                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-4198


KIM KINDER,

                 Appellant,

           v.

MICHAEL L. WHITE,

                 Defendant – Appellee,

           and

UNITED STATES OF AMERICA,

                 Plaintiff.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Thomas E. Johnston,
District Judge. (2:12-cr-00221-1)


Argued:   October 30, 2013                  Decided:   April 22, 2015


Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.
RUSSELL, III, United States District Judge for the District of
Maryland, sitting by designation.


Reversed by unpublished opinion. Chief Judge Traxler wrote the
majority opinion, in which Judge Russell joined.    Judge Wynn
wrote a dissenting opinion.


ARGUED: Jonathan D.       Byrne, OFFICE OF THE FEDERAL        PUBLIC
DEFENDER, Charleston,     West Virginia, for Appellant.        James
McCall Cagle, Charleston, West Virginia, for Appellee.  ON
BRIEF: Mary Lou Newberger, Federal Public Defender, Lex A.
Coleman, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL   PUBLIC DEFENDER, Charleston,  West Virginia, for
Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
TRAXLER, Chief Judge:

     Kim Kinder was the government’s primary witness at trial

against     Michael      White,       who    was     charged     with        arson-related

offenses    arising      from    an    October       2009     fire    that       destroyed    a

duplex     apartment      building          that     White     owned      in      Van,     West

Virginia.       See United States v. White, 771 F.3d 225 (4th Cir.

2014).     The district court granted White’s pretrial motion for

production      of    Kinder’s    mental       health       records     for      use     during

cross-examination, rejecting the argument that the records were

protected       from     disclosure          by      the      psychotherapist-patient

privilege.      See Jaffee v. Redmond, 518 U.S. 1, 15 (1996).                                We

conclude that the district court’s order of disclosure was in

error.     To the extent the district court has retained any of

Kinder’s mental health records, the court is required to return

or destroy them.

                                             I.

     Shortly         before   White     was        indicted    for     conspiring          with

Kinder    and   Kinder’s        husband      to    burn     White’s     duplex      for     the

insurance       proceeds,        Kinder       pled     guilty        to      a     one-count

information      charging       her   with        conspiracy    to     commit      arson     in

violation of 18 U.S.C. § 844(i).                     In response to the district

court’s    questions      during       the    plea     hearing,        Kinder      told     the

court that she was taking numerous medications, including anti-

depressants, anti-anxiety drugs, and muscle relaxers.                                    Kinder

                                              3
also       revealed       to    the      court    she        had     received,         within       the

preceding ten years, extensive psychiatric treatment.                                          Kinder

claimed that she had been diagnosed with bipolar disorder and

schizophrenia.             Kinder        also    explained          that    during       that       time

period,       she    was       admitted—at        least       once        involuntarily—as           an

inpatient to four different hospital mental health units; the

most       recent    of    these       mental     health       admissions          had       occurred

approximately one year before the plea hearing.

       Based on the information revealed by Kinder to the judge

during her plea hearing, White filed a pre-trial motion under

Criminal       Rule       17(c)       seeking     “early       production”         of        Kinder’s

medical records maintained by each of the four hospitals where

Kinder received inpatient treatment.                          Specifically, White wanted

each hospital to produce any document “relate[d] to Kim Kinder’s

psychiatric         history,       diagnosis,          treatment          and   drug     usage       and

abuse.”       J.A. 18.          In support, White relied on a West Virginia

statute permitting access to confidential mental health records

if     a    court     determines          the     relevance          of     such       information

“outweigh[s]          the         importance            of         maintaining           .      .      .

confidentiality.”               W. Va. Code § 27-3-1(b)(3).                      The government

opposed      production          of    such     documents,          arguing      that        Kinder’s

mental      health    records          were     protected          from    disclosure         by    the

therapist-patient privilege recognized by the Supreme Court in

Jaffee.         See       518     U.S.    at     15.         Without        objection,        Kinder

                                                  4
intervened in the motion and filed an objection through counsel,

adopting the government’s argument with regard to privilege and

noting         further         that     White     did        not     need      the   records        for

impeachment purposes since her mental health history was already

a   matter        of      public       record     in     the       transcripts       of     her    plea

colloquy.            Kinder also appeared at the hearing on White’s pre-

trial          motion       and       expressly        invoked          the     therapist-patient

privilege. 1              The district court, relying on the West Virginia

statute, found “that the requested documents [were] sufficiently

relevant         .   .     .   to     warrant     in     camera         review,”     J.A.     91,    to

determine            if     White’s          evidentiary           need       “outweigh[ed]          the

importance           of    maintaining         [Kinder’s]          confidentiality,”          W.     Va.

Code       §    27-3-1(b)(3).                Thus,     the     district         court      entered    a

preliminary            order       directing      each       of     the       four   hospitals       to

produce Kinder’s mental health records to the district court

alone for an in camera determination of admissibility.

       After conducting its in camera review, the district court

determined that to the extent the hospital records revealed any

communications              from      Kinder    to,      or       any     diagnoses        from,     her

psychiatrists,              they      fell    within      the       scope      of    the    patient-




       1
       The parties agreed below that Kinder did not “waive[] her
privilege by responding to the [district court’s] questions at
the plea hearing.” J.A. 109.



                                                     5
therapist privilege. 2               The district court then “turn[ed] to the

question         of    whether       the    privilege     may       be     overcome       by   the

assertion of [White’s] constitutional right to the confidential

materials.”            J.A.     111.        Observing     that       the    psychotherapist-

patient privilege recognized in Jaffee is not absolute, see 518

U.S.       at    18    n.19,    the    district     court          concluded      that     “[t]he

psychotherapist-patient                privilege        contemplates             an    exception

where           necessary       to      vindicate         a        criminal           defendant’s

constitutional rights.”                 J.A. 119.         And, having concluded such

an    exception            exists,    the    district     court       considered         whether

Kinder’s privacy rights protected by the privilege should give

way    either         to    White’s    Sixth    Amendment           right    to       effectively

confront         the       witnesses    against     him       or    to     his    right    to   a

fundamentally fair trial under the Due Process Clause of the

Fifth Amendment.              Although the district court decided that White

       2
        The district court also concluded that there were
“significant portions” of Kinder’s records that did not come
within the scope of the therapist-patient privilege. J.A. 109.
For example, the district court determined that the privilege
did not protect any information provided by Kinder to emergency
room “triage” staff during the admitting process regarding her
mental health history or the particular reason for her visit.
J.A. 110.   Nonetheless, the district court did not order the
disclosure of such records, finding that Kinder’s “self-reported
mental health history” during these “triage assessments” was
largely “identical to the history provided publicly” during her
plea hearing and therefore cumulative. J.A. 110. Accordingly,
we need not address whether information passed along for
purposes of a “triage assessment” would fall within the
privilege.



                                                6
was not entitled to Kinder’s mental health records in order to

vindicate his rights under the Confrontation Clause, the court

concluded         that    White    could    obtain         the    records     under    the   Due

Process Clause.            The court reasoned that because Kinder was the

“central government witness against [White] and the . . . case

may well hinge on her credibility,” J.A. 123, White’s right to a

fundamentally fair trial entitled him to disclosure of mental

health        records       that         were      otherwise           protected       by    the

psychotherapist-patient                 privilege.          Accordingly,       the    district

court ordered the disclosure under seal of specified documents

that       “cast[]       substantial       doubt      on    [Kinder’s]        mental    acuity

during      the    time    of     the    purported         conspiracy,”       J.A.    124,   and

raised      questions       about       Kinder’s      state       of   mind   when     she   was

testifying         before       the     grand   jury        and    cooperating        with   the

government’s investigation of White. 3

                                                II.

       Kinder argues that in deciding whether her mental health

records were protected from disclosure by the psychotherapist-

patient privilege, the district court engaged in the type of

       3
       The district court indicated that “[w]ith the exception of
the limited disclosures the Court makes herein, these documents
will not be placed in the record unless a higher court orders
otherwise. The select documents the Court deems subject to
disclosure are provided under seal to provide limited access to
the parties to this case only, not the public at large.”     J.A.
125.



                                                 7
balancing analysis expressly rejected by the Supreme Court in

Jaffee.       We    review    a   district        court’s        “evidentiary       rulings,

including rulings on privilege, for abuse of discretion,” but we

review “factual findings as to whether a privilege applies for

clear error, and the application of legal principles de novo.”

United States v. Hamilton, 701 F.3d 404, 407 (4th Cir. 2012).

By    definition,     an     abuse    of    discretion           occurs    if    the   court

commits “[a]n error of law.”                United States v. Basham, 561 F.3d

302, 326 (4th Cir. 2009).             We agree with Kinder that the court’s

use    of    the   balancing      approach        was   erroneous          and   that     its

decision to disclose Kinder’s mental health records therefore

amounted to an abuse of discretion.

                                            A.

       Under Federal Rule of Evidence 501, matters of privilege in

federal courts are to be resolved based on the common law “as

interpreted by United States courts in the light of reason and

experience”        unless    it      is    contrary         to    the     “United      States

Constitution,” a “federal statute,” or the “rules prescribed by

the Supreme Court.”            In Jaffee, the Supreme Court resolved a

circuit split when it “recognize[d] a psychotherapist privilege

under Rule 501” in the context of a § 1983 excessive force

action.       518 U.S. at 7.              The Court concluded that a social

worker’s notes from her counseling sessions with the defendant

police      officer   were    protected          by   the    psychotherapist-patient

                                             8
privilege from disclosure to the plaintiff for use in cross-

examination.          The    Supreme       Court        reasoned     that        “[e]ffective

psychotherapy . . . depends upon an atmosphere of confidence and

trust”    and   that        “the    mere      possibility           of    disclosure”           of

“confidential     communications           made     during       counseling            sessions”

could hinder productive therapy.                    Id. at 10.             “By protecting

confidential    communications          between         a    psychotherapist            and    her

patient from involuntary disclosure, the . . . privilege thus

serves    important         private     interests.”              Id.     at       11.         Most

importantly,      the       Court     found       that,      like    other        testimonial

privileges,     the     psychotherapist           privilege         serves       the     greater

public interest by facilitating effective mental health care –

“a public good of transcendent importance.”                              Id. 4     The Court

concluded       that         a      “privilege              protecting           confidential

communications        between       a    psychotherapist             and         her     patient

‘promotes sufficiently important interests to outweigh the need

for   probative    evidence.’”             Id.     at     9–10   (quoting         Trammel       v.

United States, 445 U.S. 40, 51 (1980)).                          In other words, the

public      benefit         produced       by       the        recognition              of    the

      4
       The Supreme Court explained that “[t]he psychotherapist
privilege serves the public interest by facilitating the
provision of appropriate treatment for individuals suffering the
effects of a mental or emotional problem. The mental health of
our citizenry, no less than its physical health, is a public
good of transcendent importance.”   Jaffee v. Redmond, 518 U.S.
1, 11 (1996).



                                              9
psychotherapist-patient              privilege       is    sufficiently         weighty     to

trump the cost to the administration of justice of precluding

the use of relevant evidence.

      Of     course,      like         other        testimonial        privileges,         the

psychotherapist-patient privilege is not absolute.                               The Court

recognized       that     the        privilege       has      limits      but    left      the

delineation of boundaries for future cases:                          “Although it would

be premature to speculate about most future developments in the

federal psychotherapist privilege, we do not doubt that there

are situations in which the privilege must give way.”                            Id. at 18

n.19.      The   Court    hinted       at    one     potential       exception—where        “a

serious    threat   of        harm    to    the     patient    or    to     others   can    be

averted only by means of a disclosure by the therapist.”                                   Id.

Circuit courts, however, have disagreed over when a “dangerous

patient” exception to the privilege would apply, if at all.                                See

United States v. Glass, 133 F.3d 1356, 1360 (10th Cir. 1998)

(applying the Jaffee rule in a criminal case, and creating a

narrow exception to the rule where “disclosure [is] the only

means of averting [imminent] harm”); cf. United States v. Chase,

340   F.3d   978,       992    (9th     Cir.      2003)    (en      banc)    (refusing      to

recognize a dangerous-patient exception to the Jaffee rule).

                                               B.

        In ordering the partial disclosure of Kinder’s psychiatric

records, the district court concluded that an exception to the

                                               10
psychotherapist-patient       privilege     must     be    made      “where    [the

privileged    information    is]    necessary   to    vindicate       a   criminal

defendant’s   constitutional       rights.”     J.A.      119.    And     in   this

particular case, the district court decided that because Kinder

was the star witness for the prosecution, it was necessary for

White to have this otherwise privileged evidence for impeachment

purposes in order to fully exercise his Fifth Amendment right to

a fundamentally fair trial.

     In our view, this conclusion is demonstrably at odds with

both Jaffee and basic principles underlying the recognition of

testimonial privileges.           All common law testimonial privileges

are inherently “in derogation of the search for truth,” United

States v. Nixon, 418 U.S. 683, 710 (1974); that is, privileges

constitute exceptions to the baseline rule “that the public . .

. has a right to every man’s evidence.”            United States v. Bryan,

339 U.S. 323, 331 (1950) (internal quotation marks omitted).

“New or expanded privileges may be recognized only to the very

limited extent that permitting a refusal to testify or excluding

relevant evidence has a public good transcending the normally

predominant    principle     of     utilizing   all       rational     means    for

ascertaining truth.”        United States v. Sterling, 724 F.3d 482,

502 (4th Cir. 2013) (internal quotation marks omitted) (emphasis

added).   Thus, a privilege must “serve[] public ends,” Upjohn

Co. v. United States, 449 U.S. 383, 389 (1981), that are more

                                       11
important     than    the    effect       of    denying       the    public           the    use    of

relevant,     probative         evidence.           Accordingly,           when        the       Court

recognizes or expands a privilege under Rule 501, it necessarily

has already determined that the privilege in question “promotes

sufficiently       important        interests          to     outweigh          the     need       for

probative evidence.”              University of Pennsylvania v. EEOC, 493

U.S. 182, 189 (1990) (internal quotation marks omitted).

      Jaffee applied this reasoning, holding that a “privilege

protecting confidential communications between a psychotherapist

and   her   patient    promotes          sufficiently          important          interests         to

outweigh     the   need     for    probative          evidence.”          518    U.S.       at    9–10

(internal     quotation      marks        omitted)       (emphasis          added).              Thus,

before      recognizing         the      existence           of     the      psychotherapist

privilege     under   Rule        501,    the    Supreme          Court    in     Jaffee         first

compared     the     interests        promoted         by     the     privilege             against

interests     promoted       by    the    general           rule    that        the    public       is

entitled     to     “every        man’s      evidence.”              But        now     that       the

psychotherapist privilege has been recognized, it would be both

counterproductive         and     unnecessary          for     a    court        to    weigh       the

opponent’s        evidentiary         need      for     disclosure              any    time        the

privilege is invoked.             Indeed, Jaffee explicitly rejects such an

ad hoc balancing approach because it would frustrate the aim of

the privilege by making its application uncertain:                                    “Making the

promise of confidentiality contingent upon a trial judge’s later

                                               12
evaluation of the relative importance of the patient’s interest

in     privacy     and     the    evidentiary      need       for      disclosure        would

eviscerate        the    effectiveness       of   the   privilege.”              Id.     at    17

(emphasis added).

       Here, the district court appears to have employed precisely

such    a    weighing      of    Kinder’s    privacy     interest         versus       White’s

evidentiary        need.         White’s    motion      for       disclosure       was     made

pursuant to a West Virginia statute that allows for disclosure

of privileged medical information if the court finds that “the

information        is    sufficiently       relevant     .    .    .     to    outweigh       the

importance of maintaining the confidentiality.”                               W. Va. Code §

27-3-1(b)(3).           The district court’s preliminary order directing

production of the records for in camera review relied expressly

on the West Virginia statute.                The district court’s final order

of disclosure, while acknowledging Jaffe’s “ardent[] reject[ion

of] this context-specific, ad hoc approach to the applicability

of     the    privilege,”         J.A.     111,   ordered          the        disclosure      of

privileged mental health records based on the “perfect storm of

facts” before it, including most significantly White’s need to

challenge the credibility of “the central government witness,”

J.A. 123.         Such an analysis runs contrary to Jaffee, which made

clear       the   federal       psychotherapist-patient             privilege       “is       not

rooted in any constitutional right of privacy but in a public

good    which      overrides      the    quest    for     relevant            evidence;       the

                                             13
privilege is not subject to a balancing component.”                     Glass, 133

F.3d at 1358 (internal quotation marks omitted).

       We find no basis in the record to justify disclosure of

Kinder’s records that fall within the protective scope of the

psychotherapist privilege.               Accordingly, we conclude that the

district court’s order of disclosure was in error.                      We reverse

the    court’s    ruling     and    direct        that   Kinder’s    mental    health

records, to the extent the district court has retained copies

thereof, be returned to the hospitals that produced the records

or be destroyed.

                                           III.

       Regarding the issue of waiver, given the novelty of this

area of the law and the fact that it has never been pursued—not

in    this   court    on   appeal     or    in    the    district   court     below—we

decline to address it.             In fact, in the proceedings before the

district     court,    White’s      counsel       expressly   told    the     district

court    that    White     did     not     take    the   position    that     Kinder’s

statements at her Rule 11 hearing constituted a waiver of the

privilege:

       THE COURT:    Are you saying that anything that you
       learned through her statements in her plea hearing,
       you should be allowed to cross-examine her on?

       [WHITE’S COUNSEL]:        Yes, sir, I do.

       THE COURT: All right. But you’re not saying that she
       waives the privilege and, therefore, you get access to



                                            14
       the records       because     of   what    she     said    in   the    plea
       hearing?

       [WHITE’S COUNSEL]:   No.   What I’m saying is that’s
       what I understand this hearing to be about, that
       whether or not this defendant, in connection with his
       right of confrontation, is allowed to review those
       notes made as they pertain to a diagnosis and
       treatment.

       THE COURT:     Well, I don’t think you answered                         my
       question there and I want to be very clear on this.

       [WHITE’S COUNSEL]: Okay.

       THE COURT: . . . [T]he purpose of this hearing is much
       broader than that.   I want to have a full discussion
       of this whole issue, but . . . my specific question
       there was, are you arguing that because she disclosed
       a small amount of information at the plea hearing . .
       . that she has, therefore, waived the privilege with
       regard to all these records?

       [WHITE’S COUNSEL]:          No, I’m not.        I don’t say that.

J.A.    49      (emphasis      added).           Hence,     the    district      court

specifically noted in its order that whether Kinder waived her

privilege was a non-issue, as “both parties to this case agree

that Kinder has not waived her privilege by responding to the

Court’s questions at the plea hearing.”                  J.A. 109.

       Absent unusual circumstances, this court does not address

arguments on appeal that were not raised in the district court.

See Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th

Cir. 1999); see also Crawford Prof’l Drugs, Inc. v. CVS Caremark

Corp., 748 F.3d 249, 267 (5th Cir. 2014) (“The general rule of

this    court    is   that    arguments    not    raised    before      the   district

court    are    waived       and   will   not     be    considered      on    appeal.”

                                          15
(internal quotation marks omitted)).                      And here we are presented

with an even more compelling basis not to address the issue of

waiver than White’s failure to argue it below—White’s contrary

assertion to the district court disavowing any reliance on a

waiver theory.

      On top of that, White has not even argued on appeal that

this court should affirm on the basis of waiver.                         White does not

mention waiver in his brief, except to muse in passing that the

district court “could have properly found” that Kinder waived

the privilege, Brief of Appellee at 11 (emphasis added), even

though White took the opposite position below.                           This fleeting

mention of waiver in a single sentence couched in conditional

terms is not an argument—it’s an observation.                            It is not the

practice of this court to consider an argument that has not been

developed in the body of a party’s brief or identified in the

headings.        See Eriline Co. S.A. v. Johnson, 440 F.3d 648, 653

n.7     (4th     Cir.    2006)      (single          “conclusory     remark”     in    brief

“insufficient” to constitute an argument); see also Reynolds v.

Wagner,       128     F.3d   166,    178    (3d        Cir.    1997)   (“[A]n     argument

consisting of no more than a conclusory assertion . . . will be

deemed waived.”).            “[A] party’s failure to raise or discuss an

issue    in     his    brief   is    to    be    deemed       an   abandonment    of    that

issue.”        Hatley v. Lockhart, 990 F.2d 1070, 1073 (8th Cir. 1993)

(internal quotation marks omitted)).

                                                16
     We recognize that, in limited circumstances, this court may

affirm a district court’s ruling on “any theory, argument, or

contention which is supported by the record.”                    Blackwelder v.

Millman, 522 F.2d 766, 771 (4th Cir. 1975) (internal quotation

marks   omitted).      The   court      does   not   follow     this    practice,

however, when doing so “unfairly prejudice[s] the appellant in

[the] presentation of his case.”               United States v. Gould, 741

F.2d 45, 50 n.5 (4th Cir. 1984).               Even if White were actually

urging us to consider a waiver theory—which he is not—affirming

on the basis of waiver in this case would be highly prejudicial

to Kinder.      In light of White’s representation to the district

court that “Kinder has not waived her privilege by responding to

the Court’s questions at the plea hearing” and his subsequent

choice not to brief the issue of waiver on appeal, Kinder had

absolutely no reason to develop an argument on appeal that her

answers    to   the   court’s     questions     during    her    plea     colloquy

constituted     a   waiver   of   the    privilege    with      respect    to   her

records.

     In sum, it would be most unusual for this court to address

sua sponte a non-jurisdictional issue rejected by both parties

below and not argued or briefed on appeal.               But, even if we were

to reach the merits, we would have serious doubts that answers




                                        17
given by a defendant to a judge’s questions during a Rule 11

colloquy would amount to a voluntary waiver.

                                                    REVERSED




                               18
WYNN, Circuit Judge, dissenting:

      Kim Kinder and Michael White conspired to commit arson.

Kinder cooperated with the government, and the government, in

turn, charged Kinder with only one arson-related offense, to

which she pled guilty.             The government then agreed to argue for

a reduced sentence for Kinder.

      At    her   plea    hearing,       Kinder      testified      at   length   and    in

detail about her mental health diagnoses, hospitalizations, and

treatments.       Kinder’s testimony went well above and beyond what

the district court asked.            And not once during her testimony did

Kinder,     or    her    counsel    on    her     behalf,       raise    the   issue     of

privilege.

      Ultimately,        Kinder     served      as    the    star    witness      in    the

government’s case against White, who was charged with several

arson-related offenses.             As part of his defense, White sought

Kinder’s mental health records from hospitalizations he learned

about at Kinder’s plea hearing in open court.                            Yet, unlike in

her   own    proceeding,      in     White’s         criminal     proceeding,      Kinder

asserted the psychotherapist-patient privilege in an attempt to

block White’s counsel from gaining access to records related

directly to her plea hearing testimony.

      By liberally discussing her mental health issues in her

extensive     open-court     testimony       in      her    own   proceeding,      Kinder

waived her psychotherapist-patient privilege as to the limited

                                           19
and directly-related records that the district court released in

White’s case.      Accordingly, because I agree with the district

court’s grant of White’s motion for early production of records,

I respectfully dissent.



                                     I.

      White, a West Virginia businessman, owned a two-unit duplex

near Van, West Virginia.       In 2009, White experienced financial

difficulties.     Among them, White was no longer receiving income

from his duplex:     His tenants no longer paid their rent.

      White    “express[ed]   this   frustration   to   Kim   Kinder,   an

across-the-street neighbor with whom White was carrying on an

affair.”      United States v. White, 771 F.3d 225, 228 (4th Cir.

2014).     “White purchased a fire-insurance policy” that “provided

$80,000 coverage for the duplex and $20,000 for its contents.”

Id.     He then asked Kinder and her husband “to burn it down as

soon as possible.”      Id.   White gave the Kinders some money and

told them that he had evicted the tenants.         On October 16, 2009,

after a couple of trips to the duplex, the Kinders set it on

fire.

      White recovered the full proceeds on the insurance policy

he had taken on the duplex, plus an additional amount for major

appliances.     And he ultimately paid about $2000 to the Kinders.



                                     20
       In June 2010, West Virginia police contacted Kinder.                                 After

initially denying involvement in the arson, Kinder confessed and

agreed    to     cooperate       with       the     authorities.          Kinder      made    “a

recorded telephone call to White in which they discussed the

fire and White’s payment of money to the Kinders.                                 During the

call, Kinder made statements suggesting White’s involvement in

the arson which White did not deny.”                         Id.

       Kinder ultimately pled guilty to one count of conspiracy to

commit     arson     in     violation          of       18     U.S.C.    § 844(i).           The

government, in turn, “agree[d] to file a motion in Ms. Kinder’s

case    requesting        the    Court      reduce       her       sentence   based    on     the

substantial assistance she has already provided in the criminal

investigation and prosecution of another.”                            Plea Agreement at 4,

United States v. Kinder, No. 2:12-cr-00114 (S.D. W. Va. Mar. 5,

2012).

       During her initial plea hearing, Kinder told the district

court    that     she     took     numerous          medications,         including         anti-

depressants, anti-anxiety drugs, and muscle relaxers.                                   Kinder

also revealed that she had been diagnosed with bipolar disorder

and    schizophrenia.            She    did       not    know,      however,   which        drugs

treated which conditions because her treatment providers “never

told     [her]     that     this       is    what       I     am    prescribing       you     for

schizophrenia.”            Tr.    of    Plea       Hr’g      at    12,   United   States       v.

Kinder, No. 2:12-cr-00114 (S.D. W. Va. June 19, 2012).

                                               21
     Kinder    detailed      her     extensive          psychiatric     issues     and

treatments well beyond what would have been necessary simply to

answer   the   district     court’s       questions.           She   explained,    for

example, that “it was just – just pretty much the way my life

has went for the past 26 years, is in and out of hospitals and

emergency rooms and what – because I didn’t know, they couldn’t

tell me what was wrong with me.                I was having panic attacks and

they were telling me I just had a little anxiety and send me

home . . . .”       Id. at 11.           Kinder also reported that she had

repeatedly attempted suicide.

     Kinder detailed her voluntary and involuntary admissions to

the “psych wards” of four different hospitals, the most recent

admission occurring only about a year before the plea hearing.

Id. at 7.      She identified those hospitals as Logan Regional

Hospital,    St.   Mary’s    Hospital,         Thomas    Memorial     Hospital,    and

Highland    Hospital.       And    she    identified      at    least   one   of   her

treating physicians by name—Dr. Fink at St. Mary’s.                     Kinder also

shared, for example, that she felt her doctors did not “really

care[] enough to sit down and find out what was going on and

most . . . would just, you know, write me more drugs and send me

home.”   Id. at 13.




                                          22
      Not once during any of this did Kinder express privilege

concerns. 1    At no point during her extensive testimony did either

Kinder or her counsel, for example, seek a side bar or otherwise

raise the specter of the psychotherapist-patient privilege.                          And

“counsel for [White] was present in the public gallery during

the proceeding to hear this entire discussion.”                     J.A. 97-98.

      Based on the information revealed by Kinder during her plea

hearing, White filed a motion for early production of records in

his   own   criminal     proceeding.        He    sought       Kinder’s      treatment

records from each of the four hospitals Kinder identified at her

plea hearing.

      The     government     opposed    White’s      motion,          arguing        that

Kinder’s      records     were     protected      from     disclosure          by     the

psychotherapist-patient          privilege       recognized         in      Jaffee    v.

Redmond, 518 U.S. 1 (1996).             Kinder then intervened and also

objected to the motion.

      Initially,    the    district    court     found     “that      the    requested

documents     [were]    sufficiently    relevant     .     .    .    to   warrant      in

camera review.”         J.A. 91.    The district court therefore entered


      1
       On the contrary, Kinder suggested that she had repeatedly
shared the information with others before, lamenting that she
“should probably write these [details about her mental health
diagnoses and treatments] down     because people ask me a lot.”
Tr. of Plea Hr’g at 12, United States v. Kinder, No. 2:12-cr-
00114 (S.D. W. Va. June 19, 2012).



                                       23
a    preliminary     order    directing          each   of    the   four    hospitals      to

produce Kinder’s records solely to the court.

       After conducting its review, the district court determined

that to the extent the hospital records revealed communications

from Kinder to, or diagnoses from, her psychiatrists, they fell

within       the   scope     of    the     psychotherapist-patient               privilege.

Nevertheless,          observing          that        the     psychotherapist-patient

privilege recognized in Jaffee is not absolute, the district

court concluded that the privilege “contemplates an exception

where        necessary       to      vindicate          a     criminal          defendant’s

constitutional rights.”             J.A. 119.

       The district court found such an exception warranted in

this case, concluding that White should obtain Kinder’s records

under the Due Process Clause.                  The district court saw the matter

as    the     “perfect     storm     of     facts”       justifying        an    exception—

including      Kinder’s      role    as    a     co-conspirator,         Kinder’s      self-

interest in assisting the government (in the hope of reducing

her    own    sentence),     the     importance         of   Kinder’s      testimony      and

credibility to the government’s case against White, and Kinder’s

admission to various mental health diagnoses “that potentially

implicate      her     ability      to    accurately         perceive,      process,      and

relate information.”          J.A. 123.             Accordingly, the district court

granted      White’s     motion     for    early        production    of        records   and

ordered limited disclosure.

                                               24
     At his trial, 2 White used the disclosed records to cross-

examine Kinder.       But the district court ruled that the records

could not be introduced into evidence.               Ultimately, the jury

convicted     White   on    several    arson-related     counts,    and     the

district court sentenced him to concurrent 78–month terms of

imprisonment on each count.           White, 771 F.3d at 228-29.          White

appealed, and his case has been resolved.              Id.      Only Kinder’s

appeal of the district court’s records-related ruling is before

us now.



                                      II.

    Kinder argues that in deciding whether her mental health

records were protected from disclosure by the psychotherapist-

patient privilege, the district court engaged in the type of

balancing    analysis      the   Supreme    Court   expressly    rejected    in

Jaffee.     White counters that the district court properly applied

the distinguishable Jaffee, that the district court could have

deemed the privilege waived by Kinder’s discussing her mental

health treatment in open court, and that the district court also



    2
       The government dismissed its first indictment against
White and brought a second one because Kinder “contradicted the
facts she had provided earlier” as the government’s star witness
in its case against White. J.A. 98. The trial was based on the
second indictment.



                                       25
could have found that the records it released fell outside of

any privilege.

     On   appeal,       “[w]e    review     factual         findings    underlying    an

attorney-client privilege ruling for clear error, and we review

the application of legal principles de novo.”                         In re Grand Jury

Subpoena,    341    F.3d    331,   334    (4th       Cir.     2003).     Upon     careful

consideration,      I   must     agree    with       White:      Kinder    waived     her

privilege in the subject matter of the released records.

                                          A.

     As     an    initial    matter,      I     do    not     believe     that    waiver

precludes    us    from     reaching      the    privilege-waiver          issue.      I

“certainly        agree” that White “did not ‘pellucidly articulate

this theory’ below.”            Quicken Loans Inc. v. Alig, 737 F.3d 960,

964-65 (4th Cir. 2013) (quoting Harris Trust & Sav. Bank v.

Salomon Smith Barney, Inc., 530 U.S. 238, 245 n. 2 (2000)).

Nevertheless,      while    White     did      not     call     his    argument    below

waiver, it had the stuff of waiver—so much so that opposing

counsel recognized it as such and railed against it.                             J.A. 65

(stating that White’s counsel argued “that in as much as Ms.

Kinder has spoken about some of her history in court. . . there

may be some – a waiver or some way to think that there is no –

there in no expectation of privacy here” and arguing against the

same).    Further, on appeal, White contends that “the District

Court could have properly found that Ms. Kinder had waived any

                                          26
privilege she might have had in these records by talking about

her    hospitalizations      .   .   .    in    open   court,     thus   she    had   no

reasonable expectation of privacy after that point.”                      Appellee’s

Br. at 11.

       Moreover,      “‘we   review        judgments,       not    opinions’       and,

consequently, we are ‘entitled to affirm the district court on

any ground that would support the judgment in favor of the party

prevailing below.’”          Everett v. Pitt Cnty. Bd. of Educ., 678

F.3d    281,    291   (4th   Cir.    2012)       (quoting    Crosby      v.    City   of

Gastonia, 635 F.3d 634, 643 n. 10 (4th Cir. 2011)).                           Here, the

district       court’s   judgment        granted   White’s      motion    for     early

production of records.           Though I would grant the motion on a

different basis than that of the district court, the judgment—

granting White’s motion—would remain the same, and I therefore

would affirm.

        Accordingly, “under the facts and circumstances of this

case [I would] reach the [privilege-waiver] argument.”                          Quicken

Loans, 737 F.3d at 965.

                                           B.

       In 1996, with Jaffee, the Supreme Court resolved a circuit

split by “recogniz[ing] a psychotherapist privilege.”                          518 U.S.

at 7.    The Court concluded that a social worker’s notes from her

counseling sessions with a police officer who had been sued for

use of excessive force were protected from disclosure by the

                                           27
psychotherapist-patient privilege.                          The Supreme Court reasoned

that “[e]ffective psychotherapy . . . depends upon an atmosphere

of    confidence      and     trust”       and    that        “the    mere    possibility        of

disclosure”          of      “confidential             communications           made        during

counseling sessions” could hinder productive therapy.                                      Id. at

10.

       The     Supreme       Court      found         that,     like    other     testimonial

privileges,         the    psychotherapist            privilege        serves    the       greater

public interest by facilitating effective mental health care—“a

public       good    of     transcendent         importance.”            Id.         The    Court

concluded           that      a        “privilege             protecting         confidential

communications            between      a     psychotherapist            and      her       patient

‘promotes sufficiently important interests to outweigh the need

for    probative      evidence.’”             Id.      at     9–10    (quoting       Trammel     v.

United States, 445 U.S. 40, 51 (1980)).

       Nevertheless, because such privileges “‘impede[] the full

and    free    discovery          of   the    truth,’”         they    must     be     “narrowly

construed.’”           In    re     Grand     Jury      Subpoena,       341     F.3d       at   335

(quoting Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998).

They are thus “‘recognized only to the very limited extent that

excluding relevant evidence has a public good transcending the

normally predominant principle of utilizing all rational means

for ascertaining truth.’”               Id.



                                                 28
     Accordingly,     like       other    privileges,     the   psychotherapist-

patient privilege is not absolute.               The Supreme Court noted that

“[a]lthough it would be premature to speculate about most future

developments in the federal psychotherapist privilege, we do not

doubt that there are situations in which the privilege must give

way.”      Jaffee,   518     U.S.    at    18     n.19.      The     Supreme    Court

identified one such potential exception—where “a serious threat

of harm to the patient or to others can be averted only by means

of a disclosure by the therapist.”               Id.

     Finally, the Supreme Court recognized that a patient may

waive the psychotherapist-patient privilege.                       Id. at 15 n.14

(“Like other testimonial privileges, the patient may of course

waive the protection.”).           Thus, this Court later held that “[a]

patient    may   waive     the     psychotherapist-patient           privilege    by

knowingly and voluntarily relinquishing it.                  A waiver may occur

when the substance of therapy sessions is disclosed to unrelated

third parties, or when the privilege is not properly asserted

during testimony.”       United States v. Bolander, 722 F.3d 199, 223

(4th Cir.), cert. denied, 134 S. Ct. 549 (2013) (citations and

parentheticals omitted).

     In     Bolander,      the      patient        “failed      to     assert    the

psychotherapist patient privilege during his . . . deposition.

During    that   deposition,       [he]    was    asked   questions      about   his

participation in [a sex offender treatment program].                    He did not

                                          29
assert any privilege with respect to the information he provided

in    the     [program],      including      the    documents    generated      by     the

program.       Instead, [he] openly discussed his participation . . .

.”     722 F.3d at 223.              We held that “[b]y answering questions

without       asserting      the   psychotherapist         patient    privilege,     [the

patient] waived any privilege he may have enjoyed.”                      Id.

       Our analysis in Bolander relied on Hawkins, 148 F.3d 379, a

case    involving      the    longstanding         attorney-client      privilege,      to

which the Supreme Court, too, analogized the psychotherapist-

patient privilege.            See Jaffee, 518 U.S. at 11.              In Hawkins, we

noted that the “client is the holder” of the privilege, as is

the    patient    in    the    psychotherapy        context,    “and    can    waive    it

either expressly, or through conduct.”                       148 F.3d at 384 n.4

(citations and parentheticals omitted); see also Koch v. Cox,

489 F.3d 384, 391 (D.C. Cir. 2007) (noting that a plaintiff

“waives the psycho-therapist-patient privilege when . . . he

does    the    sort    of    thing    that   would     waive   the     attorney-client

privilege”).

       In Hawkins, a former husband alleged that his former wife

illegally recorded telephone conversations between him and his

girlfriend.           In     her   deposition,       the     former    wife    answered

questions about whether her lawyer had advised her regarding the

wiretap:



                                             30
             Q: Is it true or not that Larry Diehl, in his
        capacity as your [divorce] attorney, told you to take
        a wiretap off the phone at the marital residence?
             A: No, sir. Because I wouldn’t have discussed
        that with him, since it didn’t happen. So, therefore,
        he would have no need to make mention of that to me.

Hawkins, 148 F.3d at 381.             We observed that “[a]lthough the

question      asked     during     the        deposition       clearly         elicited

information    regarding       confidential      communications       [the      former

wife] may have had with [her lawyer], and was objectionable on

its face on the ground of attorney-client privilege, neither

[the former wife] nor her attorney asserted an objection.”                       Id.

     In    answering     the    question      without       raising   a    privilege

objection,    the     former   wife   “waived     the    privilege        as    to   the

subject matter of the phone tap.”               Id. at 384.       And “[b]ecause

the privilege had been impliedly waived by [the former wife],

[the former husband] was entitled to question [the former wife’s

lawyer] regarding the alleged wiretap.”               Id.

     As Hawkins illustrates, waiver through conduct, or “implied

waiver,” “occurs when the party claiming the privilege has made

any disclosure of a confidential communication to any individual

who is not embraced by the privilege.”                      Id. at 384 n.4; see

also, e.g., Hanson v. United States Agency for Int’l Dev., 372

F.3d 286, 294 (4th Cir. 2004) (“Implied waiver occurs when a

party     claiming      the    privilege        has     voluntarily        disclosed

confidential information on a given subject matter to a party


                                         31
not   covered        by     the    privilege.”).            This    is     because      such    a

disclosure       “vitiates         the    confidentiality          that    constitutes     the

essence of the . . . privilege.”                     Hawkins, 148 F.3d at 384 n.4.

And disclosure “not only waives the privilege as to the specific

information revealed, but also waives the privilege as to the

subject matter of the disclosure.”                    Id.

      The       reasoning         behind    waiver     in     such        circumstances        is

intuitive:           “[A] judicial system that ignores publicly known

information or information known to an adversary risks losing

its   legitimacy            as     a     truth-seeking       process.”            Privileged

Communications, 98 Harv. L. Rev. 1450, 1646 (May 1985).                                Indeed,

“[o]ver time, public confidence in our legal system might be

eroded      .    .     .    by     a     general     perception          that    the     courts

systematically exclude probative evidence” or the potential for

“public disagreement with the factfinder’s decision.”                                   Id. at

1646-47.             It     has,       therefore,     been     suggested          that    “all

disclosures          that    are       likely   to   lead    to     privileged         material

becoming either public or accessible to the privilege-holder’s

legal adversary should be treated as waiving the privilege with

respect to the matter disclosed.”                    Id. at 1647.

      In    deeming         communications         impliedly       waived,      this   Circuit

has found waiver even in closed proceedings and pursuant to a

subpoena.        For example, in United States v. Bollin, we held that

the defendant waived the attorney-client privilege as to certain

                                                32
transactions       and    communications           with     his     attorney        where    he

testified “before the grand jury pursuant to a subpoena” about

those transactions and communications.                          264 F.3d 391, 412 (4th

Cir. 2001).

       We have also recognized implied waiver in the context of

communications that predated the commencement of the litigation

where the waiver issue had been raised.                          For example, in In re

Grand    Jury    Subpoena,       we   held     that       the    defendant     waived       the

attorney-client privilege regarding whether a lawyer had aided

him in answering a question on an immigration form when, in an

earlier      conversation        with    Federal          Bureau       of    Investigation

agents, the defendant had reported that he had answered the form

question as he did on the advice of an attorney.                             341 F.3d 331.

And in In re Grand Jury Subpoena, we indicated that while no

“broad-based” waiver occurred, a client’s identity and certain

documents identified in a subpoena were no longer confidential,

and    any   privilege        associated      with    them       was   waived,      when    the

client       authorized       his     attorney       to     convey      to    the     lawyer

representing parties threatening suit his motives for seeking

legal advice.      204 F.3d 516, 522 (4th Cir. 2000).

        Viewing these cases holistically, they indicate that in

this    Circuit,       privileges      such    as     the       psychotherapist-patient

privilege       must     be    construed       narrowly          and   may     be     waived,

including impliedly.            And implied waiver may be effectuated by

                                              33
disclosure      to   third-parties      before    the    litigation    at    hand

commences and by providing information in response to a court

command such as a subpoena.

                                        C.

       Turning now to the case at hand, during her plea hearing in

open   court,    Kinder    told   the    district       court   that   she   took

numerous    medications,    including        anti-depressants,     anti-anxiety

drugs, and muscle relaxers.          Kinder revealed that she had been

diagnosed with bipolar disorder and schizophrenia but that she

did not know which drugs treated which conditions because her

treatment providers “never told [her] that this is what I am

prescribing you for schizophrenia.”               Tr. of Plea Hr’g at 12,

United States v. Kinder, No. 2:12-cr-00114 (S.D. W. Va. June 19,

2012).

       Kinder detailed—well beyond what the district court asked—

her extensive psychiatric issues and treatments.                 She explained

that her metal health deteriorated after the birth of her son

and that “it was just – just pretty much the way my life has

went for the past 26 years, is in and out of hospitals and

emergency rooms and what – because I didn’t know, they couldn’t

tell me what was wrong with me.              I was having panic attacks and

they were telling me I just had a little anxiety and send me

home . . . .”        Id. at 11.   Kinder also reported multiple suicide

attempts.

                                        34
       Kinder    detailed       her    admissions      to   four    hospital       “psych

wards”:    Logan      Regional       Hospital,   St.    Mary’s     Hospital,       Thomas

Memorial      Hospital,       and    Highland    Hospital.         Id.   at   7.      She

identified      at    least    one    of   her   treating    physicians       by    name.

Kinder also shared, for example, that she felt her doctors did

not “really care[] enough to sit down and find out what was

going on and most . . . would just, you know, write me more

drugs and send me home.”              Id. at 13.

       At no point during her extensive testimony did Kinder or

her counsel express privilege concerns.                     Not once did either,

for example, seek a side bar.               Meanwhile, “counsel for [White]”—

and who knows who else—“was present in the public gallery during

the proceeding to hear this entire discussion.”                          J.A. 97-98.

Further, the transcript of “this entire discussion” is a filed

document not under seal and thus publicly available for all to

see.

       White’s motion for early production of records was based on

the information Kinder revealed during her plea hearing.                              He

sought only limited treatment records, only from each of the

four hospitals Kinder identified at her plea hearing, and only

for use in his related criminal proceeding.

       With     her    extensive        testimony      in   open     court,        Kinder

“vitiate[d] the confidentiality that constitutes the essence” of

the psychotherapist-patient privilege as to the limited records

                                            35
White sought.             Hawkins, 148 F.3d at 384 n.4.                     She “voluntarily

disclosed         confidential         information    on       [the    pertinent]    subject

matter to a party not covered by the privilege” and thereby

impliedly waived it.              Hanson, 372 F.3d at 294. 3

       In my view, the fact that the testimony that constituted

implied          waiver    here    was     prompted       by     the    district     court’s

(limited) questioning is not dispositive.                         Cf. Bollin, 264 F.3d

at 412 (holding that the defendant waived the attorney-client

privilege as to certain transactions and communications with his

attorney where he testified “before the grand jury pursuant to a

subpoena”         about    the    same).      Nor    is    it    dispositive       that    the

testimony         resulting       in    waiver     predated       the       commencement   of

White’s criminal proceeding.                 See In re Grand Jury Subpoena, 341

F.3d       331    (holding       that    defendant    waived          the    attorney-client

privilege through an earlier conversation with federal agents);

In re Grand Jury Subpoena, 204 F.3d at 522 (indicating that

attorney-client privilege was waived by an earlier letter sent

at client’s request upon threat of a civil suit).


       3
       Kinder also permitted the disclosure of her mental health
records for purposes of her presentence report.         But the
confidentiality of presentence reports—which routinely address
“intensely personal matters” such as family history, mental
health, and financial condition—“has always been jealously
guarded.” United States v. Trevino, 89 F.3d 187, 192 (4th Cir.
1996).   I would thus decline any invitation to downgrade the
presentence report’s confidentiality here.



                                              36
     In sum, I conclude that by discussing at length, in detail,

and without any hint of privilege concerns, her mental health

problems and treatments in open court, Kinder extinguished the

confidentiality of those subjects and thereby waived her ability

to block White’s access to directly-related records by claiming

privilege.     The     district   court        therefore   did    not   err   in

authorizing a limited release of certain of Kinder’s records to

White for use in his related criminal proceeding.



                                    III.

     For the reasons above, I would affirm the district court’s

grant   of   White’s    motion    for        early   production   of    records.

Accordingly, I respectfully dissent.




                                        37
