Notice ¶¶ 5-6, at 3-4. B. Garcia avers that:

Notice ¶ 4, at 2-4.

45 C.F.R. 164.512(k)(5)(i). None of those circumstances apply to Troup's and B. Garcia's requests in the Health Records Motion. Consequently, Troup and B. Garcia must rely on a different exception to 45 C.F.R. § 164.508(a)(1). That exception is 45 C.F.R. § 164.512(e).

45 C.F.R. § 164.512(e).

Psychotherapy notes — "notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session ... that are separated from the rest of the individual's medical record," but not "medication prescription and monitoring" or summaries of "[d]iagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date," 45 C.F.C. § 164.501 — are held to a higher standard, so 45 C.F.R. § 164.512(e) does not permit their disclosure, see 45 C.F.R. § 164.508(a)(2). Healthcare providers can disclose psychotherapy notes without patient consent in very few circumstances, see 45 C.F.R. § 164.508(a)(2), and the only circumstance that potentially applies in this case is 45 C.F.R. § 154.512(a):

45 C.F.R. § 164.512(a).

45 C.F.R. § 164.103. Even if rule 17(c) subpoenas qualify as "issued by a court," 45 C.F.R. § 164.103, and not by the clerk or by attorneys, see Fed. R. Crim. P. 17(a)("The clerk must issue a blank subpoena — signed and sealed — to the party requesting it, and that party must fill in the blanks before the subpoena is served"), a rule 17(c) subpoena cannot be used to obtain psychotherapy notes — unless the patient waives the psychotherapist privilege — because "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 v. Redmond, 518 U.S. 1, 17, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996).

Confidentiality is an important limitation on the psychotherapist privilege's scope, because it means that the privilege does not apply when a patient "`has no reasonable expectation that the communications will remain private.'" Dorato v. Smith, 163 F.Supp.3d 837, 886 (D.N.M. 2015)(Browning, J.)(quoting Estate Turnbow v. Ogden City, 254 F.R.D. 434, 437 (D. Utah 2008)(Warner, J.)). For example, to the extent that a patient "is informed that evaluations, tests, therapy session notes, or any other information will be disclosed to his or her employer," that information is not privileged. Dorato v. Smith, 163 F.Supp.3d at 887. The psychotherapist privilege would apply, however, to documents associated with employer-provided therapy if the patient reasonably believed that the employer would not have access to the information in those documents. See Dorato v. Smith, 163 F.Supp.3d at 887 ("If, for example, the City of Albuquerque required officers involved in police shootings to visit psychotherapists as an employee benefit, but did not receive the results of the examinations, the results need not be disclosed.").

Carefully applying the psychotherapist privilege to confidential communications only, i.e., to communications where a patient has a reasonable expectation of privacy, resonates with the policy rationale underlying the privilege. The psychotherapist privilege exists, because "the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment," but that ship has sailed once a patient knows that a given communication can be disclosed to third parties. Jaffee v. Redmond, 518 U.S. at 10, 116 S.Ct. 1923. Similarly, "much of the desirable evidence to which litigants seek access... is unlikely to come into being" without the psychotherapist privilege, because "confidential conversations between psychotherapists and their patients would surely be chilled," but that reasoning does not apply to communications that patients are willing to make even when they know that those communications are not private. Jaffee v. Redmond, 518 U.S. at 12, 116 S.Ct. 1923.

Two linguistic clarifications are appropriate. First, when considering whether the psychotherapist privilege applies, the Court sometimes uses waiver terminology. See Dorato v. Smith, 163 F.Supp.3d at 843 (concluding that, "although there is a federal psychotherapist-patient privilege, Smith waived that privilege as to both records and examinations which he knew would be disclosed to others"); id. at 886 (stating that "a party waives the privilege if he or she" has no reasonable expectation that a communication will remain private"). Strictly speaking, however, the psychotherapist privilege never applies to communications made in a non-confidential setting, so it is impossible to waive, i.e., relinquish or abandon, the privilege vis-à-vis those communications. See Waiver, Black's Law Dictionary (10th ed. 2014)("The voluntary relinquishment or abandonment — express or implied — of a legal right or advantage."). Nevertheless, the term waiver is apt when someone deliberately reveals an initially confidential communication. See Waiver by Subsequent Disclosure, Black's Law Dictionary (10th ed. 2014)("A person's waiver of a previously privileged communication by later actions that are inconsistent with maintaining the privilege."). Second, while asking whether a document was "generated at the direction of and for the benefit of" a third party is often analytically helpful when analyzing whether a communication is confidential, the ultimate touchstone is always whether the patient had a reasonable expectation of privacy. Dorato v. Smith, 163 F.Supp.3d at 843. To illustrate, when an employer provides mental health services to its employees as part of their compensation, the employer does so for its own benefit, i.e., to attract and retain desireable employees. No one believes, however, that the psychotherapist privilege ceases to apply just because an employer foots a therapist's bill. See Dorato v. Smith, 163 F.Supp.3d at 887.

Professor Stephen A. Saltzburg cautions that "the Jaffee Court's promulgation of an `absolute' privilege must be tempered by constitutional considerations in criminal cases; a case-dependent balance between the need for the privilege and the defendant's need for the evidence will have to be conducted," Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 501.02[6] (11th ed. 2017), but the Tenth Circuit does not recognize that any such considerations exist, see United States v. LaVallee, 439 F.3d at 692 (concluding that a criminal defendant's "Sixth Amendment rights were not implicated" — much less violated — by denying the defendant's motion seeking production of a prosecution witness' "psychiatric records to be used during cross-examination as impeachment evidence").

Production under rule 17 is more limited than production under rule 16 in several respects, however. First, production under rule 16 generally occurs before trial begins. See United States v. Hernandez-Muniz, 170 F.3d 1007, 1010 (10th Cir. 1999)("Rule 16 is designed to provide the defendant with sufficient information to make an informed decision about a plea, to allow the court to rule on admissibility motions before trial, to minimize prejudicial surprise at trial, and to generally increase the efficiency of litigation."). Rule 17, however, has been "consistently interpreted... to permit the issuance of subpoenas only to compel attendance at formal proceedings such as hearings and trials." United States v. Villa-Chaparro, 115 F.3d 797 (10th Cir. 1997). While rule 17(c) permits the Court to "direct the witness to produce the designated items in court before trial or before they are to be offered into evidence," Fed. R. Crim. P. 17(c)(1), the Supreme Court of the United States of America has indicated that,

United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)(Burger, C.J.)(footnote omitted). "Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial." United States v. Nixon, 418 U.S. at 701, 94 S.Ct. 3090.

Second, defendants can obtain rule 16 disclosure regarding an item of evidence that "is material to preparing the defense," Fed. R. Crim. P. 16(a)(1)(E)(i), i.e., an item for which "there is a strong indication that it will `play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal,'" United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)(quoting United States v. George, 786 F.Supp. 56, 58 (D.D.C. 1992)(Lamberth, J.)). Obtaining rule 17(c) disclosure is more difficult, because a defendant "must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity." United States v. Nixon, 418 U.S. at 700, 94 S.Ct. 3090. See United States v. Abdush-Shakur, 465 F.3d 458, 467 (10th Cir. 2006)(applying United States v. Nixon's analysis regarding pretrial production under a rule 17(c) subpoena duces tecum to all rule 17(c) subpoenas).

Third, while rule 16 disclosures go directly to the defendants, see Fed. R. Crim. P. 16(a)(1)(E)(requiring the United States to permit the defendants "to inspect and to copy" certain documents), but production under a rule 17(c) subpoena takes place at a court and not at a defense attorney's office, see United States v. Vigil, No. CR 10-2310, 2013 WL 3270995, at *21 (D.N.M. June 3, 2013)(Browning, J.)(denying a defendant's request to have rule 17(c) production occur at her attorney's office and instead ordering production at the Court); see also United States v. Begay, No. CR 14-0747, 2018 WL 401265, at *11 (D.N.M. Jan. 12, 2018)(Browning, J.)("The Court should have ordered [rule 17(c)] production at the courthouse.").

Fourth, under rule 17(c), unlike under rule16, "[o]n motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive." Fed. R. Crim. P. 17(c)(2). See United States v. Nixon, 418 U.S. at 698, 94 S.Ct. 3090 ("A subpoena for documents may be quashed if their production would be `unreasonable or oppressive,' but not otherwise." (quoting Fed. R. Crim. P. 17(c)(2))).

The Court concludes that, if Troup and B. Garcia seek to use a rule 17(c) subpoena to obtain the health records of witnesses — such as Griego, Alonso, and Munoz — who do not authorize disclosure, their request for "the New Mexico Corrections Department's physical and mental health records" associated with those witnesses is insufficiently specific. Health Records Motion at 1. Production under such a rule 17(c) subpoena would occur at the Court; ex parte production to Troup and B. Garcia directly would not be permissible. Additionally, a rule 17(c) subpoena cannot reach "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment," because those communications "are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." Jaffee v. Redmond, 518 U.S. at 17, 116 S.Ct. 1923. See supra note 5 (emphasizing that the psychotherapist privilege applies only to communications that are confidential, i.e., where a patient has a legitimate expectation of privacy).

That a witness takes the stand does not automatically waive the psychotherapist privilege even though parties can waive the psychotherapist privilege by placing their mental condition at issue. See Dorato v. Smith, 163 F.Supp.3d at 886. The United States puts its witnesses' mental health at issue insofar as their mental health informs their credibility, but the privilege belongs to the witnesses and not to the United States. Consequently, the United States' decision to call a witness does not waive the witness' psychotherapist privilege. See Dorato v. Smith, 163 F.Supp.3d at 886 ("Dorato, rather than the Defendants, has attempted to place Smith's medical conditions at issue. The Defendants thus have not waived any privileges on this ground.").

The Court would, however, order disclosure, pursuant to a rule 17(c) subpoena, regarding: (i) psychotropic medications prescribed to witnesses; (ii) summaries of witness diagnoses and prognoses; and (iii) witness treatment plans and progress to date. If there are competency or psychological reports prepared for a court or prison officials to review, read, and use, those documents also should be provided, but reports prepared for or by only a psychiatrist or psychologist who is providing health care to a prisoner are probably privileged and the Court is not likely to compel their disclosure. The Court's order would direct NMCD to produce documents subject to the subpoena "before trial or before they are to be offered in evidence," Fed. R. Crim. P. 17(c)(1), in accordance with the Stipulated Protective Order, filed April 5, 2018 (Doc. 2076).