash or modify
the subpoena if it TTT (iv) subjects a person to undue burden.’’
FED. R. CIV. P. 45(c)(3)(A)(iv).
 18

61 (holding that, although a state mental-health-records privi-
lege was inapplicable, the appellants had ‘‘legitimate concerns
regarding the confidentiality of the information sought’’ that
should be ‘‘addressed in the context of the District Court’s
power to impose reasonable limits on the discovery of infor-
mation pursuant to Federal Rule of Civil Procedure 26(c)’’).
In this case, the district court undertook no balancing of
competing interests at all. As its August 2003 Order makes
clear, it required production of the appellant’s entire MRDDA
file — regardless of whether the material was privileged,
regardless of whether it was relevant to a claim or defense,
regardless even of whether it was relevant to the subject
matter of the case. August 2003 Order at 1–2. At the
request of plaintiffs’ counsel, the preceding (February 2003)
order’s requirement of relevancy was jettisoned, and plain-
tiffs’ counsel was effectively deputized by the court to review
the records and determine which were relevant. See 5/15/03
Tr. at 15–16 (directing that plaintiffs’ counsel be allowed ‘‘to
review the entire file and to tab those records that he believes
will serve his evidentiary purposes’’).
The scope of this intrusion into the appellant’s privacy is
breathtaking. The court directed that plaintiffs’ counsel ‘‘be
permitted to review all records referred to in District of
Columbia Code section 7–1305.12.’’ 5/15/03 Tr. at 16. As the
appellant’s guardian correctly complained, and as the portion
of the statute set out in the margin makes manifest, that
section covers records involving ‘‘every area of the severely
mentally-retarded’s lives.’’ Id. at 6.13 There may well be
13 Section 7–1305.12 applies to the records of mentally retarded
‘‘customers,’’ who are defined as persons ‘‘admitted to or committed
to a facility TTT for habilitation or care,’’ id. § 7–1301.03(8B). The
section provides that ‘‘[c]omplete records for each customer shall be
maintained,’’ and directs that these records shall include:
(1) Identification data, including the customer’s legal status;
(2) The customer’s history, including but not limited to:
(A) Family data, educational background and employment
record;
 19

documents within that universe that are highly relevant to the
plaintiffs’ case because they ‘‘afford evidence of notice to the
District of Columbia that, as alleged in the complaint, [the
appellant was] a sexual predator’’ who was a threat to the
plaintiffs. 5/15/03 Tr. at 4 (explanation by plaintiffs’ counsel
of the relevance of the requested documents). And the

(B) Prior medical history, both physical and mental, includ-
ing prior institutionalization;

(3) The customer’s grievances, if any;
(4) An inventory of the customer’s life skills;
(5) A record of each physical examination TTT;
(6) A copy of the individual habilitation plan; and any modifica-
tions thereto TTT;
(7) The findings made in periodic reviews of the habilitation
plan which findings shall include an analysis of the successes
and failures of the habilitation program TTT;
(8) A medication history and status;
(9) A summary of each significant contact by a professional
person with a customer;
(10) A summary of the customer’s response to his or her
program, prepared and recorded at least monthly TTT;
(11) A monthly summary of the extent and nature of the
customer’s work activities and the effect of such activity upon
the customer’s progress along the habilitation plan;
(12) A signed order by a professional person, as set forth in
§ 7–1305.10(b), for any physical restraints;
(13) A description of any extraordinary incident or accident in
the facility involving the customer, TTT including any reports of
investigations of customer’s mistreatment;
(14) A summary of family visits and contacts;
(15) A summary of attendance and leaves from the facility;
and
(16) A record of any seizures, illnesses, treatments thereof, and
immunizations.
D.C. CODE § 7–1305.12.
 20

probative value of such documents may well outweigh the
appellant’s privacy interests. But it would be surprising if
there were not also documents that — although hugely
invasive of the appellant’s privacy — are of only marginal
relevance. And it would also be surprising if there were not
others that — while equally intrusive — have nothing at all to
do with the plaintiffs’ claims. By treating all of the MRDDA
documents alike, and thereby failing to weigh the appellant’s
privacy interest in a record against the record’s value to the
plaintiffs, the district court abused the discretion conferred
upon it by Rule 26. See In re Sealed Case, 856 F.2d 268, 272
(D.C. Cir. 1988) (holding that ‘‘[a]lthough a district court has
considerable leeway in weighing the different factors, the
failure to balance at all requires remand’’) (internal citation
omitted); LaSalle Extension Univ. v. FTC, 627 F.2d 481, 484
(D.C. Cir. 1980) (holding that ‘‘the district court abuses [its]
discretion when it fails to weigh’’ the relevant factors).

IV
We conclude that the district court abused its discretion by
requiring the District of Columbia to produce all of the
appellant’s ‘‘mental retardation records’’ to counsel for the
plaintiffs, August 2003 Order at 1, without protecting any
records that may be subject to the federal psychotherapist
privilege, and without weighing the appellant’s privacy inter-
ests against the plaintiffs’ evidentiary need for the remaining
records. We therefore vacate the court’s order and remand
the case for further proceedings.
On remand, the district court has a number of options. It
may, for example, permit the appellant’s guardian to conduct
an initial screening and produce any documents she concludes
are not privileged or confidential. As to any withheld docu-
ments, the court may require the guardian to produce the
‘‘privilege log’’ described in Rule 26(b)(5).14 If the log is
14 Rule 26(b)(5) provides:
When a party withholds information otherwise discoverable
under these rules by claiming that it is privileged TTT, the
 21

insufficient to enable the court to resolve the issue, it may
review the withheld documents in camera.15 And if the
volume of withheld documents is too large for the court’s own
review, the court may delegate the task to a magistrate
judge.16 But whether the district court employs this proce-
dure or one of its own devise, it may not compel production of
the appellant’s records without determining whether any are
subject to a federal privilege, and without weighing the
probative value of each of the non-privileged documents
against the extent of the intrusion into the appellant’s legiti-
mate privacy interests.
Vacated and remanded.

party TTT shall describe the nature of the documents, communi-
cations, or things not produced or disclosed in a manner that,
without revealing information itself privileged or protected, will
enable other parties to assess the applicability of the privilege
or protection.
FED. R. CIV. P. 26(b)(5).
15 Or, the court may skip the preliminaries and proceed directly

to in camera inspection. See United States v. Zolin, 491 U.S. 554,
568–69 (1989) (noting that the Supreme Court ‘‘has approved the
practice of requiring parties who seek to avoid disclosure of docu-
ments to make the documents available for in camera inspection’’);
Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344
(D.C. Cir. 1984) (noting that ‘‘[i]n camera inspection of allegedly
privileged documents TTT, when appropriate, [is an] accepted proce-
dure[ ] in this circuit’’).
16 See 28 U.S.C. § 636; FED. R. CIV. P. 72; Chudasama v. Mazda

Motor Corp., 123 F.3d 1353, 1370 n.40 (11th Cir. 1997).