Dorato ex rel. Wrongful Death Claim of Tillison v. Smith (163 F. Supp. 3d 837, 2015)

MEMORANDUM OPINION AND AMENDED ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Plaintiffs’ Motion to Strike Defendants’ Affirmative Defenses and Officer Smith’s Defense of Doctor Patient Privilege [Doc. 10], filed May 14, 2014 (Doc. 13)(“MTS”); (ii) Defendant Martin Smith’s Motion for Protective Order, and Memorandum in Support, filed August 4, 2015 (Doc. •101)(“MPO”); (iii) the Plaintiffs’ Opposed Second Motion to Compel Discovery, filed August 25, 2015 (Doc. 106)(“MCD”); and (iv) the Defendants’ Motion, and Memorandum in Support, for the Court to Certify the Court’s Order [Doc. 117] and Pending Memorandum Opinion for Interlocutory Appeal, filed October 12, 2015 (Doc. 121)(“MTC”). The Court held hearings on September 14, 2015, September 24, 2015, and November 16, 2015. The primary issues are: (i) whether the Court should strike any of the Defendants’ affirmative defenses and responses, including their responses based on the physician-patient privilege; (ii) whether the Court should grant a protective order for Defendant Officer Martin Smith’s psychological records, because they are allegedly irrelevant to Plaintiff Veronica Dorato’s federal claim, privileged, or otherwise excluded from disclosure; (iii) whether the Court should compel the production of internal Albuquerque Police Department (“APD”) documents despite Smith’s privacy rights and the self-critical analysis privilege; and(iv) whether the Court should certify its Order, filed October 2, 2015 (Doc. 117)(“MPO/MCD Order”), to the United States Court of Appeals for the Tenth Circuit, because its decisions on the parties’ discovery dispute involve an allegedly controlling issue of law, and because an immediate appeal would allegedly materially advance the ultimate termination of the litigation. First, the Court will grant the MTS in part and deny it in part. The Court will deny Dora-to’s request to strike the Defendants’ affirmative defenses, because it does not apply the heightened pleading standards in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), to affirmative defenses. The Court will grant Dora-to’s request that the Defendants revise their responses to paragraphs 12 and 13 of the Complaint. Federal privilege law applies to Dorato’s federal claims, even though some evidence must be produced for the federal claims that would not need to be produced if there were only state claims, and the disclosed evidence may be used for both federal and state claims. The Defendants cannot rely on the nonexistent federal physician-patient privilege in'their responses.

Second, the Court concludes that, although there is a federal psychotherapist-patient privilege, Smith waived that privilege as to both records and examinations which he knew would be disclosed to others, and those documents generated at the direction of and for the benefit of the City of Albuquerque if it would see them. Any psychotherapy records within a third party’s control must be disclosed to the Defendants’ attorney, who must prepare a privilege log. The Court thus grants the MPO to the extent that it covers privileged information and denies it to the extent that it covers non-privileged information. Finally, the Court concludes that its MPO/ MCD Order did not decide a controlling legal issue, that there is no substantial ground for difference of opinion about the relevant issues, and that an immediate appeal would not materially advance this litigation’s termination. It thus denies the Defendants’ motion and declines to certify the matter to the Tenth Circuit.

FACTUAL BACKGROUND

The Court takes its facts from the First Amended Complaint for Civil Rights Violations, filed April 8, 2015 (Doc. 73)(“Amend-ed Complaint”). The Amended Complaint contains facts that are common to all Counts, and gives two versions of events that Smith has provided to explain his actions. The Court will describe the facts that are common to all Counts, and then will describe Smith’s two versions of events, as the Amended Complaint alleges them.

1. Facts Common to Both Versions.

Smith served as an Army Ranger in Afghanistan, where he was involved in multiple engagements “resulting in extended exposure, conflict, loss of life, and other horrors of war.” Amended Complaint ¶¶ 7-9, at 2. After returning to Albuquerque, Smith was diagnosed with Post Traumatic Stress Disorder (“PTSD”), and the Veterans Affairs Hospital gave him a one-hundred-percent disability rating “based on the severity of his PTSD.” Amended Complaint ¶¶ 9-10, at 2. The APD of the City of Albuquerque, New Mexico knew that Smith had received a one-hundred-percent disability rating when it re-hired him. See Amended Complaint ¶ 11, at 3. The APD also knew that Smith suffered from PTSD, and from symptoms that included flashbacks, blackouts, and waking-nightmares. See Amended Complaint ¶ 12, at 3. The APD nonetheless assigned Smith to the Southeastern quadrant of Albuquerque in an area that is commonly known as the “War Zone.” Amended Complaint ¶ 13, at 3. Smith told his fellow officers that he often suffered from PTSD symptoms, including flashbacks, while on the job as an APD officer. See Amended Complaint ¶ 14, at 3.

On March 19, 2012, at approximately 1:08 p.m. Smith responded to a call from dispatch concerning a black Sports Utility Vehicle (“SUV”) that was parked at an apartment complex at 8201 Marquette NE in Albuquerque. See Amended Complaint ¶ 15, at 3. An anonymous caller had informed the dispatcher that someone was possibly selling stolen items in the apartment complex’s parking lot. See Amended Complaint ¶ 16, at 3. The dispatcher advised Smith that the National Crime Information Center (“NCIC”) database did not list the SUV’s plates as stolen. See Amended Complaint ¶ 17, at 3.

At “approximately 1:13:55 pm,” Smith notified the dispatcher that he had arrived at 8201 Marquette Avenue NE. Amended Complaint ¶ 18, at 3. At 1:15:05 p.m., Smith called into dispatch “to ‘clear the air’ and [state] that he had made contact with the vehicle’s occupant, Daniel Tilli-son.” Amended Complaint ¶ 18, at 3. Smith conducted a felony stop by parking his patrol car directly behind the SUV. See Amended Complaint ¶ 19, at 4. He approached the SUV’s driver side window with his gun drawn and ordered Tillison to show his hands. See Amended Complaint ¶ 20, at 4. The SUV’s driver side window was open, and Tillison was talking on a black cellular telephone during the entire encounter with Smith. See Amended Complaint ¶ 21, at 4. Tillison told Smith that he did not do anything wrong, and he raised his hands, while holding the cellular telephone in his right hand. See Amended Complaint ¶ 22, at 4. Smith then suffered a PTSD related episode and fatally shot Til-lison. See Amended Complaint ¶ 23, at 4.

Between 1:16:09 p.m. and 1: 16:19 p.m., Smith called over his police radio “shots fired” and that the “subject tried running over me.” Amended Complaint ¶¶ 24-25, at 4. At 1:17:20 p.m., Smith told dispatch that Tillison appeared dead. See Amended Complaint ¶26, at 4. Officer George Trujillo arrived at the scene five seconds later. See Amended Complaint ¶ 27, at 4. At 1:17:38 p.m., Smith told the dispatcher that Tillison was the only person in the car, and that he was still in the car. See Amended Complaint ¶ 28, at 4. Other officers who arrived at the scene found that the SUV was in gear in reverse. See Amended Complaint ¶ 29, at 4. By 1:19:00 p.m., Tillison was gasping for air. See Amended Complaint ¶31, at 3. Tillison died at the scene. See Amended Complaint ¶ 32, at 5. APD confirmed that the stereo equipment in Tillison’s SUV was not stolen. See Amended Complaint ¶ 33, at 5.

Smith later told his co-workers that he blacked out and had a PTSD moment when he shot Tillison. See Amended Complaint ¶ 81, at 11. Smith did not issue any warnings that he was going to shoot. See Amended Complaint ¶ 82, at 11. Tillison did not utter any fighting words or any words that would indicate to Smith that he was a theat. See Amended Complaint ¶ 86, at 11. An APD police training expert testified, in another case, that APD’s training on use of deadly force is unreasonable. See Amended Complaint ¶ 90, at 11. Smith violated APD policy by firing his gun at the SUV and at Tillison. See Amended Complaint ¶ 95, at 13.

2. Version One.

Smith stated that, on March 19, 2012, he was performing his regular shift as a patrol officer. He was wearing a police uniform and driving a marked police car. See Amended Complaint ¶ 35, at 5. At approximately 1:08 p.m. on March 19, 2012, an APD dispatcher directed him to respond to a call at 8201 Marquette NE. See Amended Complaint ¶ 35, at 5. The anonymous caller had reported to the APD that someone was possibly selling stolen items in a parking lot and that the person’s car was a black SUV. See Amended Complaint ¶ 36, at 5. The dispatcher provided Smith with the SUV’s license plate number and advised him “that there was a ‘history’ with that plate.” Amended Complaint ¶ 37, at 5. Smith ran a “form inquiry” check on the plate, which indicated that it had been reported as stolen within the last week. Amended Complaint ¶ 37, at 5. He also ran an NCIC check, which indicated that the SUV was not stolen. See Amended Complaint ¶ 37, at 5. He then searched the area for the SUV. See Amended Complaint ¶ 38, at 5.

Smith located the black SUV in an apartment complex parking lot at 1:13 p.m. and stated that he was “on scene.” Amended Complaint ¶ 39, at 6. After he informed dispatch that the SUV appeared to be occupied, the APD instructed all other radio traffic to remain silent. See Amended Complaint ¶ 40, at 6.

Smith pulled into the parking lot, and parked his car at a semi-angle to the left side of the SUV. See Amended Complaint ¶ 40, at 6. There was a truck parked on the other side of the SUV, in the parking space directly to its right. See Amended Complaint ¶ 40, at 6. Smith saw a man moving inside the SUV. See Amended Complaint ¶ 41, at 6. He exited his patrol car and moved towards the SUV’s open window, ordering Tillison to put his hands outside the window. See Amended Complaint ¶ 41, at 6. Tillison then began moving around inside the SUV. See Amended Complaint ¶ 44, at 6. He looked back at Smith, reached down to his right side, and then reached around his seat into the back area. See Amended Complaint ¶ 44, at 6. Smith pointed his gun at the window and screamed: “Let me see your hands, let me see your hands. Put them outside the window now.” Amended Complaint ¶ 44, at 6. Tillison began to open the SUV’s window with his left hand, but Smith could not see Tillison’s right hand. See Amended Complaint ¶¶ 45-46, at 6. Tillison tried to open the SUV’s door, but Smith pushed the door shut, continuing to order Tillison to show his hands. See Amended Complaint ¶ 47, at 6.

When Smith was about an arm’s length away from the SUV, Tillison put the SUV in reverse and rammed it into Smith’s car and the truck that was parked on the other side of the SUV. See Amended Complaint ¶ 49, at 7. Smith began to move away from the SUV, and Tillison drove forward. See Amended Complaint ¶¶ 53-54, at 7. Smith discharged his firearm at the SUV’s tire, but he is unsure if the SUV was driving forward, driving in reverse, or not moving when he fired at the tire. See Amended Complaint ¶¶ 52-53, at 7. Tillison drove the SUV towards Smith, and, through the SUV’s window, Smith saw that Tillison had a black object in his hand that looked like a weapon. See Amended Complaint ¶¶ 55-56, at 7. At this time, Smith was between five and ten feet away from Tillison. See Amended Complaint ¶ 56, at 7. Smith states that he had minimal room to escape. See Amended Complaint ¶ 54, at 7.

Smith believed that Tillison was going to shoot him, so Smith shot Tillison through the window. See Amended Complaint ¶ 57, at 7. Smith, initially, felt threatened by the SUV driving towards him, but he was able to move out of its way. See Amended Complaint ¶ 58, at 7. Smith was afraid of the black object in Tillison’s hand, and, because the SUV was still moving forward, he shot Tillison a second time, killing him. See Amended Complaint ¶¶ 58-59, at 7-8. Tillison fell back in his seat, and the SUV continued backwards between the truck and Smith’s car. See Amended Complaint ¶ 60, at 8. Smith retreated to the back of his patrol car, and reported to the dispatcher that shots had been fired and that Tillison had tried to run him over. See Amended Complaint ¶ 61, at 8. ' He made this call sixty-four seconds after making contact with the SUV. See Amended Complaint ¶ 61, at 8.

Smith returned to the SUV and found that Tillison’s hands were empty. See Amended Complaint ¶ 62, at 8. Tillison did not appear to be breathing, so Smith took him out of the SUV and laid him on the ground. See Amended Complaint ¶ 63, at 8. Smith called for rescue and .applied a combat bandage to Tillison. See Amended Complaint ¶ 64, at 8. Trujillo arrived at the scene, and he began to perform CPR on Tillison. See Amended Complaint ¶ 64, at 8. Other 'officers arrived, and they took Smith from the scene to be processed. See Amended Complaint ¶ 64, at 8. Smith was carrying a tape recorder, but said that there was not any tape in it, because his department was not issuing any more cassette tapes. See Amended Complaint ¶ 66, at 9. Smith had a lapel camera, but he stated that he did not have time to turn it on before the shooting. See Amended Complaint ¶ 66, at 9.

3. Version Two.

Smith approached the black SUV with his firearm drawn, because he believed that the occupant had been selling stolen goods, and because he believed that the SUV was stolen. See Amended Complaint ¶ 67, at 9. Smith “announced himself several times” and walked to the SUV driver’s door. Amended Complaint ¶ 68, at 9. He told Tillison to show his hands and identified himself as “Albuquerque Police,” but Tillison did not comply. Amended Complaint ¶¶ 68-69, at 9. Tillison looked directly at Smith and then began to reach around inside the SUV. See Amended Complaint ¶ 70, at 9-10. Tillison first reached down to the left side next to his seat. See Amended Complaint ¶ 70, at 9-19. He then turned in his seat to reach into the rear of the SUV. See Amended Complaint ¶ 70, at 9-19. When he came back around, Smith could see his left hand, but not his right hand. See Amended Complaint ¶ 70, at 9-19. Tillison tried to open the SUV’s door with his left hand, but Smith closed the. door and told Tillison to stay in the vehicle and to show his hands. See Amended Complaint ¶ 71, at 10. Tillison drove the SUV forward two or three feet, then placed it in reverse, and started reversing. See Amended Complaint ¶ 72, at 10. Smith then turned away from the SUV. See Amended Complaint ¶ 73, at 10. The SUV hit Smith’s vehicle, and Smith fired a round into the SUV driver side’s rear tire. See Amended Complaint ¶¶ 74-75, at 10. The SUV lurched forward, and Smith backed up until he was in about a five square feet area. See Amended Complaint- ¶¶ 76-77, at 10. Smith saw that Tillison’s left hand was on the steering wheel, while his right hand came across his body, holding a dark object, which Smith later learned was a cellular telephone. See Amended Complaint ¶ 78, at 10. Smith shot Tillison. See Amended Complaint ¶ 79, at 10. Tillison slumped down into his seat, and the SUV started to move backwards until it rammed the truck, pushing it backwards. See Amended Complaint ¶ 79, at 10. After “a couple of seconds,” Smith opened the SUV’s door and tied a combat bandage around Tillison. Amended Complaint ¶ 80, at 10-11. At this point, Trujillo arrived and began performing CPR on Tillison. Amended Complaint ¶ 80, at 10-11.

PROCEDURAL BACKGROUND

Plaintiff Veronica Dorato filed suit in state Court on March 14, 2014, see Complaint for Civil Rights Violations at 1, filed March 14, 2014 in state court, filed April 18, 2014 in federal court (Doc. l-l)(“Complaint”) and the Defendants removed the case to federal court on April 18, 2014, see Notice of Removal, filed April 18, 2014 (Doc. 1). The original Complaint alleged nine counts. Count I alleged that Smith violated Tillison’s Fourth Amendment right to be free from unreasonable seizure of himself and his black SUV. See Complaint ¶¶ 105-114, at 14-15. Count II alleged that Smith used excessive force in shooting Tillison. See Complaint ¶¶ 115119, at 15-16. Count III alleged state law tort claims against Smith, including assault, battery, false arrest, and false imprisonment. See Complaint ¶¶ 120-128, at 16. Count IV alleged that Defendant City of Albuquerque was negligent in hiring, training, supervising, and retaining Smith. See Complaint ¶¶ 129-132, at 17-18. Count V alleged a negligent assault and battery claim against the City of Albuquerque under a respondeat superior theory. See Complaint ¶¶ 133-137, at 18. Count VI alleged loss of consortium for I.M., the child of Plaintiff Mary Jobe, Tillison’s “girlfriend/fiancé” at the time of his death. Complaint ¶ 5, at 2; id. ¶¶ 138-143, at 1819. Counts VII and VIII alleged loss of consortium for D.T. and J.T., Jobe and Tillison’s children. See Complaint ¶¶ 4-5, at 2; id. ¶¶ 144-155, at 19-20. Count IX alleged loss of consortium for Jobe. See Complaint ¶¶ 156-161, at 20-21.

The Defendants answered the Complaint on April 25, 2014. See Defendants Martin Smith, the City of Albuquerque, and the City of Albuquerque Police Department’s Answer to Plaintiffs’ Complaint for Alleged Civil Rights Violations, filed April 25, 2014 (Doc. 10)(“Answer”). Paragraphs 12 and 13 of the Complaint alleged:

12. Upon information and belief, when Officer Smith returned to Albuquerque following his tour(s) of duty, he was diagnosed with Post Traumatic Stress Disorder (hereinafter “PTSD”).

13. Upon information and belief, the Veterans Affairs Hospital (hereinafter “VA Hospital”) gave Martin Smith a one hundred percent disability rating based on the severity of his PTSD.

Complaint ¶¶ 12-13, at 3. The Answer neither admitted nor denied these allegations, invoking “the physician patient privilege.” See Answer ¶8, at 2. It included nine conclusory affirmative defenses: (i) lack of standing; (ii) failure to allege claims for which relief can be granted; (iii) the APD’s non-suable entity status; (iv) reasonable suspicion and probable cause; (v) qualified immunity and immunity under the New Mexico Tort Claims Act (“NMTCA”), N.M.S.A. §§ 414-1 to -29; (vi) no clearly established constitutional violation; (vii) reasonable use of force under the totality of the circumstances; (viii) unspecified bars to recovery within the NMTCA; and (ix) Daniel Tillison’s contributory negligence or intentional misconduct. See Answer at 9-10.

1. The MTS.

Dorato filed the MTS on May 14, 2014. See MTS at 1. The MTS makes two primary arguments. See MTS at 2, 9. First, Dorato contends that the Answer’s nine affirmative defenses fail to meet the pleading standards that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal require. See MTS at 5 (explaining that, “[although no federal appellate court has determined whether Iqbal and Twombly apply to affirmative defenses, the majority rule among district courts is that that they do”). Do-rato points out that the Defendants asserted nine affirmative defenses without providing any supporting facts. See MTS at 6. She argues that other supposed affirmative defenses “are actually denials.” MTS at 8. She concludes that allowing these defenses to remain in the Answer would “unnecessarily complicate this case by allowing irrelevant and burdensome discovery, requiring briefing on meritless issues, and confusing the jury.” MTS at 2-3.

Dorato also argues that the Defendants cannot assert the physician-patient privilege to avoid responding to paragraphs 12 and 13 of the Complaint. See MTS at 9. She contends that “there is no longer a physician-patient privilege in New Mexico.” MTS at 9 (quoting Smith v. Ashby, 1987-NMSC-098, ¶ 5, 106 N.M. 358, 743 P.2d 114, 116). Furthermore, she notes that “the physician patient privilege is invoked in order to prevent ex-parte communications between opposing counsel and the adverse party’s physician.” MTS at 9. Because Smith’s health is directly at issue, she argues, the privilege has no application here. See MTS at 9.

The Defendants responded on May 30, 2014. See Defendants’ Response to Plaintiffs Motion to Strike Defendants’ Affirmative Defenses and Officer Smith’s Defense of Doctor Patient Privilege, filed May 30, 2014 (Doc. 17)(“Response to MTS”). They acknowledge that there was no physician privilege at common law, but contend that New Mexico has created a statutory privilege at N.M. R. Evid. 11-504. See Response to MTS at 1-2. They note that Smith “is not relying on any diagnosed physical, mental or emotional condition as a claim or defense,” thus placing the case outside the statute’s exception. Response to MTS at 2 (citing N.M. R. Evid. 11-504). They explain that the reasonableness determination under the Fourth Amendment of the Constitution of the United States is objective, making it independent of an officer’s state of mind. See Response to MTS at 3. The Defendants then argue that Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal do not apply to answers. See Response to MTS at 4-6.

Dorato replied to the Defendants on July 1, 2014. See Plaintiffs’ Reply to Defendants [sic] Response to Plaintiffs’ Motion to Strike Defendants’ Affirmative Defenses and Officer Smith’s Defense of Doctor Patient Privilege [Doc. 17], filed July 1, 2014 (Doc. 28)(“Reply to MTS”). Dorato repeats her arguments on the nine affirmative defenses. See Reply to MTS at 12. She also raises four points on the physician-patient privilege argument. See Reply to MTS at 2-8. First, she says, the identity of the party asserting a defense based on Smith’s health is irrelevant — the Defendants are required to admit or deny the allegations regardless. See Reply to MTS at 2. Second, she notes that the Answer came from both Smith and his employer, and his employer had no standing to assert the privilege. See Reply to MTS at 3. Finally, she argues that a “federal court considering a section 1983 claim applies the federal common law of privilege, and there is no federal physician-patient privilege.” Reply to MTS at 3. Dorato cites Vondrak v. City of Las Cruces, 760 F.Supp.2d 1170 (D.N.M.2009)(Browning, J.), which states that, “where there is a federal cause of action and pendent state-law claims, and where the asserted privilege relates to evidence that is relevant both to the federal and state-law claims ... federal privilege law should apply.” Reply to MTS at 5 (quoting Vondrak v. City of Las Cruces, 760 F.Supp.2d at 1175). Fourth, Dorato contends that Smith waived any privilege by disclosing his mental and physical health issues to the APD during his application process. See Reply to MTS at 6-9.

The Court ruled on the MTS on March 12, 2015. See Order, filed March 12, 2015 (Doc. 65)(“MTS Order”). The Court denied the MTS “insofar as it requests the Court to strike Defendants’ affirmative defenses .... ” MTS Order at 1. It granted the MTS, however, “insofar as it requests the Court to order the Defendants to either admit or deny the truth of the allegations asserted in paragraphs 12 and 13,” because, as it noted, “there is no federal physician-patient privilege.” MTS Order at 2.

2. The MPO.

Dorato filed the Amended Complaint on April 8, 2015. See Amended Complaint at 1. The Amended Complaint consolidates the excessive and unnecessary use of force, and unlawful seizure, claims into Count I. See Amended Complaint ¶¶ 100-104, at 13-14. It retains the state tort claims for assault, battery, false arrest, and false imprisonment in Count II. See Amended Complaint ¶¶ 105-113, at 14-15. Count III alleges that Defendant City of Albuquerque was negligent in hiring, training, supervising, and retaining Smith. See Amended Complaint ¶¶ 114117, at 15-16.

On July 22, 2015, Dorato served a Notice of Videotaped Deposition of Officer Martin Smith on Smith and the other Defendants via electronic mail. See Certificate of Service, filed July 22, 2015 (Doc. 98). The parties set the deposition for August 12, 2015. See MPO at 2.

The Defendants filed the MPO on August 4, 2015. See MPO at 1. The MPO seeks a protective order covering “information concerning the details of [Smith’s] military deployments and history; his disability rating; and confidential healthcare information.” MPO at 1. The Defendants make two primary arguments: (i) the information in question is irrelevant to any of the federal or state claims; and (ii) New Mexico’s physician-patient and psychotherapist-patient privileges apply to Dorato’s causes of action against the City of Albuquerque under state law. See MPO at 1-5. On the first point, the Defendants note that, in excessive force claims, the court must examine the reasonableness of a particular use of force “from the perspective of a reasonable officer on the scene” rather than with “20/20 hindsight.” MPO at 3 (citing Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Defendants explain that “Officer Smith’s past military service, medical and psychological history, and disability rating have no bearing on this objective inquiry.” MPO at 4. They contend that the same principle applies to assault and battery tort claims. See MPO at 4. They also argue that none of the information in question is relevant to Dorato’s negligent-hiring-and-retention claims because the APD “re-hired” Smith in 2000, before the Iraq War and before he developed PTSD. MPO at 4. The Defendants take care to note that “Officer Smith ... has not conveyed his privileged communications with his treatment providers, his disability rating, or the circumstances of that rating or the details of his military service to the upper level management who make the hiring/firing recommendations or decisions for the City of Albuquerque.” MPO at 5.

On the second point, the Defendants acknowledge that there is no federal physician-patient privilege, but argue.that state law privileges should apply to their state law claims. See MPO at 5. They cite rule 501 of the Federal Rules of Evidence, which states that, “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” MPO at 5 (citing Fed. R.Evid. 501). The Defendants also quote the Court’s decision in Vondrak v. City of Las Cruces: “The United States Court of Appeals for the Tenth Circuit has ... held that, where there are federal and state law claims, ‘[a]s to state causes of action, a federal court should look to state law in deciding privilege questions.’” 760 F.Supp.2d at 1176 (quoting Motley v. Marathon Oil Co., 71 F.3d 1547, 1551 (10th Cir.1995)). The MPO again requests that the Court prevent Dorato from asking any questions on Smith’s military service, medical and psychological history/communications, or disability rating. See MPO at 6.

Dorato responded to the MPO on August 18, 2015. See Response to MPO at 1. First, she argues that all of her requested materials are relevant. See Response to MPO at 3-11. She mentions the great breadth of discovery under rule 26 of the Federal Rules of Civil Procedure. See Response to MPO at 3. She then cites Hutton v. City of Martinez, 219 F.R.D. 164 (N.D.Cal.2003), in which the United States District Court for the Northern District of California found an officer’s medical records relevant to determine why he fired at a fleeing suspect rather than chasing him. See 219 F.R.D. at 165. She contends that she has “alleged the same,” arguing that Smith’s physical and mental condition is relevant to determine'whether it caused him to “employ a heightened level of force which may have been excessive under the circumstances.” Response to MPO at 7-8. She also argues that Smith’s physical and mental condition is relevant to his credibility as a witness. See Response to MPO at 8. She notes that the Court can instruct the jury that it may consider the witnesses’ ability to hear, see, or know the subjects about which the witnesses testify. See Response to MPO at 9. Smith’s alleged PTSD and hearing impairment, Dorato states, are relevant to his credibility as the only direct witness to the events in question. See Response to MPO at 10.

Second, Dorato repeats her arguments on the federal physician-patient privilege, noting that “the federal claims asserted in a federal question case are governed by federal common law.” Response to MPO at 4. She quotes the Court’s MTS Order, which states that “there is no federal physician-patient privilege.” Response to MPO at 11 (quoting MTS Order at 2). She argues that, “[wjhere the application of state law would be clearly inconsistent with federal law, state law privileges do not apply.” Response to MPO at 2.

Third, Dorato asserts that Smith waived any privileges applicable to the information in question. See Response to MPO at 18. She explains that

Officer Smith in applying for his job at APD had to disclose any mental or physical health issues he has or had and he was informed that APD had a right to review as well as he had a continuing duty to inform his employer as to any mental or physical health condition he may suffer from.

Response to MPO at 18. Dorato contends that the privilege is lost “when the material subject to protection is disclosed to a third party.” Response to MPO at 18 (citing United States v. Ryans, 903 F.2d 731, 741 n. 13 (10th Cir.1990)). She adds that the Tenth Circuit has rejected the “selective waiver doctrine” even if two primary parties, such as an employer and an employee, agree not to disclose confidential information to third parties. Response to MPO at 18.

The Defendants filed their Reply on September 4, 2015. See Defendant Martin Smith’s Reply to Plaintiffs Response to Motion for Protective Order, filed September 4, 2015 (Doc. 108)(“Reply to MPO”). The Defendants recognize that there is no federal physician-patient privilege, but argue that Smith could invoke New Mexico’s privilege because Dorato also brought a state law claim against the City of Albuquerque. See Reply to MPO at 1-2. The Defendants repeat that Smith’s medical and psychological condition is irrelevant under the “objectively reasonable officer” standard. Reply to MPO at 2. They deny that Smith would “claim that any alleged disabilities provided the objectively reasonable basis to use deadly force against decedent.” Reply to MPO at 2-3. They contend that the records are not relevant to Smith’s credibility, because Dorato “has not cited to any credible medical evidence that a person diagnosed with PTSD has hallucinations and/or otherwise lacks the capacity to testify as a witness.” MPO at 5. They mention that many cases ordering discovery of psychological records required the plaintiffs to first present them to the court for in camera review. See Reply to MPO at 6.

The Defendants, for the first time, assert that the federal psychotherapist-privilege covers any possible PTSD records. See Reply to MPO at 7. They also attempt to distinguish Hutton v. City of Martinez, 219 F.R.D. 164, arguing that the case involved records “connected to the officer’s employment” and a surgical procedure on an officer who complained of back and neck pain at the time of his interview with investigators. See Reply to MPO at 7. The Defendants add that evidence of any mental or physical limitations’ that caused Smith to use excessive force would “tend to support a claim for negligence, not excessive force” and would thus be irrelevant to Dorato’s current claims. Reply to MPO at 8.

The Defendants also explain why the Court should not apply federal privileges to Dorato’s state law claims:

In Vondrak, this Court reasoned that the federal law privilege should apply because the medical information in Vondrak was relevant to both the federal and state law claims. Id. Here, as explained in Defendant’s motion, Plaintiff only seeks this information to prove her state law claim of Negligent Hiring and Retention.

Reply to MPO at 10.

The Defendants also dispute that Smith has waived any privileges. First, they note that the “Plaintiff cites to no authority that Officer Smith’s submission to a psychological exam as a condition of employment acts as a blanket waiver of his psychotherapist-patient privilege to anyone and everyone.” Reply to MPO at 11. They rely on one case for the proposition that, where a psychological fitness evaluation report to the police department is kept completely confidential, the privilege is not waived. See Reply to MPO at 11 (citing Caver v. City of Trenton, 192 F.R.D. 154, 162 (D.N.J.2000)(Hughes, J.)). The Defendants conclude that, “if there was any such waiver, it would be limited in scope to only that information which may have been disclosed outside the psychotherapist-patient relationship.” Reply to MPO at 11.

The Court held a hearing on September 14, 2015. See Transcript of Hearing (taken September 14, 2015)(“Sept. 14 Tr.”). The Court opened the hearing by asking Dorato whether, absent unusual facts about a police officer’s mental and physical health, she would be entitled to discovery on those topics in a standard excessive force case. See Sept. 14 Tr. at 2:18-3:1 (Court). Dorato responded that she would be, because that information “affects the officer’s credibility.” Sept. 14 Tr. at 2:17-18 (Carpenter). Dorato recognized the Graham v. Connor “objective reasonableness” standard, but argued that evidence on Smith’s state of mind could be used to convince a jury to question his testimony. See Sept. 14 Tr. at 5:20-6:7 (Carpenter). Dorato mentioned specifically that PTSD may cause a skewed sense of time. See Sept. 14 Tr. at 5:12-14 (Carpenter). She also clarified she does not seek the psychotherapist’s notes on conversations with Smith, but rather other unspecified evidence of Smith’s alleged impairments. See Sept. 14 Tr. at 6:14-7:5 (Carpenter). The Court and Dorato then attempted to draw a line between cases in which plaintiffs could retrieve all of an officer’s mental health records and eases in which they could not. See Sept. 14 Tr. at 8:13-10:3 (Carpenter, Court). Dorato declined the Court’s proposal that the Defendants turn over only documents related to hearing, saying that she wanted additional mental health-related records. See Sept. 14 Tr. at 13:3-16 (Carpenter). Dorato used the example of a psychological evaluation that recommends that an officer be assigned to desk duty. See Sept. 14 Tr. at 12:20-14:6 (Carpenter, Court). The Court noted, however, that this evidence might be irrelevant under the objective test applied in § 1983 cases. See Sept. 14 Tr. at 15:22-16:11 (Court).

The Court then discussed privilege issues with the Defendants. See Sept. 14 Tr. at 17:2018:10 (Court, Griffin). The Defendants drew a distinction between Smith’s “own personal psychological medical records” and “records that we would have [which] would pertain to any issue that came up on the job as far as him going to employee health or any injury related issue that occurred on the job.” Sept. 14 Tr. at 20:1-14 (Griffin). The Defendants said that they had no access to records in the first category and that Smith would have to waive the privilege before anyone could recover them. See Sept. 14 Tr. at 20:1-8 (Griffin). The Court made another proposal, offering to limit the permissible questions during Smith’s deposition, and to order the Defendants to obtain and conduct a psychotherapist-patient privilege review on Smith’s records. See Sept. 14 Tr. at 21:11-22:17 (Court). The Court specifically noted that “it seems to me that the plaintiff is going to be entitled to this hearing issue, the physical impairment.] The mental health records, I’m less certain that they can be gotten under [§] 1983.” Sept. 14 Tr. at 22:7-13 (Court). The Court added that it believed that Dorato would receive the hearing-related records even under the state claim. See Sept. 14 Tr. at 22:18-19 (Court).

The Defendants referred the Court to their pleadings on the MTS, which they said laid out New Mexico’s evidentiary rules on the patient-physician and psychotherapist-patient privileges. See Sept. 14 Tr. at 23:1-13 (Court, Griffin). The Court then examined how these privileges would apply in practice. The Defendants maintained that questions during the upcoming deposition on Smith’s communications with his psychotherapist would clearly implicate the privilege, as they would be “no different than what you discuss with your lawyer.” Sept. 14 Tr. at 33:14-18 (Court, Griffin). The Defendants allowed that Do-rato could directly ask Smith whether he was able to hear during the incident. See Sept. 14 Tr. at 34:15-19 (Griffin).

The Court explained that Smith would have to execute a waiver, get his medical records, and ship them to his attorneys rather than to Dorato. See Sept. 14 Tr. at 35:3-7 (Court). It suggested that the Defendants prepare a privilege log for Smith’s relevant psychotherapy records. See Sept. 14 Tr. at 35:3-19 (Court, Griffin). The Defendants continued to argue in response that the information was irrelevant to the federal claims. See Sept. 14 Tr. at 37:9-17; 38:1-25 (Griffin).

Dorato then attempted to distinguish Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). See Sept. 14 Tr. at 39:6-41:18 (Carpenter). In that ease, Dorato explained, the plaintiff sought a clinical social worker’s case notes for up to fifty counseling sessions with a police officer defendant. See Sept. 14 Tr. at 39:9-17 (Carpenter). According to Dorato, the Supreme Court of the United States focused on the communications between the police defendant and the therapist. See Sept. 14 Tr. at 40:6-15 (Carpenter). Dorato reassured the Court that she would not ask Smith about the content of Smith’s conversations with any treating psychotherapists. See Sept. 14 Tr. at 41:4-10 (Carpenter). The questions would instead include: “Mr. Smith[,] were you diagnosed with PTSD? When were you diagnosed with PTSD? Who diagnosed you with PTSD? Did you tell your employers?” Sept. 14 Tr. at 40:18-25 (Carpenter). Do-rato also raised the possibility of an injury to Smith’s left knee, which, along with the hearing and alleged PTSD problems, could account for his “100 percent disability rating.” Sept. 14 Tr. at 45:2-20 (Carpenter). She argued that this knee injury could indicate whether Smith’s actions were objectively reasonable. See Sept. 14 Tr. at 47:4-48:4 (Carpenter, Court)(considering whether the decision to use force would have been necessary with a reasonable officer who “was fit for duty both mentally and physically”).

The Court then analyzed Vondrak v. City of Las Cruces:

[I]f I order the documents to be produced under the federal claim, I’m not going to s[i]t here and restrict their you know, say well you can’t use them in any way for the state claim for discovery purposes, you know, but at the same time, if they’re not going to be discoverable for federal, it seems to me that the state privileges limits you more.

Tr. at 48:16-22 (Court).

The Defendants requested specific limits on Smith’s deposition. They contended that “asking about his military service that occurred almost 10 years prior to this shooting” would be inappropriate, citing a similar case that Karen Molzen, Chief Magistrate Judge of the United States District Court for the District of New Mexico, decided. Sept. 14 Tr. at 50:3-21 (Griffin). In that case, the Defendants argued, Chief Magistrate Judge Molzen blocked a plaintiffs attempt to inquire into a police shooting defendant’s alleged PTSD. See Sept. 14 Tr. at 50:16-21 (Griffin). Chief Magistrate Judge Molzen allegedly found this line of questioning irrelevant, despite that the case, like this one, involved a municipal liability claim. See Sept. 14 Tr. at 50:24-51:10 (Griffin).

The. Court ended the hearing by explaining its decision. The Court: (i) required Smith to execute a waiver of his privileges as to his medical records; (ii) required Smith’s attorney to serve a subpoena with the signed waiver; (iii) required Smith’s attorney to produce a privilege log for the psychotherapy records (but not for medical records); (iv) allowed Dorato to make “robust questioning” at Smith’s deposition, including: “Have you seen a psychotherapist?” and questions on the dates Smith met with the psychotherapist; and (v) required the Defendants to produce all of the medical records related to Smith’s hearing under a protective order. Sept. 14 Tr. at 53:19-56:15 (Carpenter, Court, Griffin).

3. The MCD.

Dorato filed her MCD on August 25, 2015. See MCD at 1. The MCD first addresses a number of specific discovery disputes. See MCD at 1-4. Dorato seeks a copy of Smith’s APD personnel file and related documents, including his application, background check, training, evaluations, complaints, and medical/psychologir cal history. See MCD at 1-4. She argues that the Defendants have no legitimate reason to withhold any of these materials. See MCD at 1-4.

Second, Dorato attacks the Defendants’ argument that Smith has privacy rights that prevent disclosure. She notes that “public employees do not have a reasonable expectation of privacy in the facts contained within their investigation or personnel files.” MCD at 5 (citing Flanagan v. Munger, 890 F.2d 1557, 1570-71 (10th Cir.1989)). Police internal investigation files, she says, are not protected if the “documents relate[ ] simply to the officers’ work as police officers.” MCD at 5 (quoting Denver Policemen’s Protective Ass’n v. Lichtenstein, 660 F.2d 432 (10th Cir.1981)). Dorato agrees to redact highly sensitive information such as Smith’s home address, date of birth, and social security number. See MCD at 6.

Dorato also contends that the selficritical privilege analysis does not apply here. See MCD at 7. She states that any “matters of opinion,” such as files on citizen complaints against particular police officers, should be produced to the Court for in camera review or released outright. MCD at 7. She explains that “[t]he majority of courts conclude that public officers do not have a privacy interest in their interactions with the public.” MCD at 6.

Finally, Dorato contends that the attorney-client privilege does not shield certain documents related to the APD’s internal affairs investigations. See MCD at 9. She notes that the privilege “protects communications generated or received by an attorney giving legal advice, but does not protect communications derived from an attorney ... acting in some other capacity.” MCD at 9 (citing State ex rel. State Highway Comm’n v. Steinkraus, 1966-NMSC-134, ¶ 4, 76 N.M. 617, 417 P.2d 431, 432).

The Defendants responded to the MCD on September 11, 2015. See Defendants’ Response to Plaintiffs Second Motion to Compel, filed September 11, 2015 (Doc. lll)(“Response to MCD”). The Response to MCD accuses Dorato of misrepresenting the Defendants’ discovery responses and notes that “the main issue of dispute concerns the relevancy of documents that concern matters of opinion and internal investigations and whether such documents should be disclosed pursuant to a protective order so that they will remain confidential.” Response to MCD at 1.

The Defendants first focus on Smith’s internal affairs documents. See Response to MCD at 3. The Defendants point out that Dorato refused their offer to produce most of these documents under a protective order forbidding disclosure to non-parties and non-attorneys-of-record. See Response to MCD at 3. The Defendants cite to the “self-policing” or “self-critical analysis privilege,” which they say promotes candidness during internal investigations — if police officers’ disparaging statements became public in every case, it would “have a chilling effect on them willingness” to speak freely during future investigations. Response to MCD at 5 (citing King v. Conde, 121 F.R.D. 180, 192 (E.D.N.Y.1988)(Weinstein, J.)). The Defendants say that the disclosure of documents wholly irrelevant to the shooting does not serve any compelling state interest and infringes on Smith’s right to privacy. See Response to MCD at 6.

The Defendants then argue that the Court should impose a protective order. See Response to MCD at 8-9. They explain that “confidential information should be subject to a protective order.” Response to MCD at 8 (citing Kelly v. Romines, No. MC 11-0047, 2012 WL 681806, at *6 (D.N.M. Feb. 27, 2012)(Browning, J.)). In this case, they say, “[w]ith the exception of citizen complaints, internal affairs documentation and investigations by the Police Oversight Board are deemed to be confidential in accordance with City Ordinance, the Albuquerque Police Department Standard Operating Procedures[,] and the City’s contractual agreement with the Albuquerque Police Officer’s Association.” Response to MCD at 8. They argue that these facts' constitute good cause for the entry of a protective order. See Response to MCD at 8-9.

The Defendants also update the Court on ongoing negotiations with Dorato. They ask the Court to step in and perform an in camera review of four documents, Bates numbers COA1, COA12, COA46, COA52, to determine whether they are relevant or privileged. See Response to MCD at 9. They note that they are working with Dorato to narrow the request for training records. See Response to MCD at 9-10. Finally, the Defendants state that they already provided Smith’s performance evaluations to Dorato. See Response to MCD at 10.

The Court held initial discussions on the MCD as part of its September 14, 2015 hearing. See Sept. 14 Tr. at 62:1-3 (Court). Dorato argued that Smith had waived the privilege as to all files “already in the possession of the police department or the city.” Sept. 14 Tr. at 62:10-20 (Carpenter). The Defendants countered that either entity would require a release form to provide any records — that their mere possession of information “doesn’t mean that it’s discoverable, or that it’s waived to the entire world.” Sept. 14 Tr. at 62:18-23 (Griffin).

The parties debated the possibility of producing internal affairs records subject to a protective order. Dorato made it clear that she opposed any exceptions related to Smith’s psychological history. See Sept. 14 Tr. at 65:1-7 (Carpenter). The Defendants first stated that they would need a court order to retrieve any psychological records from City of Albuquerque or APD employees. See Sept. 14 Tr. at 66:5-7 (Griffin). The Defendants also noted that other courts in similar situations ordered in camera reviews to determine whether documents were relevant. See Sept. 14 Tr. at 66:14-19 (Griffin). The Defendants again complained that the Court was “making a predetermination that everything is relevant.” Sept. 14 Tr. at 66:21-23 (Griffin). The Court replied that the Defendants would “have a hard time convincing me that the psychological materials ... in the city’s possession, custody or control are not producible,” but mentioned that the credit reports were less likely to be relevant to a shooting case. Sept. 14 Tr. at 67:6-11 (Court).

Dorato’s counsel then stated that she had been able to obtain psychological reports in other cases evaluating APD officers’ judgment and whether they should be assigned to street patrols. See Sept. 14 Tr. at 68:1-15 (Carpenter). She added that the APD would have created a report for Smith in 2000, and that the Defendants would know which of the APD’s employees or contractors performed the tests. See Sept. 14 Tr. at 68:16-25 (Carpenter). The Court then concluded the hearing. It stated that it would grant the MCD and issue an opinion at a later date. See Sept. 14 Tr. at 70:10-11 (Court).

On September 14, 2015, the Defendants’ counsel sent an electronic mail transmission to the Court stating that she was “unclear” about the timeframe for records she should disclose and requesting a “brief telephonic hearing” on the issue. Electronic Mail Transmission from Stephanie Griffin, Deputy City Attorney, to K’Aun Wild, Courtroom Deputy, dated September 14, 2015 (Doc. 136)(“First Email”). The Court told Ms. Wild that the City of Albuquerque should talk to Dorato to determine whether there was any disagreement on its instructions. Ms. Wild responded to the electronic mail transmission by telephone the same day. The next day, the Defendants’ counsel sent a second electronic mail transmission. See Electronic Mail Transmission from Stephanie Griffin, Deputy City Attorney, to K’Aun Wild, Courtroom Deputy, dated September 15, 2015, filed September 15, 2015 (Doc. 136)(“Second Email”). The Second Email expanded the topics under discussion to include: (i) the timeframe for any medical record releases Smith had to sign; (ii) the precise scope within which the Court found that Smith had waived the psychotherapist privilege; and (iii) the timeframe for the City of Albuquerque to disclose records within its possession and control. See Second Email at 1. The Court instructed Ms. Wild to respond by telephone, and provided its hand-written responses on a printed version of the Second Email. See Second Email at 1. Ms. Wild again responded by telephone.

On September 18, 2015, the Defendants followed the Court’s instruction to confer with Dorato on the three points they raised in their Second Email. See Defendants’ Unopposed Motion for Expedited Telephonic Hearing at ¶¶8-9, at 3, filed September 18, 2015 (Doc. 113)(“MTH”). The Defendants moved for an expedited telephonic hearing later the same day. See MTH at 1. Their motion raised three primary issues. First, they objected to any disclosure of records that post-dated the shooting incident. See MTH ¶ 9, at 3. Second, they argued that the Court had to “specify the scope, if any, the Court finds that the psychotherapist-patient privilege is waived.” MTH ¶ 10, at 3-4. Third, they disputed whether “the Court directed that Officer Smith sign a release for the psychological records that may be in the custody and control of a psychologist who is on contract for the City.” MTH ¶ 11, at 4.

4. The Status Conference.

The Court held a telephonic status conference hearing on September 24, 2015. See Transcript of Hearing (taken September 24, 2015)(“Sept. 24 Tr.”). The Court began by stating its position on the issues that the Defendants raised in the MTH. It repeated that its discovery order would apply from “ten years prior to the date of [the] incident to the present.” Sept. 24 Tr. at 3:3-4 (Court). It explained that the City of Albuquerque had to disclose all documents in its possession because the scope of the waiver was relatively expansive. See Sept. 24 Tr. at 3:5-11 (Court). It also explained that Smith had to “do what he needs to do to make these [records] available,” including signing a release. Sept. 24 Tr. at 2:19-3:24 (Court).

Second, the Court addressed the possibility that some of the City of Albuquerque’s records would come from a psychiatrist or psychologist who helps officers deal with the emotional fallout from police shootings. See Sept. 24 Tr. at 5:5-14 (Court). The Court noted that these documents “would not be something that the city would ever see and that ... it’s almost like a service that the city is providing.” Sept. 24 Tr. at 5:11-14 (Court). It thus refused to require the Defendants to produce these records. See Sept. 24 Tr. at 5:16-21 (Court).

The Defendants questioned whether the Court could actually compel Smith to “waive his privilege,” given that the medical release forms state that release is contingent on voluntary consent without coercion. Sept. 24 Tr. at 6:14-24 (Griffin). The Defendants said they might be unable to obtain any records without a written order or a subpoena. Sept. 24 Tr. at 6:25-7:18 (Griffin). The Court proposed that Dorato prepare a draft order “that we can give ... to the psychotherapist and get these documents in Ms. Griffin’s hands.” Sept. 24 Tr. at 8:3-5 (Court).

Dorato then argued that the Court should broaden its required disclosures to encompass psychological records from earlier than ten years before the date of the shooting. See Sept. 24 Tr. at 8:13-12:6 (Carpenter, Court). She noted that the APD likely gave Smith a psychological examination when it initially hired him and another when it re-hired him in 2000. See Sept. 24 Tr. at 8:13-9:11 (Carpenter). She stated that she had the “right to those regardless of time frame.” Sept. 24 Tr. at 11:17-18 (Carpenter). The Defendants replied with a different understanding of the scope of this part of the order. See Sept. 24 Tr. at 15:21-18:22 (Griffin).

The Court attempted to resolve this problem by restating the temporal scope of various categories of documents. See Sept. 24 Tr. at 18:24-21:18 (Carpenter, Court, Griffin). The Defendants would need to produce records from third party providers from ten years before the date of the incident to the present. See Sept. 24 Tr. at 18:24-19:2 (Court). Documents of any date under the control of the City of Albuquerque’s contractual psychiatrist/psychotherapist, and created for the City of Albuquerque’s benefit, would be disclosed, although there would likely only be seven years available. See Sept. 24 Tr. at 19:2-25 (Court). Documents under the City of Albuquerque’s direct control in its employment, medical, and any other files would have to be disclosed regardless of date. See Sept. 24 Tr. at 19:2-17 (Court). The Court clarified that “for the City of Albuquerque’s benefit” included visits the City of Albuquerque required Smith to make, but excluded pure employee assistance programs. See Sept. 24 Tr. at 20:1-21:18 (Carpenter, Court). Visits to the City of Albuquerque’s chosen psychiatrist/psychologist would be excluded from disclosure if Smith saw him only for his personal benefit. See Sept. 24 Tr. at 19:2-10 (Court). The same distinction would apply to records at the Department of Veterans Affairs. See Sept. 24 Tr. at 21:22-22:5 (Court).

The Court concluded the hearing by warning Smith that he was choosing a risky strategy. See Sept. 24 Tr. at 27:24-28:9 (Court). If Smith asserted the privilege as to certain documents, the Court explained, it would likely bar him from using those documents to defend himself at trial. See Sept. 24 Tr. at 25:16-26:15 (Court). The Court noted specifically that Dorato appeared to have many of the underlying documents through separate records requests. See Sept. 24 Tr. at 28:4-8 (Court).

5. The MTC.

On October 12, 2015, the Defendants moved for the Court to certify its Order to the Tenth Circuit for interlocutory appeal. See MTC at 1. The Defendants quote the relevant statute:

When a district judge, in making in a civil action an order not otherwise ap-pealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order....

MTC at 1-2 (quoting 28 U.S.C. § 1292(b)). The Defendants first argue that there is a controlling question of law with substantial grounds for difference of opinion. They note that “both parties cited cases from different jurisdictions in support of their respective positions which either supported or did not support the disclosure of this information.” MTC at 2. Their argument centers on whether state or federal privilege law applies to Dorato’s state law claims. See MTC at 2 (citing Vondrak v. City of Las Cruces).

Second, the Defendants complain that the Court arbitrarily, without analysis or explanation: (i) failed to “set any time limitations for the disclosure of records” from the City of Albuquerque and its contractors; and (ii) required the Defendants to provide records from third-party service providers from ten years before the incident to the present. MTC at 3. The Defendants argue that these rulings “deviate! ] from [the Court’s] prior rulings and the ruling by the Chief Magistrate Judge for this District.” MTC at 3.

Dorato responded two weeks later. See Plaintiffs Response in Opposition to Defendant’s Motion to Certify Order for Interlocutory Appeal [Doc. 121], filed October 26, 2015 (Doe. 123)(“Response to MTC”). Dorato emphasizes that certification “should be limited to extraordinary cases in which extended and expensive proceedings probably can be avoided by immediate final decision of controlling questions encountered early in the action.” Response to MTC at 2 (quoting State of Utah By & Through Utah State Dep’t of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir.1994) (citation and quotation marks omitted)). She explains that the question of law is not controlling, because its answer “will not end the matter pending,” given that she has other evidence on Smith’s fitness for duty. Response to MTC at 2 (quoting In re Grand Jury Proceedings June 1991, 767 F.Supp. 222, 225 (D.Colo.1991)). Dorato contends that the Court’s rulings were consistent with its prior opinions and, in any case, even uncertainty on a given issue is “not in itself sufficient to establish a substantial ground for difference of opinion.” Response to MTC at 3 (quoting Adams v. Burlington N.R. Co., 843 F.Supp. 686, 688 (D.Kan.1994)). She also notes that the Defendants will ultimately have adequate recourse through an appeal on a fully developed record. See Response to MTC at 4.

The Defendants replied on November 12, 2015. See Defendants’ Reply to Plaintiffs Response to Defendants’ Motion for the Court to Certify the Court’s Order [Doc. 117] and Pending Memorandum Opinion for Interlocutory Appeal, filed November 12, 2015 (Doc. 134)(“Reply to MTC”). The Defendants state that the Court’s rulings are inconsistent with Motley v. Marathon Oil Co., 71 F.3d at 1551, because “the Tenth Circuit clearly said that state law privileges apply to state causes of action even when there are both federal and state law claims in a case.” Reply to MTC at 1-2. They quote a 2009 Supreme Court decision stating:

The preconditions for § 1292(b) review — “a controlling question of law,” the prompt resolution of which “may materially advance the ultimate termination of the litigation” — are most likely to be satisfied when a privilege ruling involves a new legal question or is of special consequence, and district courts should not hesitate to certify an interlocutory appeal in such cases.

Reply to MTC at 3 (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 110-11, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009)). Finally, the Defendants argue that the Court’s ruling will open a “Pandora’s box” with “special and significant consequences [for] all law enforcement officials and military veterans.” Reply to MTC at 3-4.

6. The Final Hearing.

The Court held a final hearing on the MPO, MCD, and MTC on November 16, 2015. See Transcript of Hearing (taken November 16, 2015)(“Nov. 16 Tr.”). The Court began discussion of the MPO/MCD Order by asking the Defendants to state its most significant error. See Nov. 16 Tr. at 29:5-11 (Court). The Defendants replied that their main objection “is the breadth and scope of the privilege and also the breadth and scope of the documents that the Court has ordered produced that pertain to Mr. Smith’s protected health information.” Nov. 16 Tr. at 29:12-16 (Griffin). First, the Defendants contended that the Court had ordered more discovery than Dorato had requested. See Nov. 16 Tr. at 29:19-25 (Griffin). According to the Defendants, Dorato initially requested only medical records related to Smith’s hearing, but the