1

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ESTATE OF LYVITA GOMES, )

Deceased, by Alfredo Miranda, )

Administrator, ) No. 12 CV 4439

)

Plaintiff, ) Judge Johnson Coleman

)

vs. ) Magistrate Judge Gilbert

)

COUNTY OF LAKE, et al., )

)

Defendants. )

PLAINTIFF’S SUPPLEMENT IN RESPONSE TO CCS DEFENDANTS’ 

MOTION FOR PROTECTIVE ORDER 

FOR NON-PARTY MEDICAL AND MENTAL HEALTH CARE 

INFORMATION AND RECORDS

In response to this Court’s order of May 15, 2013 [Dkt #60], and in further response to 

CCS Defendant’s motion for protective order, Plaintiff provides the bases for the Court to order

the CCS Defendants to produce, in connection with Plaintiff’s Monell policy claims, all

requested documents containing or revealing communications between non-party Lake County

Jail inmates and their therapist providers, with redaction of identifying information.

Communications Between Inmates and Therapists is Necessary Monell Evidence

Given the circumstances under which Ms. Gomes died as a result of a mere two weeks in

Defendants’ custody, Plaintiff alleged that Defendants’ policies were a moving force in her death.

The Monell claims against both the CCS Defendants (County VII) and the Lake County

Defendants (Count VI) may be proved by evidence that Ms. Gomes’ treatment was not an

isolated incident, and that the Defendants maintained unconstitutional policies, customs and

Case: 1:12-cv-04439 Document #: 62 Filed: 05/28/13 Page 1 of 8 PageID #:707
2

practices. Cosby v. Ward, 834 F.2d 967, 983 (7 Cir. 1988); Thomas v. Cook County Sheriff’s th

Department, 604 F.3d 293, 303 (7 Cir. 2010). th

In Perez v. City of Chicago, 2004 U.S. Dist. LEXIS 7415 (N.D. Ill. 2004), where the

defendants were denied access to records revealing the plaintiff’s family members’

communications in group therapy sessions, the defense was not hampered in defending against

plaintiff’s claims. Here, however, Plaintiff’s ability to meet its burden of proof on the Monell

claims will be seriously impaired, if not defeated, by lack of access to records documenting

treatment of other similarly situated inmates. See, Seventh Circuit Court of Appeal Pattern Jury

Instructions in Civil Cases, 7.20 Liability of Municipality: Definition of “Official Policy.” 

Lake County counsel has verbally indicated that within two years of Ms. Gomes’ death,

inmates were forcibly medicated on approximately twenty (20) occasions. The records of those

inmates, including therapist-patient communications, could reveal a wealth of evidence as to

Defendants’ custom, policy and practice of treating inmates in situations similar to that of Ms.

Gomes. 

The other issue here is that Defendants have sole access to the requested records, which

makes for a very uneven playing field. See, Mauricio v. Duckworth, 840 F.2d 454, 458 n. 4 (7

th

Cir. 1988) (describing the discovery process as creating “a level playing field where rules are in

place to ensure equal access to material information”). Further, 

The purpose of discovery is to provide a mechanism for making relevant

information available to the litigants. “Mutual knowledge of all the relevant facts

gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329

U.S. 495, 507 (1947).

Notes of Advisory Committee on Rules, 1983 Amendment (emphasis added).

Case: 1:12-cv-04439 Document #: 62 Filed: 05/28/13 Page 2 of 8 PageID #:708
3

Jaffee Privilege is Not Inelastic or Absolute

As this Court recognized in its order of May 15, the Jaffee court did not define the scope

of the privilege. However, Jaffee itself provides that the privilege is not inelastic or absolute,

stating the Supreme Court was not “delineat[ing] its full contours in a way that would ‘govern all

conceivable future questions in this area.’ [cite omitted],” and indicating “we do not doubt that

there are situations in which the privilege must give way,” providing an example of where “a

serious threat of harm to the patient or to others can be averted only by means of a disclosure by

the therapist.” 518 U.S. 1 at 18 n. 9.

The “Jaffee” privilege exists only if there is a legitimate expectation of confidentiality; if

no such legitimate expectation of confidentiality exists, there is no privilege. In Scott v.

Edinburgh, 101 F.Supp.2d 1017, 1020 (N.D. Ill. 2000), where, similar to Jaffee, the plaintiff

sought therapy records for the shooting police defendant, unlike Jaffee, the court ordered

production of the therapy records, finding no expectation of confidentiality existed, for the

therapist had admonished the defendant that the records would be reviewed by the police chief. 

The privilege can be waived if the psychotherapist-patient communication is shared with

people beyond the therapist and her employer. See, e.g., Granger v. McBride, 2006 U.S. Dist.

LEXIS 34689 (N.D. Ind.) (after a patient reported therapist sexual abuse, community mental

health center waived privilege when it sent therapist’s non-parties’ therapy records to counsel

and insurer).

As this Court recognized, the privilege does not cover every communication between

psychotherapist and patient; only those involving diagnosis, treatment or counseling. United

States v. Schwensow, 151 F.3d 650, 657 (7 Cir. 1998) (providing address of detox center does

th

Case: 1:12-cv-04439 Document #: 62 Filed: 05/28/13 Page 3 of 8 PageID #:709
Parsing through the records to determine what is in fact a Jaffee-protected 1

communication and what is not a Jaffee-protected communication will undoubtedly be far more

burdensome than producing the records in redacted fashion under a protective order. 

4

not constitute diagnosis, treatment or counseling). And if there is no indication in the record that

the communication was in fact made in the course of psychotherapy, then that communication

should not enjoy the Jaffee privilege. Boudreau v. Ryan, 2001 U.S. Dist. LEXIS 12996 (N.D.

Ill).1

A Jaffee Privilege Does Not Exist in the Context of the Lake County Jail, 

Or in the Alternative, it Has Been Waived

This background provides this Court a basis to reconsider that part of its May 15 order

where it concluded that communications by non-party inmates to therapists are not subject to

disclosure. In the specific context of the Lake County Jail, there is no expectation of

confidentiality — a corrections officer is always present when CCS providers see inmates. In

other words, every time a therapist and an inmate engage in communication, that communication

is made in the presence of someone who is not a therapist. There is thus no privilege; or the

privilege may be considered waived by having been made in the presence of someone other than

the therapist or her employer.

The psychotherapist-patient privilege is supposed to protect the "atmosphere of

confidence and trust in which the patient is willing to make a frank and complete disclosure of

facts, emotions, memories, and fears." Jaffee, 518 U.S. at 10. There is no such atmosphere of

confidence and trust in the Lake County Jail, where communications are made in the presence of

a uniformed corrections officer whose purpose is to protect the therapist from the patient. In Ms.

Gomes’ case, when the provider determined that she “refused treatment,” both the provider and a

Case: 1:12-cv-04439 Document #: 62 Filed: 05/28/13 Page 4 of 8 PageID #:710
5

corrections officer signed the form. See, e.g., JS 594. That is not the type of communication

Jaffee hoped to protect. 

Those incarcerated at the Lake County Jail likely have not even elected to undergo

psychotherapy treatment. Defendants identified individuals to be seen by mental health

professionals for the security and safety of the jail. Ms. Gomes, for example, did not seek out

psychotherapy treatment. The mental health professionals came to see her because of her

behavior and conduct. Incarcerated individuals do not voluntarily seek diagnosis and treatment

by mental health professionals at the Lake County Jail.

It is important to further examine what “psychotherapist-patient communication” means

in the context of inmates held at Lake County Jail. Documents produced by the Lake County

Defendants indicate that while in the medical pod, Ms. Gomes was placed on a disciplinary

status, administrative lockdown, for “refusing to complete intake.” [JS 688]. Thus, for “refusing”

to engage in a process which included divulging her mental health history and whether she was

currently at risk for suicide, she lost what minimal privileges she had while in custody. Such

records, obtained under threat of punishment, could hardly be the sort of communication to

which the Supreme Court extended protection in Jaffee.

Additionally, there are issues concerning Ms. Gomes’ ability and/or willingness to

communicate, and Plaintiff has alleged a policy concerning communication. For non-party

inmates who similarly could not or would not communicate with therapists, Jaffee should not

apply. Ligas v. Maram, 2007 U.S. Dist. LEXIS 87853 at *21-23 (N.D. Ill.).

Redaction of Identifying Information Accommodates any Concern About Confidentiality

During the May 15 argument, this Court correctly perceived the inapplicability of 

Case: 1:12-cv-04439 Document #: 62 Filed: 05/28/13 Page 5 of 8 PageID #:711
6

Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 293 (7 Cir. 2004), given the special th

nature of that case involving a subpoena for late-term abortion records, within the context of the

hostility and violence of the anti-abortion movement. Defendants provided no other authority for

their contention that redaction will not accommodate concerns about confidentiality.

Redaction is widely used and approved as a means of protecting the confidentiality of

health and other sensitive information of parties, non-parties, and government agencies. See, e.g.,

Sosnowski v. Wright Medical Technology, Inc., 2011 U.S. Dist. LEXIS 88225 (N.D. Ill.)

(granting motion to compel, ordering redaction of confidential patient information); In re Yasmin

& Yaz (Drospirenone) Mktg., Sales Practices and Products Liability Litigation, 2010 U.S. Dist.

LEXIS 14093(N.D. Ill.) (ordering redaction of trade secrets, privileged, and otherwise

confidential information); Goldstein v. Colborne Acquisition Co., LLC, 873 F. Supp. 2d 932, 938

(N.D. Ill.); United States v. Marzook, 435 F. Supp. 2d 708 (N.D. Ill. 2006) (classified national

security information); Kampinen v. Individuals of Chi. Police Dep't, 2002 U.S. Dist. LEXIS 2561

(N.D. Ill.) (police confidential informant information). See also, Guthrey v. Cal. Dep't of Corr. &

Rehab, 2012 U.S. Dist. LEXIS 89174 at *43-44 n. 6, (ordering production of documents of other

religious discrimination complaints, citing cases authorizing redaction of non-party identities).

Defendants may easily redact identifying information of individuals within the requested

documents. Once an inmate’s name and number is removed from a document, the individual

would not be identified and any communications would not be of an extremely private nature.

The documents sought involve discovery of what actions Defendants took in response to

behavior and conduct of individuals incarcerated at the jail. In other words, Plaintiff seeks

information, for example, concerning when Defendants sent other individuals out for medical

Case: 1:12-cv-04439 Document #: 62 Filed: 05/28/13 Page 6 of 8 PageID #:712
7

treatment outside the jail because by the time Ms. Gomes was transferred to an outside hospital it

was too late to save her life. Similarly, Ms. Gomes’ behavior and conduct interfered with her

ability to make decisions about her health and Plaintiff seeks comparable information as to what

behavior and conduct on the part of other individuals prompted Defendants to make any different

medication decisions for those individuals.

Defendants seek to conceal their practices from exposure in this litigation by hiding

behind an alleged confidentiality privilege of incarcerated individuals who have not voluntarily

sought diagnosis or treatment at the Lake County Jail. The analogy in Northwestern Mem'l Hosp.

v. Ashcroft, 362 F.3d 923, 929 (7th Cir. Ill. 2004) of an unidentified nude picture of a woman

uploaded to the Internet invading that woman’s privacy simply does not apply here. Plaintiff

seeks evidence of Defendants’ patterns and practices not individual identifying or extremely

private information about other incarcerated individuals. 

Conclusion

The documents sought are relevant and probative to Plaintiff’s Monell claim, and seek

information not otherwise available to Plaintiff. Due to the circumstances of any therapist-patient

communications in the Lake County Jail, no Jaffee privilege exists, or if it ever did, it is waived

by the presence of a non-therapist. Furthermore, production pursuant to a protective order and

redaction of personal identifying information will adequately accommodate any concerns about

confidentiality. 

Dated: May 28, 2013 Respectfully submitted,

 /s/ Jan Susler 

Janine L. Hoft

Jan Susler

Case: 1:12-cv-04439 Document #: 62 Filed: 05/28/13 Page 7 of 8 PageID #:713
8

People’s Law Office

1180 N. Milwaukee Avenue

Chicago, Illinois 60642

773/235-0070

Attorneys for Plaintiff

Case: 1:12-cv-04439 Document #: 62 Filed: 05/28/13 Page 8 of 8 PageID #:714