Subsequent to the issuance of the subpoena to P-Corp but prior to this court's decision as to the enforceability of that subpoena, the grand jury issued an identical subpoena to the psychologist who is the sole shareholder of P-Corp. Like the first subpoena, the second demands the production of appointment books, billing records, and notes of treatment relating to a lawyer who was a patient of the psychologist. And like the first subpoena, the second subpoena has been objected to under Schofield and on the additional ground that it seeks information protected by privilege; in this case, both the psychotherapist -- patient privilege and the Fifth Amendment's privilege against self-incrimination. We deal here with the psychologist's motion to quash, based on these objections and the United States' counter-request for enforcement of the subpoena.
Before reaching the merits of this motion, it is perhaps useful to outline the procedural path which led us to our present location. As is apparent, the first action in this matter occurred when P-Corp's records were subpoenaed. Unfortunately, a contemporaneous subpoena was not issued to the psychologist.
P-Corp moved to quash the subpoena, arguing that the requested records were protected by the psychotherapist-patient privilege. This court, perhaps unwisely, accepted the existence of records containing confidential patient communications for purposes of that motion because: (1) both the lawyer and the psychologist were claiming the Fifth Amendment privilege with respect to oral testimony; (2) there was evidence of a psychotherapist-patient relationship; and (3) counsel for P-Corp (who is also counsel for the psychologist), acting as an officer of the court, argued vigorously that the psychotherapist-patient privilege applied to records covered by the subpoena.
Shortly before our hearing, counsel for P-Corp informed the court that P-Corp did not own or control the treatment records relating to the lawyer; rather, these records were the personal property of the psychologist. Having no factual basis upon which to agree or disagree with this assertion, the court proceeded to hear P-Corp's motion to quash, assuming, perhaps erroneously, that the psychotherapist-patient privilege argument would not be pressed if P-Corp possessed no records, rather than all or just some of such records, which counsel believed were shielded by the psychotherapist-patient privilege
Also the court remained keenly aware that the person who could clear the mystery up was a subject of a grand jury investigation who did not wish to reveal to the grand jury whether any of the subpoenaed documents in fact existed. Because we became increasingly uncertain that there was, at bottom, an adequate ground for asserting a psychotherapist-patient privilege with respect to the two subpoenas, this court acted to satisfy itself that it was not engaged in a merely academic exercise. After doing so, the court is now certain that an adequate basis for the assertion of the psychotherapist-patient privilege exists with respect to at the least the subpoena issued to the psychologist, if not the subpoena issued to P-Corp.
At our first hearing on this matter, counsel for P-Corp withdrew his objection to the subpoena's request for appointment books and billing records, since he conceded that to the extent a psychotherapist-patient privilege existed in federal law it only applied to confidential communications made by a patient during therapy. Despite this, after our order denying the motion to quash was entered no representative of P-Corp appeared before the grand jury, in compliance with the subpoena, to produce those records to which the privilege had been conceded not to apply, nor did a representative of P-Corp appear to testify that it did not own the notes of treatment sought. An order enforcing the subpoena was filed and P-Corp still did not comply, and thus this court issued an order of contempt against P-Corp, from which an appeal was taken.
After the P-Corp appeal was taken, the psychologist filed this motion to quash. The motion to quash is based on three grounds: (1) the inadequacy of the government's Schofield affidavit; (2) the psychotherapist-patient privilege; and (3) the Fifth Amendment's privilege against self-incrimination. We will deal with each of these contentions.
A. The Schofield Objection
The psychologist contends that the government's sworn submissions are inadequate and do not demonstrate the relevance of all the treatment and billing records to the grand jury's investigation. Moreover, the psychologist argues that the government has not pointed to any evidence which suggests that the relationship between the lawyer and the psychologist was anything other than a legitimate therapist-patient relationship.
In response to this renewed objection, the government filed an additional sworn submission with factual exhibits attached. This new submission indicates that the lawyer has been in not one, but two automobile accidents. The first occurred on February 4, 1982, over a year before the June 1, 1983 accident discussed earlier in our opinion with respect to P-Corp.
After the February 4, 1982 accident, the lawyer, according to reports signed by the psychologist, engaged in psychotherapy with the psychologist. "Attending Physician Reports" signed by the psychologist and dated April 29, 1982, July 6, 1982, December 5, 1983, and May 18, 1984 were submitted by the lawyer to his no-fault insurance carrier to support his request for a payment of $ 1,475.00 to cover psychotherapy. Government's Exhibit 3. These reports diagnosed the lawyer as suffering from "Post-Traumatic Stress Disorder," a condition the psychologist indicated was solely a result of the February 4, 1982 accident. Id.
After his June 1, 1983 accident, the lawyer also submitted attending physician reports dated October 11, 1983 and May 18, 1984 to his no-fault carrier. Government's Exhibit 4. These reports were prepared so that the lawyer could obtain payment for therapy sessions with the psychologist. The reports indicated that the lawyer was suffering from "Generalized Anxiety Disorder" resulting solely from the June 1, 1983 accident. Id.
As mentioned in our opinion as to P-Corp, the lawyer filed a "pain and suffering" claim with an insurance company, seeking compensation for harm caused by the June 1, 1983 accident. This claim culminated in a lawsuit in the Superior Court of New Jersey, which was settled for $ 12,500.
A psychological consultation report prepared by the psychologist was sent to the insurance carrier in support of the lawyer's personal injury claim. Government's Exhibit 7. The report indicates that the lawyer had a serious automobile accident in February, 1982 and required extended psychological counseling as a result of the accident. Id.
A psychological consultation report was also prepared by the psychologist on August 12, 1982 with respect to the February 4, 1982 accident. Government's Exhibit 6. The two reports are markedly similar, and a fair comparison of the lawyer's symptoms as reported by the psychologist was prepared by the government:
1982 Report 1983 Report
Government Exhibit 6 Government Exhibit 7
1. Anxiety 1. Anxiety
2. Flashbacks 2. Flashbacks
3. Phobic reaction 3. Phobic reaction
4. Difficulty falling asleep 4. Difficulty falling
and staying asleep asleep and staying asleep
5. Constant fatigue result- 5. Fatigue has made him
ing in irritability feel edgy and irritable
6. Abrupt with family and 6. Abrupt and aggressive in
generally argumentative with other his interactions, and
people and over-reacts to minimal tends to over-react to
stressful situations people and situations
7. Depression resulting in 7. Suffers from feelings of lethargy
feelings of lethargy
8. General malaise 8. General malaise
9. Loss of libido 9. Loss of libido
10. Social withdrawal and 10. Isolated from social contacts,
isolation becoming considerably
11. Entrenched in a self- 11. Resulting in a self-
perpetrating negative perpetrating negative
Diagnosis: Post-traumatic Diagnosis: Generalized
Stress Disorder Anxiety Disorder
Government's Response to Motion to Quash at 8.
Despite these similarities in symptomatology, the attending physician's reports generated after the June 1, 1983 accident contained the following set of answers:
When did symptoms first appear?
Date: June 1, 1983.
When did the patient first consult you for this condition?
Date: June 17, 1983
Has patient ever had same or similar condition? (answered "no").