United States v. Ray

585 F.Supp.3d 445

UNITED STATES of America,

v.Lawrence RAY, Defendant.

20-cr-110 (LJL)

United States District Court, S.D. New York.

Signed February 8, 2022

Danielle Renee Sassoon, Assistant US Attorney, Lindsey Keenan, Mary Elizabeth Bracewell, United States Attorney's Office, New York, NY, for United States of America.

Marne Lynn Lenox, Neil Peter Kelly, Peggy Cross-Goldenberg, Public Defenders, Federal Defenders of New York Inc., New York, NY, Allegra Glashausser, Public Defender, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

On motion of the defendant, the Court issued subpoenas, pursuant to Federal Rule of Criminal Procedure 17, directed to various healthcare providers, including mental-health providers, of the alleged victims in this case. See Dkt. Nos. 214, 237. The defense served the Rule 17 subpoenas on the healthcare providers. Pursuant to the procedures set by this Court, see, e.g. , Dkt. No. 214, the records were produced by the providers to the Court and to counsel for the alleged victims. Counsel for the alleged victims then produced redacted records to the defense, along with privilege and relevance logs setting forth the basis for the redactions. Counsel based many of the privilege redactions on the psychotherapist-patient privilege set forth in Jaffee v. Redmond , 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), and its progeny.

By letter dated January 10, 2022, defense counsel objected to the privilege and relevance assertions, and accompanying redactions, as overbroad and requested that the Court independently review the records and logs. Dkt. No. 284. Counsel for each of the alleged victims responded to the defense's letter explaining in further detail the bases and legal rationales for the redactions. See Dkt. Nos. 296, 299, 301, 302. The Government also filed a letter on the docket, writing that, "[h]aving not viewed any of the underlying records, the Government cannot speak to the basis for, or appropriateness of, the redactions" and "[a]ccordingly ... has no objection to the Court's conducting a review to determine the appropriateness of the proposed redactions." Dkt. No. 297.

The Court heard oral argument on the matter on January 24, 2022. See Dkt. No. 321. Defense counsel made generally applicable objections to the privilege and relevance redactions asserted by counsel for the alleged victims. As to the privilege redactions, defense counsel argued that they were overbroad in multiple respects. First, the defense objected to redactions of observations of the alleged victims—including as to their mood or affect—made by treating professionals as not "communications" covered by the psychotherapist-patient privilege. Id. at 10–13. It similarly objected to the withholding of records reflecting the prescriptions that were made to the alleged victims, asserting that these records do not reflect or reveal a communication. Id. at 15. Second, defense counsel argued that hospital intake information is "not necessarily covered by the privilege" and that the relevant questions are "whether ... statements were made in the course of diagnosis and treatment and were made specifically to a mental health provider." Id. at 16. In distinguishing what information would be covered by the privilege and what would not be, defense counsel appeared to agree that communications that occur at the intake at a psychiatric facility would be covered by the privilege, while maintaining that statements made to intake staff at a general hospital or emergency room would not be covered. Id. at 17–18.

The Court also inquired at argument whether defense counsel contended that the psychotherapist-patient privilege had been waived with respect to the healthcare records. Counsel made only one argument regarding waiver: that, with respect to Jane Doe 3, the privilege had been waived for certain records because Jane Doe 3 had sent an email to Ray with those records attached. Id. at 18–19. Counsel asserted that the privilege had been waived with respect to the information disclosed by Ray in those records, but not more broadly. Dkt. No. 321 at 19.

The defense then moved on to relevance objections. Defense counsel argued that the records that predate 2010 are relevant to the second superseding indictment's allegations "that one of the means and methods of the alleged enterprise is exploiting the victim's mental health vulnerabilities and self-doubts to the advantage of the enterprise." Id. at 20; see also Dkt. No. 292 ¶ 7(d) (listing as one of the "Means and Methods of the Enterprise" "[e]xploiting the Victims’ mental health vulnerabilities and self-doubts to the advantage of the Enterprise").

The Court reviewed the submissions in camera.

LEGAL STANDARD

In Jaffee v. Redmond , the Supreme Court recognized a "psychotherapist privilege" under Federal Rule of Evidence 501.¹ Under the privilege, "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure." Jaffee , 518 U.S. at 15, 116 S.Ct. 1923. The privilege applies to confidential communication made to licensed psychiatrists and licensed social workers, as well as to those "made to licensed social workers in the course of psychotherapy." Id.

In recognizing the existence of a psychotherapist-patient privilege, the Jaffee Court explained that "[l]ike the spousal and attorney-client privileges, the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and trust.’ " Jaffee , 518 U.S. at 10, 116 S.Ct. 1923 (quoting Trammel v. United States , 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980) ). It went on:

Effective psychotherapy ... depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.

Id. The Court explained that such guarantees of confidentiality "serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem," observing that "[t]he mental health of our citizenry ... is a public good of transcendent importance." Id. at 11, 116 S.Ct. 1923. The Court relied by analogy on the attorney-client privilege and the spousal privilege for the existence and the scope of the psychotherapist-patient privilege as well as on the practices on each of the fifty states and the District of Columbia. Id. at 12–13, 116 S.Ct. 1923 ; see also id. at 10, 15 n.14, 116 S.Ct. 1923 ; In re Sims , 534 F.3d at 133–34 (citing favorably Koch v. Cox , 489 F.3d 384, 391 (D.C. Cir. 2007), which analyzed the scope of waiver of the psychotherapist-patient privilege by looking to the scope of waiver of the attorney-client privilege); Rosner v. United States , 958 F.3d 163, 166 (2d Cir. 2020) (applying same rule relating to the collateral-order doctrine in the attorney-client privilege and psychotherapist-patient privilege contexts). Like the attorney-client privilege and the spousal privilege, the psychotherapist-patient relationship is absolute. When the privilege applies, it cannot be overcome by balancing "the relative importance of the patient's interest in privacy and the evidentiary need for disclosure." Id. at 17, 116 S.Ct. 1923. As with the attorney-client privilege, for the privilege to serve its purpose, "the participants in the confidential conversation ‘must be able to predict with some degree of certainty whether particular discussions will be protected [and] [a]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is letter better than no privilege at all.’ " Id. at 18, 116 S.Ct. 1923 (quoting Upjohn Co. v. United States , 449 U.S. 383, 393, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) ); see also Consolidated RNC Cases , 2009 WL 130178, at *5 (S.D.N.Y. Jan. 8, 2009) (Sullivan, J.) ("In Jaffee , the Supreme Court rejected the idea that the psychotherapist privilege should be subject to a balancing test—thereby implicitly recognizing it as an absolute rather than qualified privilege."); Kerman v. City of New York , 1997 WL 666261, at *2 (S.D.N.Y. Oct. 24, 1997).

Testimonial privileges are an exception to the "fundamental maxim that the public ... has a right to every man's evidence." Jaffee , 518 U.S. at 9, 116 S.Ct. 1923 (alteration in original) (quoting United States v. Bryan , 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884 (1950) ). "[P]rivileges generally are construed narrowly," In re Jakubaitis , 604 B.R. 562, 570 (9th Cir. BAP 2019), appeal filed (9th Cir.); see also United States v. Nixon , 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), and the psychotherapist-patient privilege, like other privileges, may be waived by the privilege holder, In re Sims , 534 F.3d 117, 121 (2d Cir. 2008).

"A party invoking the psychotherapist-patient privilege must establish that (1) confidential communications were made, (2) between a licensed psychotherapist and patient, and (3) in the course of diagnosis or treatment." Cuoco v. U.S. Bureau of Prisons , 2003 WL 1618530, at *2 (S.D.N.Y. Mar. 27, 2003). There are thus three relevant inquiries: (1) whether the redacted records represent confidential "communications"; (2) whether those communications were made between an alleged victim as patient and a mental-health professional that is covered by the privilege; and (3) whether those communications were made in the course of diagnosis or treatment, as opposed to for some other purpose or outside of the context...