The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING DEFENDANT'S APPEAL
Before the Court is Defendant John Fitzgerald Wallette's "Appeal from Magistrate Order" filed on January 14, 2011. See Docket No. 56. The Government filed a response in opposition to the appeal on January 18, 2011. See Docket No. 57. For the reasons set forth below, the Court denies the Defendant's appeal.
On July 15, 2009, John Wallette was indicted on one count of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c) and 1153. See Docket No. 1. On November 19, 2009, Wallette filed a "Motion to Produce Mental Health and/or Counseling Records" in which he moved for an order requiring the Government, mental health facilities, or counseling agencies to provide all mental health and counseling records of the alleged minor victim, B.W. See Docket No. 25. On December 7, 2009, the Court issued an "Order Denying as Moot Defendant's Motion to Produce Mental Health and Counseling Records." See Docket No. 29. The Court held that "[t]he mental health and counseling records which the Defendant seeks are currently en route to the United States Attorney's Office and will be promptly provided to the Defendant upon the Government's review and appropriate redaction." See Docket No. 29.
On October 7, 2010, Wallette filed a "Motion for Subpoena Duces Tecum Directing Pretrial Production of Documentary Evidence," requesting a subpoena that would require Rolette County Social Services and North Central Human Service Center to produce the following documents:
All documents containing information about or pertaining to counseling sessions involving [B.W.] from January 1, 2008, to the present. This request includes, but is not limited to any and all counseling session notes, reports, summaries, photographs, transcripts, video tapes, audio tapes, or any other materials prepared in connection with services provided to [B.W.] by individuals at Rolette County Social Services and the North Central Human Service Center including but not limited to Tammy Ness and any other individuals providing such services.
See Docket No. 46. The Government filed a response in opposition to the motion on October 12, 2010. See Docket No. 47.
On November 10, 2010, Magistrate Judge Charles S. Miller, Jr. ordered Wallette to serve notice of the subpoena upon B.W., along with a copy of the order, on or before November 22, 2010, and stated that B.W. had 14 days to move to quash, object to, or otherwise modify the subpoena. See Docket No. 49. Judge Miller further ordered "that if no objection is received from the alleged victim by December 6, 2010, the defendant shall serve the subpoena upon Rollette [sic] County Social Services and the North Central Human Service Center." See Docket No. 49.*fn1 Judge Miller would then conduct an in camera inspection to determine what portion of the requested records are relevant and should be available to Wallette for pretrial inspection.
On December 23, 2010, Judge Miller issued an order regarding his in camera inspection of the documents. See Docket No. 52. Judge Miller ordered that the parties' attorneys would be allowed to inspect and copy the records that contain information not the product of the federal psychotherapist- patient privilege. However, the communications that are subject to the federal psychotherapist-patient privilege would be redacted. Wallette appeals this order and requests the Court "reverse that portion of the Magistrate Judge's Order denying disclosure of what the Magistrate Judge believed was information protected by the psychotherapist-patient privilege and direct that said information be disclosed to the parties as soon as possible." See Docket No. 56.
Local Criminal Rule 59.1(D)(2) provides:
Any party may appeal from a magistrate judge's determination of a non-dispositive matter in a criminal case within fourteen (14) days after being served with a copy of the magistrate judge's order, unless a different time is prescribed by the magistrate judge. (28 U.S.C. § 636(b)(1)(A) & Fed. R. Crim. P. 59(a)). The appealing party must serve and file a written notice of appeal, which must specifically designate the order or part thereof from which the appeal is taken and the grounds for appeal. The party filing an appeal must file with the clerk a transcript of the hearing before the magistrate judge wherein findings of fact were made. A district judge must consider the appeal and set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law. The filing of such an appeal does not operate to stay the magistrate judge's order. . . .
In Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court recognized a federal common law psychotherapist-patient privilege. The Supreme Court held that "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." Jaffee, 518 U.S. at 15. The privilege also extends to confidential communications made to licensed social workers in the course of psychotherapy. Id. The ...