                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2000

Pearson v. Miller, et al.
Precedential or Non-Precedential:

Docket 99-7047




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Filed April 26, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No: 99-7047

JACQUELINE PEARSON, Individually and
as Parent & Natural Guardian of Lindsay Pearson

v.

BRUCE MILLER; LUZERNE COUNTY CHILDREN &
YOUTH SERVICES, INC.

LUZERNE COUNTY CHILDREN &
YOUTH SERVICES, INC.,
Defendant/Third-Party Plaintiff

v.

KIDSPEACE NATIONAL CENTERS FOR KIDS
IN CRISIS, INC.,
Third Party Defendant

Luzerne County Children & Youth
Services, Inc.; KidsPeace National
Centers for Kids in Crisis, Inc.,
       Appellants

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 97-764)
District Judge: Honorable Yvette Kane

Argued September 22, 1999

Before: BECKER, Chief Judge, and GARTH, Circuit Judge,
and POLLAK, District Judge.*
_________________________________________________________________

* Honorable Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
(Filed April 26, 2000)

      Chester F. Dudick, Jr., Esq.
       (Argued)
      Dudick & Decker, P.C.
      1043 Wyoming Avenue
      Forty Fort, PA 18704

      Richard M. Hughes, III, Esq.
      387 Wyoming Avenue
      Kingston, PA 18704

        Counsel for Appellee

      Bruce Miller #CY-4190
      Luzerne County Prison
      99 Water Street
      Wilkes-Barre, PA 18702

        Pro Se Appellee

      Barbara O'Connell, Esq. (Argued)
      Sweeney & Sheehan
      1515 Market Street, 19th Floor
      Philadelphia, PA 19102

       Counsel for Appellant Luzerne
      County Children & Youth Services,
      Inc.

      Richard F. Stevens, Esq.
      Timothy T. Stevens, Esq. (Argued)
      Stevens & Johnson
      740 Hamilton Mall
      Allentown, PA 18101

       Counsel for Appellant KidsPeace
      National Center for Kids in Crisis,
      Inc.

                               2
OPINION OF THE COURT

POLLAK, District Judge.

This is an interlocutory appeal1 from a discovery order of
the United States District Court for the Middle District of
Pennsylvania in a suit presenting claims arising under 42
U.S.C. S 1983, to which are annexed a variety of pendent
state law claims. The order appealed from granted--subject
to certain restrictions--plaintiff/appellee Jacqueline
Pearson's motions to compel discovery. In the same order,
the District Court denied, to the same extent, motions of
defendants/appellants Luzerne County Children and Youth
Services, Inc. (LCCYS) and KidsPeace National Centers for
Kids in Crisis, Inc. (KidsPeace) which sought protective
orders authorizing LCCYS and KidsPeace to refrain from
providing plaintiff with the information sought under
plaintiff 's motion to compel.

The information at the center of the present discovery
dispute is information in the possession of LCCYS and
KidsPeace concerning defendant Bruce Miller, who was a
foster child under the supervision of LCCYS and KidsPeace
in December of 1993, when he sexually assaulted Ms.
Pearson's daughter. Ms. Pearson seeks to establish that the
defendant agencies had knowledge of Mr. Miller's violent
sexual propensities sufficient to establish their liability for
the assault. Ms. Pearson thus seeks discovery of material
that might evidence such knowledge. LCCYS and KidsPeace
have resisted plaintiff 's discovery requests on the grounds
that such discovery would violate the confidentiality of that
information in breach of an array of Pennsylvania statutes.

Primarily on the basis of an "Authorization to Release
Information" signed by Mr. Miller, the District Court
rejected the argument of LCCYS and KidsPeace that the
Pennsylvania statutes barred the sought after discovery.
The court held that, subject to certain restrictions
_________________________________________________________________

1. Because interlocutory appeals are not normally permitted, a
discussion of the basis of our appellate jurisdiction is necessary. We
undertake that discussion in Section II, infra .

                               3
necessary to protect other people's interests, Mr. Miller's
release was sufficient to waive the bulk of the protections
afforded by the Pennsylvania statutes. The District Court
thus fashioned an order that compelled discovery of all
material sought except to the extent that such material
contained information the release of which would violate
the rights of third parties protected by the Pennsylvania
statutes, as those statutes were interpreted by the District
Court.

Because, however, discovery disputes in federal courts
are governed by federal law, especially the Federal Rules of
Civil Procedure and the Federal Rules of Evidence, the state
statutory confidentiality provisions that have been invoked
by appellants--and on the basis of which the District Court
fashioned its order--do not directly govern the present
dispute. Only to the extent that federal law may recognize
the force of those provisions are they relevant here. The
ultimate issue is whether the discovery sought is permitted
as a matter of federal law.

Acknowledging the applicability of federal law, appellants
contend that the state confidentiality provisions ought to be
recognized under the federal law of evidentiary privileges.
We are thus directed to the question whether the
applicability of the federal law governing discovery disputes
bars the release of the demanded information either--as
appellants have chiefly argued--because federal law
recognizes one or more applicable evidentiary privileges, or
because federal law otherwise provides for the protection of
the information here in dispute.

For the reasons discussed below, we reject appellants'
argument that the disputed material is protected by a
federal evidentiary privilege. While we accept that
appellants may have very legitimate concerns regarding the
confidentiality of the information sought, we believe that
those concerns are better addressed in the context of the
District Court's power to impose reasonable limits on the
discovery of sensitive information pursuant to Federal Rule
of Civil Procedure 26(c). To enable the District Court to
fashion the appropriate accommodation of the competing
interests, we will vacate the order appealed from and

                               4
remand for further proceedings consistent with this
opinion.

I.

The facts relevant to the resolution of the issue before
this court are largely undisputed. Plaintiff Jacqueline
Pearson--appellee in this court--brought this action on her
own behalf and as parent of her daughter Lindsay Pearson.
Ms. Pearson alleges, and appellants do not contest, that
defendant Bruce Miller abducted and sexually assaulted
twelve-year-old Lindsay on December 19, 1993. Mr. Miller
was, at the time of the assault and for the previous ten
months, living in a foster home in Luzerne County,
Pennsylvania. He was under the custody and supervision of
LCCYS, a county government agency, as he had been for
the previous several years. Mr. Miller was placed in the
particular foster home in which he lived by KidsPeace, a
private organization under contract with LCCYS to provide
services to LCCYS's clients. Beyond this general
characterization, it is unclear how Mr. Miller's supervision
was divided between the two organizations.

Following the attack, a criminal rape charge was brought
against Mr. Miller. He pled nolo contendere to the charge,
and was sentenced to five to ten years in prison. As far as
we are aware, he is currently serving that sentence.

Ms. Pearson initiated the present action against Mr.
Miller and appellant LCCYS in December of 1995 in the
Court of Common Pleas for Luzerne County, Pennsylvania.
Thereafter, LCCYS removed the case to the United States
District Court for the Middle District of Pennsylvania.
LCCYS then brought in appellant KidsPeace as a third-
party defendant. Ms. Pearson then amended her complaint
to assert claims against both agencies.

Ms. Pearson's primary cause of action against appellants
is a S 1983 claim alleging that they are liable for the
consequences of a "state-created danger." In particular,
appellee Pearson alleges that appellants knew Mr. Miller to
have had violent sexual propensities that made him a
predictable danger to young girls. In light of this knowledge,
appellee contends that Mr. Miller "should not have been

                               5
allowed access to young girls such as he gained by his
foster care placement, by being permitted to attend public
school, and by being allowed to ride a school bus on his
own." In addition to her S 1983 claim, appellee's second
amended complaint includes federal equal protection and
common law negligence and invasion of privacy claims
against appellants, as well as a prayer for punitive
damages. On July 10, 1998, the District Court dismissed
with prejudice, as against LCCYS only, Ms. Pearson's state
law claims, as well as all claims for punitive damages.
Thus, appellee's remaining claims against LCCYS are
limited to federal ones; as against KidsPeace, on the other
hand, the above-noted state law claims remain in the case
together with the federal claims.

During the discovery period, Ms. Pearson filed notices of
deposition directed to both appellants announcing an
intention to depose "all case managers and their
supervisors who had responsibility for the management and
supervision of Bruce Miller for the five (5) years prior to
December 17, 1993." Soon thereafter, plaintiff served
interrogatories on LCCYS and KidsPeace that included
requests for information which--so both appellants contend
--would require the release of sensitive confidential
information contained in their respective files on Bruce
Miller. In order to avoid that perceived outcome, KidsPeace
and LCCYS filed motions for protective orders seeking
protection from each of these requests. Appellee responded
by filing a motion to compel discovery of the disputed
material.

After appellants had filed their motions for protective
orders, but prior to the filing of the motion to compel, Ms.
Pearson's attorneys obtained an "Authorization to Release
Records" signed by Bruce Miller. Mr. Miller had, by that
time, reached majority, and was acting as his own attorney.
The text of that document is as follows:

       I, BRUCE MILLER, hereby authorize Luzerne County
       Children and Youth Services and/or KidsPeace
       National Centers for Kids in Crisis, Inc. to release my
       entire file, including, but not limited to, any and all
       evaluations, memoranda, correspondence, personal
       data, recommendations and requests to Chester

                               6
         Dudick, Jr. Esquire and Richard M. Hughes, III,
         Esquire.

Appellants sought protection from discovery on the basis
of the confidentiality provisions contained in three statutes:

The first statute, the Child Protective Services Law
(CPSL), 23 Pa. Cons. Stat. S 6301 et seq., mandates that
the confidentiality of reports of child abuse made pursuant
to that law be preserved. It provides that such reports are
to be made available only to a limited number of persons,
among whom are the subject of any report and a guardian
ad litem of the child.2
_________________________________________________________________

2. The arguably relevant exceptions to the general rule of confidentiality
are contained in 23 Pa. Cons. Stat. Ann. S 6340:

(a) General rule.--Reports specified in sectio n 6339 (relating to
confidentiality of reports) shall only be made available to:

         . . . .

         (3) A guardian ad litem or court designated advoca te for the
child.

         . . . .

         (5) A court of competent jurisdiction, 8 pursuant to court order or
         subpoena in a criminal matter involving a charge of child abuse
         . . . .

         (5.1) A court of common pleas in connection with any matter
         involving custody of a child. . . .

         . . . .

         (b) Release of information to subject of report.--At any time and
         upon written request, a subject of a report may receive a copy of
all
         information, except that prohibited from being disclosed by
         subsection (c), contained in the Statewide central register or in
any
         report filed pursuant to section 6313 (relating to reporting
         procedure).

       (c) Protecting identity of person making report.--Except for
reports
       pursuant to subsection (a)(9) and (10), the release of data that
       would identify the person who made a report of suspected child
       abuse or the person who cooperated in a subsequent investigation
     is prohibited unless the secretary finds that the release will not
be
     detrimental to the safety of that person. Law enforcement officials
     shall treat all reporting sources as confidential sources.

                             7
The second statute, the Juvenile Act, 42 Pa. Cons. Stat.
S 6501 et seq., restricts access to "files and records of the
court" related to proceedings under the Act, which include
custody disputes, delinquency proceedings, et cetera. Such
files are to be kept confidential, except that certain
excepted persons, including parties "and their counsel and
representatives" are permitted to view the documents
contained therein. Even those granted access by an
exception to the general confidentiality rule, however, "shall
not be permitted to see reports revealing the names of
confidential sources of information contained in social
reports, except at the discretion of the court." 42 Pa. Cons.
Stat. S 6307(2).

The third statute invoked by appellants is the Mental
Health Procedures Act (MHPA), 50 Pa. Cons. Stat.S 7101 et
seq. That statute directs that "[a]ll documents concerning
persons in treatment shall be kept confidential." 50 Pa.
Cons. Stat. Ann. S 7111(a).3 Such documents may be
released only by the consent of the subject, or in other
limited circumstances.4
_________________________________________________________________

3. In pertinent part, the MHPA provides that:

       (a) All documents concerning persons in treatment shall be kept
       confidential and, without the person's written consent, may not be
       released or their contents disclosed to anyone except:

       (1) those engaged in providing treatment for the p erson;

       (2) the county administrator, pursuant to section 110;

       (3) a court in the course of legal proceedings aut horized by this
       act; and

       (4) pursuant to Federal rules, statutes and regula tions governing
       disclosure of patient information where treatment is undertaken
       in a Federal agency.

       In no event, however, shall privileged communications, whether
       written or oral, be disclosed to anyone without such written
consent.

50 Pa. C.S.A. S 7111.
4. Appellants also sought protection under the County Youth Services
Law, 55 Pa. Code S 3130 et seq., a regulation that governs county youth
services agencies, such as LCCYS. The law contains, inter alia,
requirements that such agencies maintain the confidentiality of their
records. Because these requirements are broadly similar to those
contained in the CPSL, we will, for the most part, restrict our discussion
to the three statutes noted above.
8
The District Court rejected the appellants' contention
that these statutes together created a comprehensive shield
protecting most, if not all, of the information held by the
two organizations concerning Mr. Miller. The court did so
on the basis of its view that the release signed by Mr. Miller
was sufficient to waive the bulk of the confidentiality
protections contemplated by the statutes. The District
Court accepted that the statutes--including the
confidentiality provisions therein--were, in thefirst
instance, applicable to the dispute at hand, but held that
Mr. Miller had effectively waived his interests in protection,
thus allowing the bulk of the material to be turned over,
subject to limited restrictions primarily aimed at the
protection of other people whose privacy interests might be
compromised by the unhindered release of the information.5

II.

Before we turn to the merits of this discovery dispute, we
are faced with the issue of appellate jurisdiction. The
District Court had original federal question jurisdiction of
this case pursuant to 28 U.S.C. S 1331. This case comes to
this court, however, as an interlocutory appeal of a
discovery order. "As a general rule, a district court's order
enforcing a discovery request is not a `final order' subject to
appellate review." Church of Scientology v. United States,
_________________________________________________________________

5. The District Court imposed the following restrictions:

       a. In accordance with section 6307(2) of the Juvenile Act, 42 Pa.
       Cons. Stat. S 6303-6365 (1982 & Supp. 1998), neither Mr. Miller
       nor his counsel or representative may see any courtfiles or
       records of Juvenile Act proceedings which contain the names of
       confidential sources of information.

       b. Pursuant to 55 Pa. Code S 3680.35(b)(5), defendants shall redact
       the names and other identifying information of individuals other
       than Mr. Miller, when the disclosure of such information would
       violate the legitimate privacy expectations of any individual other
       than Mr. Miller.

       c. It is further ordered that plaintiff shall maintain as
confidential
       all documents received from defendants.

Pearson v. Miller, No. 97-764 (M.D. Pa. Dec. 14, 1998).

                               9
506 U.S. 9, 18 n.11 (1992). This court has jurisdiction over
this appeal, therefore, only if it fits within one of the
exceptions to that general rule. Because we find that the
present case fits within the collateral order doctrine--the
exception to the final order rule which the Supreme Court
fashioned in Cohen v. Beneficial Indus. Loan Corp. 337 U.S.
541(1949)--we hold that we properly have jurisdiction over
the appeal. This court has interpreted the Cohen test as
follows:

       An appeal of a nonfinal order will lie if (1) the order
       from which the appellant appeals conclusively
       determines the disputed question; (2) the order resolves
       an important issue that is completely separate from the
       merits of the dispute; and (3) the order is effectively
       unreviewable on appeal from the judgment.

In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir. 1997).

In Ford, this court held that an appeal from a denial of
the application of the attorney-client privilege was
reviewable under the collateral order doctrine. See Ford,
110 F.3d at 964. For similar reasons, we find that each of
the requirements of the test is met in the present case. An
order denying the applicability of a claimed privilege
conclusively determines the question, and does so in a way
that is effectively unreviewable: once released, information
has lost a measure of confidentiality that can never fully be
regained. See id. at 963. Further, it is clear that resolution
of the present issue in this forum--which concerns only the
scope of state or federal privileges--would not require the
court to delve into the substance of the underlying dispute
--which concerns appellants' knowledge of Mr. Miller's
violent sexual proclivities--in any apparent way. And it is
beyond dispute that the issue in the present action is an
important one. Cf. Jaffee v. Redmond, 518 U.S. 1, 8 (1996)
(granting certiorari on the question whether federal law
recognizes a psychotherapist-patient privilege, in part
because of "the importance of the question"). Thus, the
order appealed from "resolves an important issue that is
completely separate from the merits of the dispute." Ford,
110 F.3d at 958.

Having found that each of the requirements of the

                               10
collateral order exception to the final order doctrine
obtains, we now turn to the merits of the discovery dispute.6

III.

The general framework for determining the scope of
allowable discovery for cases in federal courts is provided
by Federal Rule of Civil Procedure 26, which provides that
"parties may obtain discovery regarding any matter, not
privileged, which is relevant to the subject matter involved
in the pending action." Fed. R. Civ. P. 26(b)(1). As an initial
matter, therefore, all relevant material is discoverable
unless an applicable evidentiary privilege is asserted. The
presumption that such matter is discoverable, however, is
defeasible. Rule 26(c) grants federal judges the discretion to
issue protective orders that impose restrictions on the
extent and manner of discovery where necessary "to protect
a party or person from annoyance, embarrassment,
oppression, or undue burden or expense." Fed. R. Civ. P.
26(c).

Rule 26 thus allows for two approaches to seeking the
protection of sensitive--but relevant--information, like that
at issue here. A party seeking to protect the confidentiality
of such information may argue, as appellants have here,
that the information is protected by an evidentiary privilege.
Any material covered by a properly asserted privilege would
necessarily be protected from discovery, pursuant to Rule
26(b)(1). Where such a privilege is not available, a party
may petition the court for a protective order that limits
_________________________________________________________________

6. Because the order appealed from concerns claims of privilege, our
conclusion that, pursuant to the collateral order doctrine, we have
appellate jurisdiction to review that order is in harmony with our
decision just a few days ago in Bacher v. Allstate Insurance Company,
No. 99-1572 (April 20, 2000). In Bacher we dismissed an appeal from a
discovery order requiring a defendant insurance carrier to disclose
amounts paid in settlement of other assertedly similar lawsuits. We there
held that, "[i]n light of Cunningham[v. Hamilton County, 119 S.Ct. 1915
(1999)] and Digital Equipment [v. Desktop Direct, Inc., 511 U.S. 863
(1994)] and the approach taken by other courts of appeals we determine
that we should not extend our case law beyond the narrow categories of
trade secrets and traditionally recognized privileges, such as attorney-
client and work product."

                               11
discovery in accordance with Rule 26(c). The court, in its
discretion, is authorized by this subsection to fashion a set
of limitations that allows as much relevant material to be
discovered as possible, while preventing unnecessary
intrusions into the legitimate interests--including privacy
and other confidentiality interests--that might be harmed
by the release of the material sought.

Appellants, in this court, have primarily pursued the
approach of seeking the protection of an evidentiary
privilege. Thus, while acknowledging that the District Court
erred in applying state law directly, they argue that, as a
matter of federal law, the concerns captured by the
Commonwealth's confidentiality statutes ought to be
reflected in federal recognition of an evidentiary privilege
that would allow appellants to properly resist all, or nearly
all, of the discovery attempted by appellee. We therefore
turn first to appellants' claim that the material sought is
protected by an evidentiary privilege under federal law.

a.

All evidentiary privileges asserted in federal court are
governed, in the first instance, by Federal Rule of Evidence
501, which provides:

       [T]he privilege of a witness, person, government, State,
       or political subdivision thereof shall be governed by the
       principles of the common law as they may be
       interpreted by the courts of the United States in the
       light of reason and experience. However, in civil actions
       and proceedings, with respect to an element of a claim
       or defense as to which State law supplies the rule of
       decision, the privilege of a witness, person,
       government, State, or political subdivision thereof shall
       be determined in accordance with State law.

Thus, federal courts are to apply federal law of privilege
to all elements of claims except those "as to which State
law supplies the rule of decision." In general, federal
privileges apply to federal law claims, and state privileges
apply to claims arising under state law. The present case,
however, presents the complexity of having both federal and

                               12
state law claims in the same action.7 The problems
associated with the application of two separate privilege
rules in the same case are readily apparent, especially
where, as here, the evidence in dispute is apparently
relevant to both the state and the federal claims. This court
has resolved this potential conflict in favor of federal
privilege law. Noting that "applying two separate disclosure
rules with respect to different claims tried to the same jury
would be unworkable," we held that "when there are federal
law claims in a case also presenting state law claims, the
federal rule favoring admissibility, rather than any state law
privilege, is the controlling rule." Wm. T. Thompson Co. v.
General Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982).8
Accordingly, for the resolution of the present discovery
dispute, which concerns material relevant to both federal
and state claims, Rule 501 directs us to apply federal
privilege law.

Federal privilege law, as conceived by Rule 501, is
determined by "the principles of common law as they may
be interpreted by the courts of the United States in the light
of reason and experience." No decisions of this court have,
as a matter of federal common law, recognized privileges of
the sort contemplated by the CPSL, the Juvenile Act, or the
MHPA. And so far as we have been able to determine, none
of our sister circuits has recognized cognate privileges as a
matter of federal common law. Thus, appellants are
effectively requesting that we recognize quite novel
privileges as part of the federal common law.9
_________________________________________________________________

7. As discussed above, both federal and state claims remain in the case
against KidsPeace, while each of the remaining claims against LCCYS is
federal.

8. Here, as in Thompson, the disputed discovery material is relevant to
both the state and federal claims. We thus need not reach the question
of whether material that went only to the state claims would be
controlled by federal law simply because distinct federal claims had also
been raised. But see Doe v. Special Investigations Agency, Inc., 779 F.
Supp. 21 (E.D. Pa. 1991) (holding that federal law governs all privilege
questions in cases in which a federal claim has been raised, without
regard to whether the privilege sought would protect information relevant
to the federal claims).

9. It should be noted that one district court has recognized a privilege
of
the kind here sought. That court adopted a Rule 501 privilege protecting

                               13
The federal approach to the recognition of new privileges
is characterized by two principal features. First,"Rule 501
`should be understood as reflecting the view that the
recognition of a privilege based on a confidential
relationship . . . should be determined on a case-by-case
basis.' " Jaffee v. Redmond, 518 U.S. 1, 9 (1996)
(recognizing a psychotherapist-patient privilege under Rule
501). "Congress manifested an affirmative intention not to
freeze the law of privilege. Its purpose rather was to `provide
the courts with the flexibility to develop rules of privilege on
a case-by-case basis,' 120 Cong. Rec. 40891 (1974)
(statement of Rep. Hungate), and to leave the door open to
change." Trammel v. United States, 445 U.S. 40, 47 (1980);
see also In re Grand Jury, 103 F.3d 1140, 1149 (3d Cir.
1997). The general test to be applied in assessing privilege
candidates is whether such a privilege "promotes
sufficiently important interests to outweigh the need for
probative evidence." Trammel, 445 U.S. at 51; Jaffee, 518
U.S. at 9-10.

The other principal feature of the federal approach is that
the considerations against the recognition of new privileges
that would impede access to probative evidence are granted
very significant weight. " `For more than three centuries it
has now been recognized as a fundamental maxim that the
public . . . has a right to every man's evidence. When we
come to examine the various claims of exemption, we start
with the primary assumption that there is a general duty to
give what testimony one is capable of giving, and that any
exemptions which may exist are distinctly exceptional.' "
Jaffee, 518 U.S. at 9 (quoting 8 J. Wigmore, Evidence
_________________________________________________________________

the confidentiality of child abuse reports whose confidentiality is
protected by Tennessee's analog to the CPSL. See Farley v. Farley, 952
F. Supp. 1232 (M.D. Tenn. 1997) ("This Court has little difficulty in
concluding the T.C.A. SS 37-1-409 and 37-1-612 establish an evidentiary
privilege that is entitled to deference under the principles of federalism
and comity that are an implicit component of Rule 501.").

On the other hand, a district court in this circuit has expressly
rejected the privilege here sought under the Juvenile Act. See
Longenbach v. McGonigle, 750 F. Supp. 178, 180 (E.D. Pa. 1990) ("We
know of no common law federal privilege against disclosing juvenile
records.").

                               14
S 2192, p. 64 (3d ed. 1940)). This court has recently stated
that "privileges are disfavored." In re Grand Jury, 103 F.3d
at 1149 (rejecting parent-child privilege); see also Nixon,
418 U.S. at 710 (cautioning that privileges "are not lightly
created nor expansively construed"). Thus, with very limited
exceptions, federal courts have generally declined to grant
requests for new privileges. See, e.g. , University of
Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990) (declining
to adopt academic peer-review privilege); In re Sealed Case,
148 F.3d 1073 (D.C. Cir.) (declining to adopt "protective
function" privilege requested by the Secret Service), cert.
denied, Rubin v. United States, 119 S. Ct. 461 (1998);
Carman v. McDonnell Douglas Corp., 114 F.3d 790, 794 (8th
Cir. 1997) (rejecting a corporate ombudsman privilege and
stating that "[t]he creation of a wholly new evidentiary
privilege is a big step"); Linde Thomson Langworthy Kohn &
Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1514
(D.C. Cir. 1993) ("Federal courts have never recognized an
insured-insurer privilege as such."); EEOC v. Illinois Dept. of
Employment Sec., 995 F.2d 106 (7th Cir. 1993) (rejecting
Rule 501 privilege for records of unemployment hearings);
United States v. Holmes, 594 F.2d 1167 (8th Cir. 1979)
(declining to recognize probation officer privilege). Thus,
federal courts are to assess the appropriateness of new
privileges as they arise in particular cases, but they are to
conduct that assessment with a recognition that only the
most compelling candidates will overcome the law's weighty
dependence on the availability of relevant evidence.

The case for recognizing a particular federal privilege is
stronger, however, where the information sought is
protected by a state privilege. "[T]he policy decisions of the
States bear on the question whether federal courts should
recognize a new privilege or amend the coverage of an
existing one." Jaffee, 518 U.S. at 12-13."A strong policy of
comity between state and federal sovereignties impels
federal courts to recognize state privileges where this can
be accomplished at no substantial cost to federal
substantive and procedural policy." United States v. King,
73 F.R.D. 103, 105 (E.D.N.Y. 1976); see also Memorial
Hosp. v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981); Lora
v. Board of Educ., 74 F.R.D. 565 (E.D.N.Y. 1977); Johnson
v. City of Philadelphia, 1994 WL 612785, at *10 (E.D. Pa.

                               15
Nov. 7, 1994). Thus, a federal court "may seefit for special
reasons to give the law of a particular state highly
persuasive or even controlling effect, but in the last
analysis its decision turns upon the law of the United
States, not that of any state." Riley v. City of Chester, 612
F.2d 708, 715 (3d Cir. 1979) (quoting D'Oench, Duhme &
Co. v. FDIC, 315 U.S. 447, 471 (1942)) (emphasis omitted).

The appropriateness of deference to a state's law of
privilege is diminished, however, in cases in which a
defendant state actor alleged to have violated citizens'
federal rights is asserting the privilege. "[T]here is a `special
danger' in permitting state governments to define the scope
of their own privilege when the misconduct of their agents
is alleged." ACLU v. Finch, 638 F.2d 1336, 1344 (5th Cir.
1981); see also Longenbach, 750 F. Supp. at 180-81 ("Nor
does it make any sense to allow the state, under whose
color of authority officers have allegedly violated rights, to
limit unilaterally the availability of evidence.").10

Appellants have urged that the appropriate level of
respect due to state law in the present case requires that
the Pennsylvania privileges be recognized as a matter of
federal law. A necessary predicate of appellants' favored
outcome, of course, is that Pennsylvania in fact recognizes
evidentiary privileges associated with the statutes in
question. As an initial matter, however, it is not clear that
the statutes in question create evidentiary privileges at all.
Indeed, neither the CPSL nor the Juvenile Act contains the
word "privilege."11 The relevant provisions contained therein
speak primarily of confidentiality, not privilege. On their
face, therefore, these statutes do not appear to establish
evidentiary privileges constituting a bar to the discovery of
_________________________________________________________________

10. This concern is especially strong where, as here, a government
agency asserting the privilege is itself a defendant (as distinct from
being
the employer of a defendant governmental official).

11. The MHPA, on the other hand, does use the word "privilege."
However, the language containing that word does not, on its face, create
a privilege. Following the statute's language mandating confidentiality,
it
refers to "privileged communications," but does so in a way that suggests
that the privilege must be defined elsewhere:"In no event, however, shall
privileged communications, whether written or oral, be disclosed to
anyone without such written consent." 50 Pa. St.S 7111(a).

                               16
relevant information. Statutory provisions providing for
duties of confidentiality do not automatically imply the
creation of evidentiary privileges binding on courts. "Merely
asserting that a state statute declares that the records in
question are `confidential' does not make out a sufficient
claim that the records are `privileged' within the meaning of
Fed. R. Civ. P. 26(b)(1) and Fed R. Evid. 501." Martin v.
Lamb, 122 F.R.D. 143, 146 (W.D.N.Y. 1988); see also
Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1205 (9th Cir.
1975) ("The records are confidential but not privileged.").

It does not follow, however, that a statute providing for a
duty of confidentiality--but lacking an express provision for
an evidentiary privilege, per se--could not also be
interpreted as creating such a privilege. Indeed,
Pennsylvania courts have described each of the statutes
here at issue as creating an evidentiary privilege of one
kind or another. See Commonwealth v. Moyer, 595 A.2d
1177, 1180 (Pa. Super. Ct. 1991) ("[T]hefirst sentence of
[section 7111 of the MHPA] confers a statutory privilege of
confidentiality on the patient's records."); 12 V.B.T. v. Family
Servs., 705 A.2d 1325, 1334 (Pa. Super. Ct. 1998) (noting
that the CPSL creates a privilege, albeit one that is "not
absolute and disclosure of otherwise confidential
information is therefore permitted where compelled by
sufficiently weighty interests") (citing Commonwealth v.
Ritchie, 502 A.2d 148 (Pa. 1985), rev'd on other grounds,
480 U.S. 39 (1987)); id. at 1331 ("[T]he privilege created by
the Juvenile Act is qualified, i.e., creates, by its own terms,
exceptions to the confidentiality of juvenile court records.").

To be sure, what these opinions have characterized as
"privileges" are not necessarily privileges within the
meaning of Rule 501. It is clear, however, that the
Commonwealth does recognize a series of rights, variously
defined, to withhold relevant evidence from judicial
proceedings on the basis of the confidentiality provisions
_________________________________________________________________

12. This court, following Moyer, has reached a similar conclusion with
respect to Pennsylvania law. See Hahnemann Univ. Hosp. v. Edgar, 74
F.3d 456, 465 (3d Cir. 1996) (stating that the MHPA"presents an
absolute confidentiality privilege against the disclosure of documents
that `concern[ ] persons in treatment' ").

                               17
contained in the Pennsylvania statutes. Considerations of
comity require that we at least consider these "privileges,"
as well as the confidentiality interests otherwise protected
under the laws of the Commonwealth, although our
ultimate task remains the determination of the issue of
whether privileges associated with these statutes and the
confidentiality that they seek to protect are cognizable
under Federal Rule of Evidence 501.13

In sum, we must determine whether to recognize a
federal privilege that would allow the evidence here sought
to be kept from appellee, notwithstanding its relevance. We
are, in essence, to determine whether there are federal law
privileges that amount to parallels of the state law
privileges that appellants have argued would bar the
discovery here sought, had the present suit been brought in
the courts of the Commonwealth of Pennsylvania. Thus, we
are to determine, granting due respect to Pennsylvania's
protections, whether a privilege of the kind sought by
appellants "promotes sufficiently important interests to
outweigh the need for probative evidence," Trammel, 445
U.S. at 5, where the need for probative evidence is viewed
as a very weighty consideration indeed--to the extent that
only the strongest considerations on the other side of the
scale are capable of outweighing it.

b.

With that framework in place, we turn to the particular
privileges sought by appellants. As we discuss below, we
will decline to recognize any of the privileges under which
appellants have sought protection from discovery. Because
of the particular circumstances of this case, in which Mr.
_________________________________________________________________

13. This approach is consistent with that employed in Jaffee. The Court
there based its decision to recognize a psychotherapist-patient privilege
in part on the fact that all fifty states had done so. And while the
majority of the statutes cited in support of this proposition expressly
create such a privilege, not all of them do so. For example, the Rhode
Island statute cited, R.I. Gen. Laws. SS 5-37.3-3 and -4, speaks only of
confidentiality. Like the statutes at issue here, however, the Rhode
Island statute has been interpreted by its courts as creating a privilege.
See Lewis v. Roderick, 617 A.2d 119, 121 (R.I. 1992).

                               18
Miller has waived assertion of his confidentiality interests,
in order for appellants to be protected by such a privilege,
it would have to be a privilege of a very unusual sort--one
whose breadth and scope would appear to make it
particularly unsuited for recognition within the framework
of Rule 501. This conclusion is only strengthened by our
view, discussed in the next section, that a far more
appropriate mechanism exists for protecting the legitimate
interests at stake: namely, a Rule 26(c) protective order. In
light of the disfavor with which federal law looks upon new
privileges, these considerations are sufficient to provide a
basis for the rejection of appellants' proposed privileges.

Because Mr. Miller has effectively waived his
confidentiality interests, appellants have been forced to
invoke privileges directed entirely at interests other than
those of Mr. Miller.14 Thus, the question presented is not
whether there are evidentiary privileges protecting Mr.
Miller's interests under Rule 501, but whether federal law
is to recognize one or more privileges directed at the
interests of third parties whose interests may be affected by
the release of the information here in dispute. Because the
primary interests at stake--Mr. Miller's--have been taken
off of the table, the privileges sought by the appellants must
necessarily focus on the secondary interests at stake.

Once our inquiry is confined to the consideration of
potential privileges characterized in that way, it is clear that
appellants' requested privileges must be rejected. We
consider first appellants' invocation of the Mental Health
Procedures Act. It is settled under Pennsylvania law that
the MHPA gives rise to "an absolute confidentiality
privilege" covering documents related to the treatment of
mental health problems. Hahnemann, 74 F.3d at 465; see
also Moyer, 595 A.2d at 1180. That privilege, however, is
held by the patient, who is permitted to waive it and to
_________________________________________________________________

14. Appellants have suggested that the validity of the waiver signed by
Mr. Miller is in question. They point to nothing in the record, however,
that casts even the smallest amount of doubt on its authenticity. We
find, therefore, as a matter of law, that Mr. Miller has waived his rights
in the confidentiality of the materials here sought to the extent
permitted
by law.

                               19
allow the protected information to be released. See Sprague
v. Walter, 656 A.2d 890, 910-911 (Pa. Super. Ct. 1995)
(finding the MHPA privilege to have been waived by former
patient who had allowed records to become publicly
available). It follows that any privilege that would spring
from the MHPA in the present case would necessarily have
been waived by Mr. Miller's release.

Notably, federal law does recognize a privilege that would
seem to overlap the privilege under the MHPA: the
psychotherapist privilege. See Jaffee, 518 U.S. at 15. Again,
like that associated with the MHPA, the federal
psychotherapist privilege is owned by--and fully waivable
by--the patient. See id. at 15 n.14. Thus, any such
privilege could not provide the basis for the protection here
sought, because if such a privilege did protect any of the
information at issue, Mr. Miller would be deemed to have
effectively waived that protection.

The privileges associated with the Child Protective
Services Law and Juvenile Act are not so readily
dismissible. For with respect to those statutes, protecting
third-party interests is undoubtedly an important
ingrediant of the confidentiality provisions. The CPSL's
confidentiality provision, for instance, is directed at the
confidentiality interests not only of the child, but also of
those who file child abuse reports, of those who work with
the child, and, perhaps, of the state agencies themselves.15
_________________________________________________________________

15. The Pennsylvania Superior Court has stated that:

       The confidentiality provisions of the CPSL have several clear
       functions in light of the statute's broad purposes: to encourage
       reporting of abuse by ensuring that persons with knowledge of
       abuse are not deterred from reporting it by the prospect of the
       abuser learning their identity and seeking retribution; to
facilitate
       the investigation of abuse by assuring potential witnesses that the
       information they provide to investigators will not be made public;
to
       facilitate the rehabilitation and treatment of abused children and
       their families by encouraging open, frank communications with
       agency personnel and treatment providers; to encourage the
effective
       operation of the child protective service by enabling it to keep
       complete and comprehensive files on all aspects of a family's
       circumstances without fear that information placed in such files
will

                               20
There is little question that many of these interests are of
very substantial weight. Indeed, it is difficult to overstate
the importance of a state's activities directed at the welfare
of children. And the prevention and detection of child abuse
are among the most compelling of these activities. The need
to protect the confidence of the children involved in these
programs and proceedings is crucial to their maximal
effectiveness. Additionally, the importance of protecting
those who file child abuse reports is clear. It is essential
that people be encouraged to make such reports, and
confidentiality is a valuable tool to that end."Recognizing
this, the Commonwealth--like all other States--has made a
commendable effort to assure victims and witnesses that
they may speak to the CYS counselors without fear of
general disclosure." Ritchie, 480 U.S. at 60-61; see also
Farley, 952 F. Supp. at 1240 ("Without question, the
investigation and resolution of incidents of child abuse is
one of the most important regulatory objectives that a state
may undertake.").

Thus, in addition to the interests of the child, it is evident
that a large number of persons have significant interests in
maintaining the confidentiality of the kinds of records here
sought. If we were to recognize a privilege that protected all
of the interests at which the confidentiality provisions of the
Pennsylvania statutes are directed, Mr. Miller's waiver
would not be adequate to waive the privilege in its entirety.

However, the same factor that would allow these
privileges to survive Mr. Miller's waiver--the number and
variety of interests that appellants would have us hold to be
a basis for such privileges--makes them poor candidates
for the protection of a Rule 501 privilege. Initially, we note
that such a privilege would be unlike any currently
recognized Rule 501 privilege. As a general matter,
_________________________________________________________________

         be subject to scrutiny by persons not involved in the process of
         rehabilitating the family; and to prevent the innocent victims of
         abuse from also becoming victims of public stigma by guarding
         information about the intimate details of their lives from the
prying
         eyes of outsiders.

V.B.T., 705 A.2d 1325, 1335-36.

                                  21
privileges are ordinarily found in bilateral confidential
relations: attorney-client, husband-wife, clergy-
communicator, reporter-source, government-informer. And,
of course, the privilege most recently recognized by the
Supreme Court, the psychotherapist-patient privilege
recognized in Jaffee, fits this standard schema.

There is good reason for favoring relatively uncomplicated
confidential relationships in assessing candidates for the
application of evidentiary privileges as contemplated by
Rule 501. Complex multilateral privileges such as the ones
here sought would necessarily be extremely broad and
unwieldy to enforce. We might, for instance, recognize such
a privilege held by all of those with significant interests in
confidentiality. Presumably, however, it would follow that
the privilege could not be waived without the consent of all
the potentially vast number of "holders" of the privilege.
Such a privilege would essentially be unwaivable. Indeed, it
is far from clear that such a protection would appropriately
be labeled a "privilege," in the sense employed in Rule 501,
at all. Cf. Jaffee, 518 U.S. at 15 n.14 ("Like other
testimonial privileges, the patient may of course waive the
protection.").

We might, on the other hand, view such a privilege as
held by the state on behalf of all of those who have
interests in confidentiality under the statutes. While such a
solution would have certain practical advantages over the
"privilege" just described, it would remain a poor fit for the
framework of Rule 501. First of all, by placing the power to
assert or waive the privilege in the hands of the
government, the value of the privilege in promoting
unhindered communication would be undermined. Because
those who would benefit from the privilege would lack the
power to control its application, they would be less able to
rely on its protection when deciding whether to provide
sensitive information. "An uncertain privilege . . . is little
better than no privilege at all." Jaffee, 518 U.S. at 18
(quoting Upjohn v. United States, 449 U.S. 383, 393 (1981));
see also In re Grand Jury, 103 F.3d at 1153-54 (noting the
problems that would be created in allowing a parent to
assert or waive a privilege created to protect the interests of
a child). To the extent that the value of a privilege is thus

                               22
weakened, it is that much less able to overcome the value
of promoting the availability of probative evidence. 16

Furthermore, the variety--both in kind and in magnitude
--of the interests at stake calls for a more flexible approach
than that possible with a Rule 501 privilege. For such a
privilege would effectively grant to the state--or, more
precisely, to a congeries of state and municipal agencies--
the power to withhold, or make available, an entire class of
documents regardless of the particular complexities of the
case. The resolution of discovery disputes of the sort
presented in the case at bar would be best served by an
approach that allowed the potentially wide variety of
interests at stake to be incorporated into a solution
balancing the need to protect sensitive information with the
need to make relevant material available. Because the
interests on both sides have the potential to be so very
significant, it is especially important to define the scope of
the release of information very carefully. And it seems
unreasonable to expect that a government agency, in the
midst of litigation, would be best placed to determine
whether and to what extent sensitive information should be
released. In short, a Rule 501 evidentiary privilege held by
the government would be an unacceptably imprecise tool
for the protection of a broad and varied landscape of
interests. And given the fact that, as we discuss in the next
subsection, a more precise and better located tool is
available for that purpose, there is little reason to adopt
such a problematic device.
_________________________________________________________________

16. We note that while separation of the privilege holder from the
interested party substantially undermines the value of the privilege, such
a separation is not always fatal to a privilege's recognition. The
informer's privilege, for instance, is designed in large part to protect
the
privacy interests of the informer. It is held, however, by the government,
which may freely waive it notwithstanding the desires of the informer.
See Roviaro v. United States, 353 U.S. 53, 59 (1957) ("What is usually
referred to as the informer's privilege is in reality the Government's
privilege to withhold from disclosure the identity of persons who furnish
information of violations of law to officers charged with enforcement of
that law."). Once the government reveals the identity of the informer, the
privilege is waived. Id. at 60. Because of the inherent difficulties with
such bifurcated privileges, however, they are very rare indeed.

                               23
In sum, we find that Rule 501 is unsuited for the kind of
privilege that appellants have requested: one that maintains
its protection despite the express waiver of the primary
holder of interests in confidentiality. Given the caution with
which federal courts are to approach all questions of novel
privileges, we have little trouble rejecting any such
privilege.

c.

Our rejection of appellants' requested privilege under
Federal Rule of Evidence 501 should not be taken to
amount to a determination that the unhindered release of
the information here in dispute is appropriate. On the
contrary, district courts have the power, under Federal Rule
of Civil Procedure 26(c), to issue protective orders
constraining--in any of a variety of ways--the release of
sensitive information. Given the potential weight of the
considerations in favor of confidentiality of the information
here in dispute, the present case is a good candidate for a
thorough and conscientious assessment of the various
considerations for and against confidentiality.

Rule 26(c) empowers the court to issue protective orders
"which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden
or expense." Legitimate interests in privacy are among the
proper subjects of this provision's protection."It is
appropriate for courts to order confidentiality to prevent the
infliction of unnecessary or serious pain on parties who the
court reasonably finds are entitled to such protection."
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir.
1994). Such an order is only appropriate, however, where
the party seeking the order "show[s] good cause by
demonstrating a particular need for protection." Id. To
make a showing of good cause, the party seeking
confidentiality has the burden of showing the injury "with
specificity." Publicker Indus., Inc. v. Cohen, 733 F.2d 1059,
1071 (3d Cir. 1984). The injury shown, however, need be no
more than "embarrassment"; thus, a party need not
establish a monetizable injury. See Cipollone v. Liggett
Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). Further, in
appropriate circumstances, a district court is empowered to

                               24
issue umbrella protective orders protecting classes of
documents after a threshold showing by the party seeking
protection. See id. at 1122.

Rule 26(c) further provides that such orders may be
crafted to create any of a broad range of requirements,
including

       (1) that the disclosure or discovery not be had; (2) that
       the disclosure or discovery may be had only on
       specified terms and conditions, including a designation
       of time or place; (3) that the discovery may be had only
       by a method of discovery other than that selected by
       the party seeking discovery; (4) that certain matters not
       be inquired into, or that the scope of the disclosure or
       discovery be limited to certain matters; [and] (5) that
       discovery be conducted with no one present except
       persons designated by the court . . . .

Thus, Rule 26(c) provides district courts with the power
to formulate a detailed solution that reflects the concerns of
particular individual disputes. To that extent, it provides a
superior mechanism for the resolution of the present
dispute than does Federal Rule of Evidence 501.

The District Court order appealed from in this case
contains some restrictions of the kind authorized by Rule
26(c). In particular, the District Court ordered that certain
identifying characteristics be redacted from certainfiles,
that certain files not be viewed by plaintiff 's attorneys, and
that all documents received by plaintiff be kept confidential.
See supra, note 5. It is clear from the language of that
order, however, that it represents an attempt to permit
discovery to the extent possible consistent with the District
Court's view of the restrictions created by the Pennsylvania
statutes.17 A more apt approach to the resolution of this
dispute would focus less on the letter of the Pennsylvania
statutes than on an accommodation of plaintiff 's legitimate
discovery interests with the legitimate interests of third
_________________________________________________________________

17. One of the three restrictions imposed by the District Court begins,
"In accordance with section 6307(2) of the Juvenile Act," and another
purports to be imposed "[p]ursuant to 55 Pa. Code S 3680.35(b)(5)." See
supra, note 5.

                               25
parties in the confidentiality of portions of the requested
material.

The flexibility of Rule 26 also allows the court to take into
account the particular needs of the parties at the present
stage of litigation, a consideration that we view as
appropriate in this case. We note that the needs of
appellant at this stage are relatively modest. As counsel for
Ms. Pearson acknowledged at oral argument, her attorneys
are simply interested in developing her case, and would not
object to an order that, for instance, prevented anyone
other than counsel from viewing or learning the contents of
any of the material sought. Such a restriction seems
entirely sensible at this point, since any restrictions that
would (a) further legitimate interests in confidentiality, but
(b) would not interfere with appellee's needs at this early
stage, would be appropriate. Indeed, in view of the
considerable significance of the interests in confidentiality
here at stake, it would appear proper for the District Court
to permit no greater release of the information sought by
appellee than is absolutely necessary for the particular
purposes for which it is sought. The parties may later seek
to modify the order as appropriate at a later stage. See
Pansy, 23 F.3d at 784 ("It is well-established that a district
court retains the power to modify or lift confidentiality
orders that it has entered.").

Accordingly, we reject appellants' request for the federal
recognition of one or more evidentiary privileges derived
from the Pennsylvania confidentiality provisions under
which appellants have sought protection from discovery. We
will vacate the order of the District Court, however, for
reconsideration of the present discovery dispute in the light
of this opinion. Because the District Court placed
conditions upon discovery pursuant to inapplicable
Pennsylvania law, we will direct the District Court to modify
its discovery order to remove any conditions that were
imposed solely to conform to state law. At that time, the
District Court should entertain requests for protective
orders under Federal Rule of Civil Procedure 26(c) and
impose such restrictions upon discovery as it deems
appropriate.

                               26
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               27
