ORDER FOR SEALED IN-CAMERA INTERVIEW OF DR. JANA PRICE-SHARPS RE: DEFENDANT JUAN AVILA'S PSYCHOTHERAPIST-PATIENT PRIVILEGE CLAIM

SHEILA K. OBERTO, Magistrate Judge.

The parties appeared telephonically for a hearing on Plaintiffs' motion for an independent medical examination of Defendant Juan Avila pursuant to Federal Rule of Civil Procedure 35 and other pending discovery matters. Julia Sherwin, Esq., appeared on behalf of Plaintiffs; Bruce Praet, Esq., appeared on behalf of the City of Fresno, Chief Jerry Dyer, and Miguel Alvarez; Kevin Osterberg, Esq., appeared on behalf of Juan Avila.1

Defendant Avila has raised a claim of privilege with respect to certain psychotherapist-patient communications. Plaintiffs assert that Defendant Avila impliedly waived any privilege when he knowingly and voluntarily disclosed these psychotherapist-patient communications to third parties in August 2014.

Given the unique circumstances of the asserted waiver in this case, the inquiry as to whether Defendant Avila knowingly and voluntarily waived the privilege is particularly sensitive and must remain confidential until further order of the Court. As discussed at the hearing, to appropriately balance the respective interests of the parties, this inquiry must be made by the Court confidentially, in a sealed and in-camera proceeding with Dr. Price-Sharps.

As such, Dr. Price-Sharps shall personally appear for an in-camera interview before the undersigned at the United States Federal Courthouse, 2500 Tulare Street, 6th Floor, Courtroom 7, in Fresno, California. Dr. Price-Sharps is directed to review the following dates and times and shall contact this Court's chambers at (559) 499 5790 by no later than August 17, 2015, to apprise the Court of her availability as to one of the dates/times:

August 21, 2015 at 3:00 p.m.

September 8, 2015, at 3:00 p.m.

September 10, 2015, at 3:00 p.m.

Dr. Price-Sharps may retain independent counsel for purposes of this in camera interview. The interview will seek to ascertain Dr. Price-Sharps' opinion regarding whether Mr. Avila was able to knowingly and voluntarily waive the psychotherapist-patient privilege and the bases upon which Dr. Price-Sharps relied in arriving at her opinion. Dr. Price-Sharps shall bring to the in camera interview a copy of all of her treatment documentation, records, and/or notes as it pertains to Juan Avila.2 The Court will issue an order informing the parties when this in camera interview has been set. When the interview is concluded, the Court will issue a further order regarding Plaintiffs' opportunity for their own expert to conduct a confidential review and to submit an expert opinion on the issue of whether any waiver was voluntarily and knowingly given.

Dr. Price-Sharps is DIRECTED not to communicate with any counsel representing Plaintiffs or Defendants in this matter, including but not limited to Ms. Sherwin, Mr. Praet, or Mr. Osterberg regarding this in camera interview.

Finally, Mr. Praet is to review the complete internal affairs file as discussed at the hearing, and determine what portions will be produced to Plaintiffs. The documentation will be produced by no later than August 31, 2015, with any applicable privilege log. All parties' counsel shall set a date to meet and confer regarding additional discovery issues, particularly as it relates to underlying psychotherapist records made or taken in the course of providing fitness-for-duty evaluations of Defendant Avila to the City of Fresno.

Within one (1) day of the filing of this order, Mr. Osterberg shall deliver a copy of this order to Dr. Price-Sharps via email as discussed at the hearing.

IT IS SO ORDERED.