UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4198
KIM KINDER,
Appellant,
v.
MICHAEL L. WHITE,
Defendant – Appellee,
and
UNITED STATES OF AMERICA,
Plaintiff.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:12-cr-00221-1)
Argued: October 30, 2013 Decided: April 22, 2015
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.
RUSSELL, III, United States District Judge for the District of
Maryland, sitting by designation.
Reversed by unpublished opinion. Chief Judge Traxler wrote the
majority opinion, in which Judge Russell joined. Judge Wynn
wrote a dissenting opinion.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. James
McCall Cagle, Charleston, West Virginia, for Appellee. ON
BRIEF: Mary Lou Newberger, Federal Public Defender, Lex A.
Coleman, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
TRAXLER, Chief Judge:
Kim Kinder was the government’s primary witness at trial
against Michael White, who was charged with arson-related
offenses arising from an October 2009 fire that destroyed a
duplex apartment building that White owned in Van, West
Virginia. See United States v. White, 771 F.3d 225 (4th Cir.
2014). The district court granted White’s pretrial motion for
production of Kinder’s mental health records for use during
cross-examination, rejecting the argument that the records were
protected from disclosure by the psychotherapist-patient
privilege. See Jaffee v. Redmond, 518 U.S. 1, 15 (1996). We
conclude that the district court’s order of disclosure was in
error. To the extent the district court has retained any of
Kinder’s mental health records, the court is required to return
or destroy them.
I.
Shortly before White was indicted for conspiring with
Kinder and Kinder’s husband to burn White’s duplex for the
insurance proceeds, Kinder pled guilty to a one-count
information charging her with conspiracy to commit arson in
violation of 18 U.S.C. § 844(i). In response to the district
court’s questions during the plea hearing, Kinder told the
court that she was taking numerous medications, including anti-
depressants, anti-anxiety drugs, and muscle relaxers. Kinder
3
also revealed to the court she had received, within the
preceding ten years, extensive psychiatric treatment. Kinder
claimed that she had been diagnosed with bipolar disorder and
schizophrenia. Kinder also explained that during that time
period, she was admitted—at least once involuntarily—as an
inpatient to four different hospital mental health units; the
most recent of these mental health admissions had occurred
approximately one year before the plea hearing.
Based on the information revealed by Kinder to the judge
during her plea hearing, White filed a pre-trial motion under
Criminal Rule 17(c) seeking “early production” of Kinder’s
medical records maintained by each of the four hospitals where
Kinder received inpatient treatment. Specifically, White wanted
each hospital to produce any document “relate[d] to Kim Kinder’s
psychiatric history, diagnosis, treatment and drug usage and
abuse.” J.A. 18. In support, White relied on a West Virginia
statute permitting access to confidential mental health records
if a court determines the relevance of such information
“outweigh[s] the importance of maintaining . . .
confidentiality.” W. Va. Code § 27-3-1(b)(3). The government
opposed production of such documents, arguing that Kinder’s
mental health records were protected from disclosure by the
therapist-patient privilege recognized by the Supreme Court in
Jaffee. See 518 U.S. at 15. Without objection, Kinder
4
intervened in the motion and filed an objection through counsel,
adopting the government’s argument with regard to privilege and
noting further that White did not need the records for
impeachment purposes since her mental health history was already
a matter of public record in the transcripts of her plea
colloquy. Kinder also appeared at the hearing on White’s pre-
trial motion and expressly invoked the therapist-patient
privilege. 1 The district court, relying on the West Virginia
statute, found “that the requested documents [were] sufficiently
relevant . . . to warrant in camera review,” J.A. 91, to
determine if White’s evidentiary need “outweigh[ed] the
importance of maintaining [Kinder’s] confidentiality,” W. Va.
Code § 27-3-1(b)(3). Thus, the district court entered a
preliminary order directing each of the four hospitals to
produce Kinder’s mental health records to the district court
alone for an in camera determination of admissibility.
After conducting its in camera review, the district court
determined that to the extent the hospital records revealed any
communications from Kinder to, or any diagnoses from, her
psychiatrists, they fell within the scope of the patient-
1
The parties agreed below that Kinder did not “waive[] her
privilege by responding to the [district court’s] questions at
the plea hearing.” J.A. 109.
5
therapist privilege. 2 The district court then “turn[ed] to the
question of whether the privilege may be overcome by the
assertion of [White’s] constitutional right to the confidential
materials.” J.A. 111. Observing that the psychotherapist-
patient privilege recognized in Jaffee is not absolute, see 518
U.S. at 18 n.19, the district court concluded that “[t]he
psychotherapist-patient privilege contemplates an exception
where necessary to vindicate a criminal defendant’s
constitutional rights.” J.A. 119. And, having concluded such
an exception exists, the district court considered whether
Kinder’s privacy rights protected by the privilege should give
way either to White’s Sixth Amendment right to effectively
confront the witnesses against him or to his right to a
fundamentally fair trial under the Due Process Clause of the
Fifth Amendment. Although the district court decided that White
2
The district court also concluded that there were
“significant portions” of Kinder’s records that did not come
within the scope of the therapist-patient privilege. J.A. 109.
For example, the district court determined that the privilege
did not protect any information provided by Kinder to emergency
room “triage” staff during the admitting process regarding her
mental health history or the particular reason for her visit.
J.A. 110. Nonetheless, the district court did not order the
disclosure of such records, finding that Kinder’s “self-reported
mental health history” during these “triage assessments” was
largely “identical to the history provided publicly” during her
plea hearing and therefore cumulative. J.A. 110. Accordingly,
we need not address whether information passed along for
purposes of a “triage assessment” would fall within the
privilege.
6
was not entitled to Kinder’s mental health records in order to
vindicate his rights under the Confrontation Clause, the court
concluded that White could obtain the records under the Due
Process Clause. The court reasoned that because Kinder was the
“central government witness against [White] and the . . . case
may well hinge on her credibility,” J.A. 123, White’s right to a
fundamentally fair trial entitled him to disclosure of mental
health records that were otherwise protected by the
psychotherapist-patient privilege. Accordingly, the district
court ordered the disclosure under seal of specified documents
that “cast[] substantial doubt on [Kinder’s] mental acuity
during the time of the purported conspiracy,” J.A. 124, and
raised questions about Kinder’s state of mind when she was
testifying before the grand jury and cooperating with the
government’s investigation of White. 3
II.
Kinder argues that in deciding whether her mental health
records were protected from disclosure by the psychotherapist-
patient privilege, the district court engaged in the type of
3
The district court indicated that “[w]ith the exception of
the limited disclosures the Court makes herein, these documents
will not be placed in the record unless a higher court orders
otherwise. The select documents the Court deems subject to
disclosure are provided under seal to provide limited access to
the parties to this case only, not the public at large.” J.A.
125.
7
balancing analysis expressly rejected by the Supreme Court in
Jaffee. We review a district court’s “evidentiary rulings,
including rulings on privilege, for abuse of discretion,” but we
review “factual findings as to whether a privilege applies for
clear error, and the application of legal principles de novo.”
United States v. Hamilton, 701 F.3d 404, 407 (4th Cir. 2012).
By definition, an abuse of discretion occurs if the court
commits “[a]n error of law.” United States v. Basham, 561 F.3d
302, 326 (4th Cir. 2009). We agree with Kinder that the court’s
use of the balancing approach was erroneous and that its
decision to disclose Kinder’s mental health records therefore
amounted to an abuse of discretion.
A.
Under Federal Rule of Evidence 501, matters of privilege in
federal courts are to be resolved based on the common law “as
interpreted by United States courts in the light of reason and
experience” unless it is contrary to the “United States
Constitution,” a “federal statute,” or the “rules prescribed by
the Supreme Court.” In Jaffee, the Supreme Court resolved a
circuit split when it “recognize[d] a psychotherapist privilege
under Rule 501” in the context of a § 1983 excessive force
action. 518 U.S. at 7. The Court concluded that a social
worker’s notes from her counseling sessions with the defendant
police officer were protected by the psychotherapist-patient
8
privilege from disclosure to the plaintiff for use in cross-
examination. The Supreme Court reasoned that “[e]ffective
psychotherapy . . . depends upon an atmosphere of confidence and
trust” and that “the mere possibility of disclosure” of
“confidential communications made during counseling sessions”
could hinder productive therapy. Id. at 10. “By protecting
confidential communications between a psychotherapist and her
patient from involuntary disclosure, the . . . privilege thus
serves important private interests.” Id. at 11. Most
importantly, the Court found that, like other testimonial
privileges, the psychotherapist privilege serves the greater
public interest by facilitating effective mental health care –
“a public good of transcendent importance.” Id. 4 The Court
concluded that a “privilege protecting confidential
communications between a psychotherapist and her patient
‘promotes sufficiently important interests to outweigh the need
for probative evidence.’” Id. at 9–10 (quoting Trammel v.
United States, 445 U.S. 40, 51 (1980)). In other words, the
public benefit produced by the recognition of the
4
The Supreme Court explained that “[t]he psychotherapist
privilege serves the public interest by facilitating the
provision of appropriate treatment for individuals suffering the
effects of a mental or emotional problem. The mental health of
our citizenry, no less than its physical health, is a public
good of transcendent importance.” Jaffee v. Redmond, 518 U.S.
1, 11 (1996).
9
psychotherapist-patient privilege is sufficiently weighty to
trump the cost to the administration of justice of precluding
the use of relevant evidence.
Of course, like other testimonial privileges, the
psychotherapist-patient privilege is not absolute. The Court
recognized that the privilege has limits but left the
delineation of boundaries for future cases: “Although it would
be premature to speculate about most future developments in the
federal psychotherapist privilege, we do not doubt that there
are situations in which the privilege must give way.” Id. at 18
n.19. The Court hinted at one potential exception—where “a
serious threat of harm to the patient or to others can be
averted only by means of a disclosure by the therapist.” Id.
Circuit courts, however, have disagreed over when a “dangerous
patient” exception to the privilege would apply, if at all. See
United States v. Glass, 133 F.3d 1356, 1360 (10th Cir. 1998)
(applying the Jaffee rule in a criminal case, and creating a
narrow exception to the rule where “disclosure [is] the only
means of averting [imminent] harm”); cf. United States v. Chase,
340 F.3d 978, 992 (9th Cir. 2003) (en banc) (refusing to
recognize a dangerous-patient exception to the Jaffee rule).
B.
In ordering the partial disclosure of Kinder’s psychiatric
records, the district court concluded that an exception to the
10
psychotherapist-patient privilege must be made “where [the
privileged information is] necessary to vindicate a criminal
defendant’s constitutional rights.” J.A. 119. And in this
particular case, the district court decided that because Kinder
was the star witness for the prosecution, it was necessary for
White to have this otherwise privileged evidence for impeachment
purposes in order to fully exercise his Fifth Amendment right to
a fundamentally fair trial.
In our view, this conclusion is demonstrably at odds with
both Jaffee and basic principles underlying the recognition of
testimonial privileges. All common law testimonial privileges
are inherently “in derogation of the search for truth,” United
States v. Nixon, 418 U.S. 683, 710 (1974); that is, privileges
constitute exceptions to the baseline rule “that the public . .
. has a right to every man’s evidence.” United States v. Bryan,
339 U.S. 323, 331 (1950) (internal quotation marks omitted).
“New or expanded privileges may be recognized only to the very
limited extent that permitting a refusal to testify or excluding
relevant evidence has a public good transcending the normally
predominant principle of utilizing all rational means for
ascertaining truth.” United States v. Sterling, 724 F.3d 482,
502 (4th Cir. 2013) (internal quotation marks omitted) (emphasis
added). Thus, a privilege must “serve[] public ends,” Upjohn
Co. v. United States, 449 U.S. 383, 389 (1981), that are more
11
important than the effect of denying the public the use of
relevant, probative evidence. Accordingly, when the Court
recognizes or expands a privilege under Rule 501, it necessarily
has already determined that the privilege in question “promotes
sufficiently important interests to outweigh the need for
probative evidence.” University of Pennsylvania v. EEOC, 493
U.S. 182, 189 (1990) (internal quotation marks omitted).
Jaffee applied this reasoning, holding that a “privilege
protecting confidential communications between a psychotherapist
and her patient promotes sufficiently important interests to
outweigh the need for probative evidence.” 518 U.S. at 9–10
(internal quotation marks omitted) (emphasis added). Thus,
before recognizing the existence of the psychotherapist
privilege under Rule 501, the Supreme Court in Jaffee first
compared the interests promoted by the privilege against
interests promoted by the general rule that the public is
entitled to “every man’s evidence.” But now that the
psychotherapist privilege has been recognized, it would be both
counterproductive and unnecessary for a court to weigh the
opponent’s evidentiary need for disclosure any time the
privilege is invoked. Indeed, Jaffee explicitly rejects such an
ad hoc balancing approach because it would frustrate the aim of
the privilege by making its application uncertain: “Making the
promise of confidentiality contingent upon a trial judge’s later
12
evaluation of the relative importance of the patient’s interest
in privacy and the evidentiary need for disclosure would
eviscerate the effectiveness of the privilege.” Id. at 17
(emphasis added).
Here, the district court appears to have employed precisely
such a weighing of Kinder’s privacy interest versus White’s
evidentiary need. White’s motion for disclosure was made
pursuant to a West Virginia statute that allows for disclosure
of privileged medical information if the court finds that “the
information is sufficiently relevant . . . to outweigh the
importance of maintaining the confidentiality.” W. Va. Code §
27-3-1(b)(3). The district court’s preliminary order directing
production of the records for in camera review relied expressly
on the West Virginia statute. The district court’s final order
of disclosure, while acknowledging Jaffe’s “ardent[] reject[ion
of] this context-specific, ad hoc approach to the applicability
of the privilege,” J.A. 111, ordered the disclosure of
privileged mental health records based on the “perfect storm of
facts” before it, including most significantly White’s need to
challenge the credibility of “the central government witness,”
J.A. 123. Such an analysis runs contrary to Jaffee, which made
clear the federal psychotherapist-patient privilege “is not
rooted in any constitutional right of privacy but in a public
good which overrides the quest for relevant evidence; the
13
privilege is not subject to a balancing component.” Glass, 133
F.3d at 1358 (internal quotation marks omitted).
We find no basis in the record to justify disclosure of
Kinder’s records that fall within the protective scope of the
psychotherapist privilege. Accordingly, we conclude that the
district court’s order of disclosure was in error. We reverse
the court’s ruling and direct that Kinder’s mental health
records, to the extent the district court has retained copies
thereof, be returned to the hospitals that produced the records
or be destroyed.
III.
Regarding the issue of waiver, given the novelty of this
area of the law and the fact that it has never been pursued—not
in this court on appeal or in the district court below—we
decline to address it. In fact, in the proceedings before the
district court, White’s counsel expressly told the district
court that White did not take the position that Kinder’s
statements at her Rule 11 hearing constituted a waiver of the
privilege:
THE COURT: Are you saying that anything that you
learned through her statements in her plea hearing,
you should be allowed to cross-examine her on?
[WHITE’S COUNSEL]: Yes, sir, I do.
THE COURT: All right. But you’re not saying that she
waives the privilege and, therefore, you get access to
14
the records because of what she said in the plea
hearing?
[WHITE’S COUNSEL]: No. What I’m saying is that’s
what I understand this hearing to be about, that
whether or not this defendant, in connection with his
right of confrontation, is allowed to review those
notes made as they pertain to a diagnosis and
treatment.
THE COURT: Well, I don’t think you answered my
question there and I want to be very clear on this.
[WHITE’S COUNSEL]: Okay.
THE COURT: . . . [T]he purpose of this hearing is much
broader than that. I want to have a full discussion
of this whole issue, but . . . my specific question
there was, are you arguing that because she disclosed
a small amount of information at the plea hearing . .
. that she has, therefore, waived the privilege with
regard to all these records?
[WHITE’S COUNSEL]: No, I’m not. I don’t say that.
J.A. 49 (emphasis added). Hence, the district court
specifically noted in its order that whether Kinder waived her
privilege was a non-issue, as “both parties to this case agree
that Kinder has not waived her privilege by responding to the
Court’s questions at the plea hearing.” J.A. 109.
Absent unusual circumstances, this court does not address
arguments on appeal that were not raised in the district court.
See Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th
Cir. 1999); see also Crawford Prof’l Drugs, Inc. v. CVS Caremark
Corp., 748 F.3d 249, 267 (5th Cir. 2014) (“The general rule of
this court is that arguments not raised before the district
court are waived and will not be considered on appeal.”
15
(internal quotation marks omitted)). And here we are presented
with an even more compelling basis not to address the issue of
waiver than White’s failure to argue it below—White’s contrary
assertion to the district court disavowing any reliance on a
waiver theory.
On top of that, White has not even argued on appeal that
this court should affirm on the basis of waiver. White does not
mention waiver in his brief, except to muse in passing that the
district court “could have properly found” that Kinder waived
the privilege, Brief of Appellee at 11 (emphasis added), even
though White took the opposite position below. This fleeting
mention of waiver in a single sentence couched in conditional
terms is not an argument—it’s an observation. It is not the
practice of this court to consider an argument that has not been
developed in the body of a party’s brief or identified in the
headings. See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653
n.7 (4th Cir. 2006) (single “conclusory remark” in brief
“insufficient” to constitute an argument); see also Reynolds v.
Wagner, 128 F.3d 166, 178 (3d Cir. 1997) (“[A]n argument
consisting of no more than a conclusory assertion . . . will be
deemed waived.”). “[A] party’s failure to raise or discuss an
issue in his brief is to be deemed an abandonment of that
issue.” Hatley v. Lockhart, 990 F.2d 1070, 1073 (8th Cir. 1993)
(internal quotation marks omitted)).
16
We recognize that, in limited circumstances, this court may
affirm a district court’s ruling on “any theory, argument, or
contention which is supported by the record.” Blackwelder v.
Millman, 522 F.2d 766, 771 (4th Cir. 1975) (internal quotation
marks omitted). The court does not follow this practice,
however, when doing so “unfairly prejudice[s] the appellant in
[the] presentation of his case.” United States v. Gould, 741
F.2d 45, 50 n.5 (4th Cir. 1984). Even if White were actually
urging us to consider a waiver theory—which he is not—affirming
on the basis of waiver in this case would be highly prejudicial
to Kinder. In light of White’s representation to the district
court that “Kinder has not waived her privilege by responding to
the Court’s questions at the plea hearing” and his subsequent
choice not to brief the issue of waiver on appeal, Kinder had
absolutely no reason to develop an argument on appeal that her
answers to the court’s questions during her plea colloquy
constituted a waiver of the privilege with respect to her
records.
In sum, it would be most unusual for this court to address
sua sponte a non-jurisdictional issue rejected by both parties
below and not argued or briefed on appeal. But, even if we were
to reach the merits, we would have serious doubts that answers
17
given by a defendant to a judge’s questions during a Rule 11
colloquy would amount to a voluntary waiver.
REVERSED
18
WYNN, Circuit Judge, dissenting:
Kim Kinder and Michael White conspired to commit arson.
Kinder cooperated with the government, and the government, in
turn, charged Kinder with only one arson-related offense, to
which she pled guilty. The government then agreed to argue for
a reduced sentence for Kinder.
At her plea hearing, Kinder testified at length and in
detail about her mental health diagnoses, hospitalizations, and
treatments. Kinder’s testimony went well above and beyond what
the district court asked. And not once during her testimony did
Kinder, or her counsel on her behalf, raise the issue of
privilege.
Ultimately, Kinder served as the star witness in the
government’s case against White, who was charged with several
arson-related offenses. As part of his defense, White sought
Kinder’s mental health records from hospitalizations he learned
about at Kinder’s plea hearing in open court. Yet, unlike in
her own proceeding, in White’s criminal proceeding, Kinder
asserted the psychotherapist-patient privilege in an attempt to
block White’s counsel from gaining access to records related
directly to her plea hearing testimony.
By liberally discussing her mental health issues in her
extensive open-court testimony in her own proceeding, Kinder
waived her psychotherapist-patient privilege as to the limited
19
and directly-related records that the district court released in
White’s case. Accordingly, because I agree with the district
court’s grant of White’s motion for early production of records,
I respectfully dissent.
I.
White, a West Virginia businessman, owned a two-unit duplex
near Van, West Virginia. In 2009, White experienced financial
difficulties. Among them, White was no longer receiving income
from his duplex: His tenants no longer paid their rent.
White “express[ed] this frustration to Kim Kinder, an
across-the-street neighbor with whom White was carrying on an
affair.” United States v. White, 771 F.3d 225, 228 (4th Cir.
2014). “White purchased a fire-insurance policy” that “provided
$80,000 coverage for the duplex and $20,000 for its contents.”
Id. He then asked Kinder and her husband “to burn it down as
soon as possible.” Id. White gave the Kinders some money and
told them that he had evicted the tenants. On October 16, 2009,
after a couple of trips to the duplex, the Kinders set it on
fire.
White recovered the full proceeds on the insurance policy
he had taken on the duplex, plus an additional amount for major
appliances. And he ultimately paid about $2000 to the Kinders.
20
In June 2010, West Virginia police contacted Kinder. After
initially denying involvement in the arson, Kinder confessed and
agreed to cooperate with the authorities. Kinder made “a
recorded telephone call to White in which they discussed the
fire and White’s payment of money to the Kinders. During the
call, Kinder made statements suggesting White’s involvement in
the arson which White did not deny.” Id.
Kinder ultimately pled guilty to one count of conspiracy to
commit arson in violation of 18 U.S.C. § 844(i). The
government, in turn, “agree[d] to file a motion in Ms. Kinder’s
case requesting the Court reduce her sentence based on the
substantial assistance she has already provided in the criminal
investigation and prosecution of another.” Plea Agreement at 4,
United States v. Kinder, No. 2:12-cr-00114 (S.D. W. Va. Mar. 5,
2012).
During her initial plea hearing, Kinder told the district
court that she took numerous medications, including anti-
depressants, anti-anxiety drugs, and muscle relaxers. Kinder
also revealed that she had been diagnosed with bipolar disorder
and schizophrenia. She did not know, however, which drugs
treated which conditions because her treatment providers “never
told [her] that this is what I am prescribing you for
schizophrenia.” Tr. of Plea Hr’g at 12, United States v.
Kinder, No. 2:12-cr-00114 (S.D. W. Va. June 19, 2012).
21
Kinder detailed her extensive psychiatric issues and
treatments well beyond what would have been necessary simply to
answer the district court’s questions. She explained, for
example, that “it was just – just pretty much the way my life
has went for the past 26 years, is in and out of hospitals and
emergency rooms and what – because I didn’t know, they couldn’t
tell me what was wrong with me. I was having panic attacks and
they were telling me I just had a little anxiety and send me
home . . . .” Id. at 11. Kinder also reported that she had
repeatedly attempted suicide.
Kinder detailed her voluntary and involuntary admissions to
the “psych wards” of four different hospitals, the most recent
admission occurring only about a year before the plea hearing.
Id. at 7. She identified those hospitals as Logan Regional
Hospital, St. Mary’s Hospital, Thomas Memorial Hospital, and
Highland Hospital. And she identified at least one of her
treating physicians by name—Dr. Fink at St. Mary’s. Kinder also
shared, for example, that she felt her doctors did not “really
care[] enough to sit down and find out what was going on and
most . . . would just, you know, write me more drugs and send me
home.” Id. at 13.
22
Not once during any of this did Kinder express privilege
concerns. 1 At no point during her extensive testimony did either
Kinder or her counsel, for example, seek a side bar or otherwise
raise the specter of the psychotherapist-patient privilege. And
“counsel for [White] was present in the public gallery during
the proceeding to hear this entire discussion.” J.A. 97-98.
Based on the information revealed by Kinder during her plea
hearing, White filed a motion for early production of records in
his own criminal proceeding. He sought Kinder’s treatment
records from each of the four hospitals Kinder identified at her
plea hearing.
The government opposed White’s motion, arguing that
Kinder’s records were protected from disclosure by the
psychotherapist-patient privilege recognized in Jaffee v.
Redmond, 518 U.S. 1 (1996). Kinder then intervened and also
objected to the motion.
Initially, the district court found “that the requested
documents [were] sufficiently relevant . . . to warrant in
camera review.” J.A. 91. The district court therefore entered
1
On the contrary, Kinder suggested that she had repeatedly
shared the information with others before, lamenting that she
“should probably write these [details about her mental health
diagnoses and treatments] down because people ask me a lot.”
Tr. of Plea Hr’g at 12, United States v. Kinder, No. 2:12-cr-
00114 (S.D. W. Va. June 19, 2012).
23
a preliminary order directing each of the four hospitals to
produce Kinder’s records solely to the court.
After conducting its review, the district court determined
that to the extent the hospital records revealed communications
from Kinder to, or diagnoses from, her psychiatrists, they fell
within the scope of the psychotherapist-patient privilege.
Nevertheless, observing that the psychotherapist-patient
privilege recognized in Jaffee is not absolute, the district
court concluded that the privilege “contemplates an exception
where necessary to vindicate a criminal defendant’s
constitutional rights.” J.A. 119.
The district court found such an exception warranted in
this case, concluding that White should obtain Kinder’s records
under the Due Process Clause. The district court saw the matter
as the “perfect storm of facts” justifying an exception—
including Kinder’s role as a co-conspirator, Kinder’s self-
interest in assisting the government (in the hope of reducing
her own sentence), the importance of Kinder’s testimony and
credibility to the government’s case against White, and Kinder’s
admission to various mental health diagnoses “that potentially
implicate her ability to accurately perceive, process, and
relate information.” J.A. 123. Accordingly, the district court
granted White’s motion for early production of records and
ordered limited disclosure.
24
At his trial, 2 White used the disclosed records to cross-
examine Kinder. But the district court ruled that the records
could not be introduced into evidence. Ultimately, the jury
convicted White on several arson-related counts, and the
district court sentenced him to concurrent 78–month terms of
imprisonment on each count. White, 771 F.3d at 228-29. White
appealed, and his case has been resolved. Id. Only Kinder’s
appeal of the district court’s records-related ruling is before
us now.
II.
Kinder argues that in deciding whether her mental health
records were protected from disclosure by the psychotherapist-
patient privilege, the district court engaged in the type of
balancing analysis the Supreme Court expressly rejected in
Jaffee. White counters that the district court properly applied
the distinguishable Jaffee, that the district court could have
deemed the privilege waived by Kinder’s discussing her mental
health treatment in open court, and that the district court also
2
The government dismissed its first indictment against
White and brought a second one because Kinder “contradicted the
facts she had provided earlier” as the government’s star witness
in its case against White. J.A. 98. The trial was based on the
second indictment.
25
could have found that the records it released fell outside of
any privilege.
On appeal, “[w]e review factual findings underlying an
attorney-client privilege ruling for clear error, and we review
the application of legal principles de novo.” In re Grand Jury
Subpoena, 341 F.3d 331, 334 (4th Cir. 2003). Upon careful
consideration, I must agree with White: Kinder waived her
privilege in the subject matter of the released records.
A.
As an initial matter, I do not believe that waiver
precludes us from reaching the privilege-waiver issue. I
“certainly agree” that White “did not ‘pellucidly articulate
this theory’ below.” Quicken Loans Inc. v. Alig, 737 F.3d 960,
964-65 (4th Cir. 2013) (quoting Harris Trust & Sav. Bank v.
Salomon Smith Barney, Inc., 530 U.S. 238, 245 n. 2 (2000)).
Nevertheless, while White did not call his argument below
waiver, it had the stuff of waiver—so much so that opposing
counsel recognized it as such and railed against it. J.A. 65
(stating that White’s counsel argued “that in as much as Ms.
Kinder has spoken about some of her history in court. . . there
may be some – a waiver or some way to think that there is no –
there in no expectation of privacy here” and arguing against the
same). Further, on appeal, White contends that “the District
Court could have properly found that Ms. Kinder had waived any
26
privilege she might have had in these records by talking about
her hospitalizations . . . in open court, thus she had no
reasonable expectation of privacy after that point.” Appellee’s
Br. at 11.
Moreover, “‘we review judgments, not opinions’ and,
consequently, we are ‘entitled to affirm the district court on
any ground that would support the judgment in favor of the party
prevailing below.’” Everett v. Pitt Cnty. Bd. of Educ., 678
F.3d 281, 291 (4th Cir. 2012) (quoting Crosby v. City of
Gastonia, 635 F.3d 634, 643 n. 10 (4th Cir. 2011)). Here, the
district court’s judgment granted White’s motion for early
production of records. Though I would grant the motion on a
different basis than that of the district court, the judgment—
granting White’s motion—would remain the same, and I therefore
would affirm.
Accordingly, “under the facts and circumstances of this
case [I would] reach the [privilege-waiver] argument.” Quicken
Loans, 737 F.3d at 965.
B.
In 1996, with Jaffee, the Supreme Court resolved a circuit
split by “recogniz[ing] a psychotherapist privilege.” 518 U.S.
at 7. The Court concluded that a social worker’s notes from her
counseling sessions with a police officer who had been sued for
use of excessive force were protected from disclosure by the
27
psychotherapist-patient privilege. The Supreme Court reasoned
that “[e]ffective psychotherapy . . . depends upon an atmosphere
of confidence and trust” and that “the mere possibility of
disclosure” of “confidential communications made during
counseling sessions” could hinder productive therapy. Id. at
10.
The Supreme Court found that, like other testimonial
privileges, the psychotherapist privilege serves the greater
public interest by facilitating effective mental health care—“a
public good of transcendent importance.” Id. The Court
concluded that a “privilege protecting confidential
communications between a psychotherapist and her patient
‘promotes sufficiently important interests to outweigh the need
for probative evidence.’” Id. at 9–10 (quoting Trammel v.
United States, 445 U.S. 40, 51 (1980)).
Nevertheless, because such privileges “‘impede[] the full
and free discovery of the truth,’” they must be “narrowly
construed.’” In re Grand Jury Subpoena, 341 F.3d at 335
(quoting Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).
They are thus “‘recognized only to the very limited extent that
excluding relevant evidence has a public good transcending the
normally predominant principle of utilizing all rational means
for ascertaining truth.’” Id.
28
Accordingly, like other privileges, the psychotherapist-
patient privilege is not absolute. The Supreme Court noted that
“[a]lthough it would be premature to speculate about most future
developments in the federal psychotherapist privilege, we do not
doubt that there are situations in which the privilege must give
way.” Jaffee, 518 U.S. at 18 n.19. The Supreme Court
identified one such potential exception—where “a serious threat
of harm to the patient or to others can be averted only by means
of a disclosure by the therapist.” Id.
Finally, the Supreme Court recognized that a patient may
waive the psychotherapist-patient privilege. Id. at 15 n.14
(“Like other testimonial privileges, the patient may of course
waive the protection.”). Thus, this Court later held that “[a]
patient may waive the psychotherapist-patient privilege by
knowingly and voluntarily relinquishing it. A waiver may occur
when the substance of therapy sessions is disclosed to unrelated
third parties, or when the privilege is not properly asserted
during testimony.” United States v. Bolander, 722 F.3d 199, 223
(4th Cir.), cert. denied, 134 S. Ct. 549 (2013) (citations and
parentheticals omitted).
In Bolander, the patient “failed to assert the
psychotherapist patient privilege during his . . . deposition.
During that deposition, [he] was asked questions about his
participation in [a sex offender treatment program]. He did not
29
assert any privilege with respect to the information he provided
in the [program], including the documents generated by the
program. Instead, [he] openly discussed his participation . . .
.” 722 F.3d at 223. We held that “[b]y answering questions
without asserting the psychotherapist patient privilege, [the
patient] waived any privilege he may have enjoyed.” Id.
Our analysis in Bolander relied on Hawkins, 148 F.3d 379, a
case involving the longstanding attorney-client privilege, to
which the Supreme Court, too, analogized the psychotherapist-
patient privilege. See Jaffee, 518 U.S. at 11. In Hawkins, we
noted that the “client is the holder” of the privilege, as is
the patient in the psychotherapy context, “and can waive it
either expressly, or through conduct.” 148 F.3d at 384 n.4
(citations and parentheticals omitted); see also Koch v. Cox,
489 F.3d 384, 391 (D.C. Cir. 2007) (noting that a plaintiff
“waives the psycho-therapist-patient privilege when . . . he
does the sort of thing that would waive the attorney-client
privilege”).
In Hawkins, a former husband alleged that his former wife
illegally recorded telephone conversations between him and his
girlfriend. In her deposition, the former wife answered
questions about whether her lawyer had advised her regarding the
wiretap:
30
Q: Is it true or not that Larry Diehl, in his
capacity as your [divorce] attorney, told you to take
a wiretap off the phone at the marital residence?
A: No, sir. Because I wouldn’t have discussed
that with him, since it didn’t happen. So, therefore,
he would have no need to make mention of that to me.
Hawkins, 148 F.3d at 381. We observed that “[a]lthough the
question asked during the deposition clearly elicited
information regarding confidential communications [the former
wife] may have had with [her lawyer], and was objectionable on
its face on the ground of attorney-client privilege, neither
[the former wife] nor her attorney asserted an objection.” Id.
In answering the question without raising a privilege
objection, the former wife “waived the privilege as to the
subject matter of the phone tap.” Id. at 384. And “[b]ecause
the privilege had been impliedly waived by [the former wife],
[the former husband] was entitled to question [the former wife’s
lawyer] regarding the alleged wiretap.” Id.
As Hawkins illustrates, waiver through conduct, or “implied
waiver,” “occurs when the party claiming the privilege has made
any disclosure of a confidential communication to any individual
who is not embraced by the privilege.” Id. at 384 n.4; see
also, e.g., Hanson v. United States Agency for Int’l Dev., 372
F.3d 286, 294 (4th Cir. 2004) (“Implied waiver occurs when a
party claiming the privilege has voluntarily disclosed
confidential information on a given subject matter to a party
31
not covered by the privilege.”). This is because such a
disclosure “vitiates the confidentiality that constitutes the
essence of the . . . privilege.” Hawkins, 148 F.3d at 384 n.4.
And disclosure “not only waives the privilege as to the specific
information revealed, but also waives the privilege as to the
subject matter of the disclosure.” Id.
The reasoning behind waiver in such circumstances is
intuitive: “[A] judicial system that ignores publicly known
information or information known to an adversary risks losing
its legitimacy as a truth-seeking process.” Privileged
Communications, 98 Harv. L. Rev. 1450, 1646 (May 1985). Indeed,
“[o]ver time, public confidence in our legal system might be
eroded . . . by a general perception that the courts
systematically exclude probative evidence” or the potential for
“public disagreement with the factfinder’s decision.” Id. at
1646-47. It has, therefore, been suggested that “all
disclosures that are likely to lead to privileged material
becoming either public or accessible to the privilege-holder’s
legal adversary should be treated as waiving the privilege with
respect to the matter disclosed.” Id. at 1647.
In deeming communications impliedly waived, this Circuit
has found waiver even in closed proceedings and pursuant to a
subpoena. For example, in United States v. Bollin, we held that
the defendant waived the attorney-client privilege as to certain
32
transactions and communications with his attorney where he
testified “before the grand jury pursuant to a subpoena” about
those transactions and communications. 264 F.3d 391, 412 (4th
Cir. 2001).
We have also recognized implied waiver in the context of
communications that predated the commencement of the litigation
where the waiver issue had been raised. For example, in In re
Grand Jury Subpoena, we held that the defendant waived the
attorney-client privilege regarding whether a lawyer had aided
him in answering a question on an immigration form when, in an
earlier conversation with Federal Bureau of Investigation
agents, the defendant had reported that he had answered the form
question as he did on the advice of an attorney. 341 F.3d 331.
And in In re Grand Jury Subpoena, we indicated that while no
“broad-based” waiver occurred, a client’s identity and certain
documents identified in a subpoena were no longer confidential,
and any privilege associated with them was waived, when the
client authorized his attorney to convey to the lawyer
representing parties threatening suit his motives for seeking
legal advice. 204 F.3d 516, 522 (4th Cir. 2000).
Viewing these cases holistically, they indicate that in
this Circuit, privileges such as the psychotherapist-patient
privilege must be construed narrowly and may be waived,
including impliedly. And implied waiver may be effectuated by
33
disclosure to third-parties before the litigation at hand
commences and by providing information in response to a court
command such as a subpoena.
C.
Turning now to the case at hand, during her plea hearing in
open court, Kinder told the district court that she took
numerous medications, including anti-depressants, anti-anxiety
drugs, and muscle relaxers. Kinder revealed that she had been
diagnosed with bipolar disorder and schizophrenia but that she
did not know which drugs treated which conditions because her
treatment providers “never told [her] that this is what I am
prescribing you for schizophrenia.” Tr. of Plea Hr’g at 12,
United States v. Kinder, No. 2:12-cr-00114 (S.D. W. Va. June 19,
2012).
Kinder detailed—well beyond what the district court asked—
her extensive psychiatric issues and treatments. She explained
that her metal health deteriorated after the birth of her son
and that “it was just – just pretty much the way my life has
went for the past 26 years, is in and out of hospitals and
emergency rooms and what – because I didn’t know, they couldn’t
tell me what was wrong with me. I was having panic attacks and
they were telling me I just had a little anxiety and send me
home . . . .” Id. at 11. Kinder also reported multiple suicide
attempts.
34
Kinder detailed her admissions to four hospital “psych
wards”: Logan Regional Hospital, St. Mary’s Hospital, Thomas
Memorial Hospital, and Highland Hospital. Id. at 7. She
identified at least one of her treating physicians by name.
Kinder also shared, for example, that she felt her doctors did
not “really care[] enough to sit down and find out what was
going on and most . . . would just, you know, write me more
drugs and send me home.” Id. at 13.
At no point during her extensive testimony did Kinder or
her counsel express privilege concerns. Not once did either,
for example, seek a side bar. Meanwhile, “counsel for [White]”—
and who knows who else—“was present in the public gallery during
the proceeding to hear this entire discussion.” J.A. 97-98.
Further, the transcript of “this entire discussion” is a filed
document not under seal and thus publicly available for all to
see.
White’s motion for early production of records was based on
the information Kinder revealed during her plea hearing. He
sought only limited treatment records, only from each of the
four hospitals Kinder identified at her plea hearing, and only
for use in his related criminal proceeding.
With her extensive testimony in open court, Kinder
“vitiate[d] the confidentiality that constitutes the essence” of
the psychotherapist-patient privilege as to the limited records
35
White sought. Hawkins, 148 F.3d at 384 n.4. She “voluntarily
disclosed confidential information on [the pertinent] subject
matter to a party not covered by the privilege” and thereby
impliedly waived it. Hanson, 372 F.3d at 294. 3
In my view, the fact that the testimony that constituted
implied waiver here was prompted by the district court’s
(limited) questioning is not dispositive. Cf. Bollin, 264 F.3d
at 412 (holding that the defendant waived the attorney-client
privilege as to certain transactions and communications with his
attorney where he testified “before the grand jury pursuant to a
subpoena” about the same). Nor is it dispositive that the
testimony resulting in waiver predated the commencement of
White’s criminal proceeding. See In re Grand Jury Subpoena, 341
F.3d 331 (holding that defendant waived the attorney-client
privilege through an earlier conversation with federal agents);
In re Grand Jury Subpoena, 204 F.3d at 522 (indicating that
attorney-client privilege was waived by an earlier letter sent
at client’s request upon threat of a civil suit).
3
Kinder also permitted the disclosure of her mental health
records for purposes of her presentence report. But the
confidentiality of presentence reports—which routinely address
“intensely personal matters” such as family history, mental
health, and financial condition—“has always been jealously
guarded.” United States v. Trevino, 89 F.3d 187, 192 (4th Cir.
1996). I would thus decline any invitation to downgrade the
presentence report’s confidentiality here.
36
In sum, I conclude that by discussing at length, in detail,
and without any hint of privilege concerns, her mental health
problems and treatments in open court, Kinder extinguished the
confidentiality of those subjects and thereby waived her ability
to block White’s access to directly-related records by claiming
privilege. The district court therefore did not err in
authorizing a limited release of certain of Kinder’s records to
White for use in his related criminal proceeding.
III.
For the reasons above, I would affirm the district court’s
grant of White’s motion for early production of records.
Accordingly, I respectfully dissent.
37