Waiver by Providing Privileged Material to Testifying Expert — Standards: Clear and Convincing Evidence, Clearly Erroneous — Appellate Deference to Credibility Findings & Its Limits

United States v. Bolander, 2013 U.S. App. LEXIS 13659 (4th Cir. July 5, 2013):

To obtain a commitment order against Bolander, the government was required to establish three elements by clear and convincing evidence. First, the government was required to establish that Bolander had "engaged or attempted to engage in . . . child molestation" in the past, 18 U.S.C. § 4247(a)(5). Next, the government was required to prove that he currently "suffers from a serious mental illness, abnormality, or disorder," id. § 4247(a)(6). Finally, the government was required to show that Bolander, as a result of the illness, abnormality, or disorder, "would have serious difficulty in refraining from . . . child molestation if released." Id.

"[C]lear and convincing has been defined as evidence of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established, and, as well, as evidence that proves the facts at issue to be highly probable." Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001) (citations, alterations, and internal quotation marks omitted).

On appeal, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). "This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 573-74.

"When findings are based on determinations regarding the credibility of witnesses," we give "even greater deference to the trial court's findings." Id. at 575. We do this because

only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. But when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.

Id. (citations and alterations omitted). As with lay witnesses, "[e]valuating the credibility of experts and the value of their opinions is [also] a function best committed to the district courts, and one to which appellate courts must defer," and we "should be especially reluctant to set aside a finding based on the trial court's evaluation of conflicting expert testimony." Hendricks v. Central Reserve Life Ins. Co., 39 F.3d 507, 513 (4th Cir. 1994).***

Like all testimonial or evidentiary privileges, the psychotherapist-patient privilege must be strictly construed. United States v. Squillacote, 221 F.3d 542, 560 (4th Cir. 2000) (spousal privilege). In the case of another evidentiary privilege, the attorney-client privilege, we have recognized that the holder of it may waive the privilege either expressly or impliedly by a voluntary disclosure to a third party. Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th Cir. 1998) (attorney-client privilege). An implied waiver waives the privilege not only as to the specific information disclosed, but also as to the subject matter of the disclosure. Id. The burden rests on the person invoking the privilege to demonstrate its applicability, including the absence of any waiver of it. United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982).***

A patient may waive the psychotherapist--patient privilege by knowingly and voluntarily relinquishing it. United States v. Hayes, 227 F.3d 578, 586 (6th Cir. 2000). A waiver may occur when the substance of therapy sessions is disclosed to unrelated third parties, see id. (noting that "a patient can waive the protections of the psychotherapist/patient privilege by disclosing the substance of therapy sessions to unrelated third parties"), or when the privilege is not properly asserted during testimony. See Hawkins, 148 F.3d at 384 ("By answering the question as [the defendant] did, [the defendant] both waived her [attorney-client] privilege and provided probative evidence [on the subject matter].").

In this case, Bolander willingly provided the SOTP [privileged] materials to his own expert, Dr. Warren. In the report, Dr. Warren acknowledged that he received and reviewed the materials Bolander claims are privileged. Bolander did not assert the psychotherapist--patient privilege prior to his disclosure to Dr. Warren. Rather, he waited until approximately one month prior to the evidentiary hearing to do so, even though the case had been pending in the district court for quite some time. By failing to timely assert the psychotherapist--patient privilege, Bolander waived whatever privilege he may have had. Put another way, it was incumbent upon Bolander to assert the psychotherapist--patient privilege in a timely fashion, rather than waiting until the eleventh hour to do so. See United States v. Ary, 518 F.3d 775, 784-85 (10th Cir. 2008) (holding that failure to timely assert attorney-client privilege constitutes waiver); United States v. White, 970 F.2d 328, 334-35 (7th Cir. 1992) (same). Moreover, to the extent Bolander claims a privilege in his communications with Dr. Warren, we reject this argument as well. Dr. Warren was not being sought for treatment, but rather to evaluate Bolander's mental condition. And as the Supreme Court in Jaffee made clear, the privilege only extends to those psychotherapists who are being consulted for diagnosis and treatment, not under other circumstances. 501 U.S. at 15.

Bolander also failed to assert the psychotherapist--patient privilege during his October 4, 2011 deposition. During that deposition, Bolander was asked questions about his participation in the SOTP. He did not assert any privilege with respect to the information he provided in the SOTP, including the documents generated by the program. Instead, Bolander openly discussed his participation in the SOTP, including the numerous admissions he made during that program. By answering questions without asserting the psychotherapist--patient privilege, Bolander waived any privilege he may have enjoyed. Hawkins, 148 F.3d at 384.

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