Foster’s attorneys seek documents

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Courts > Questions surround Schamber’s reasons for failing to answer subpoenas

By Tris DeRoma

Attorneys representing clients being subpoenaed by the attorneys representing former Los Alamos Police Commander Randy Foster met again in district court last week.
This time, the issue was whether Foster’s attorneys can compel a psychologist who was treating former officer Brian Schamber to hand over documents related to his treatment for trial.
In his argument against handing over the documents, David Berlin, an attorney representing psychologist Bradford Richards, referenced a court decision that successfully prevented another doctor from handing over documents in a similar case.
“...It’s to protect confidential communications made during treatment of a patient’s mental or emotional condition from disclosure during court proceedings, the precise thing the plaintiff is trying to do now, is what this rule was sought to prevent,” said Berlin in district court Tuesday. Berlin also used other legal arguments in other cases to further his argument.
Judge Raymond Ortiz however said that in this case, the consultation given the nature of the circumstances, was “quasi public” and so release of the documents should be considered.
“This was really a quasi public consultation, in the sense that the nature of the consultation was intended to be disclosed to third party individuals and third party entities because of the nature of the consultation, ” Ortiz said to Berlin.
Berlin then narrowed the scope of his argument, saying that while the intent of the visit was to determine if Schamber could or could not return to work, it didn’t mean that the “third parties” should know the exact conversation that took place between them.
“He could ‘return’ to work, The mere fact that he was sent to a psychologist, if that’s true, doesn’t negate his (doctor-patient) privilege if the only information that’s supposed to be transmitted back to his employer is that he’s able to go back to work,” he said. “That doesn’t violate the privilege of the employee because it doesn’t get into specific communications.”
Berlin also said that the subpoena for documents was sent to Schamber by regular mail instead of certified mail, which may or may not mean that Schamber was aware of what was being requested of him or his doctor, adding that they have no official confirmation that Schamber OK’d release of the documents Foster’s attorneys are requesting.
Ortiz replied that Schamber does know about the proceedings through his former attorney, John Day, as there were many similar motions relating to document releases since the case was filed by Foster almost two years ago.
One of Foster’s attorneys at the motion hearing, George Geran, told Judge Ortiz that he was reluctant to send Schamber a subpoena for documents by certified mail because that would have allegedly given Schamber an alert to avoid certified mail.
However, he also said that he sent Schamber’s then attorney, Day, the same requests they sent to Schamber, so there’s no reason why Schamber couldn’t know what’s going on concerning Richards’ treatment of Schamber.
“I firmly believe that Mr. Schamber is well aware that we are seeking his medical records and have been for four or five months now, and we haven’t received a single word of protest from him,” Geran said at the motion hearing, adding that even though Day seems to no longer be Schamber’s attorney, he isn’t making any protests, either.
The Los Alamos Monitor could not confirm if Day is still representing Schamber in this case.
He also said that even if Schamber’s psychologist did invoke client-patient privilege, “he’s obligated at least to provide us with the dates of the treatment, which would be enormously helpful to ascertain exactly when Dr. Bradford Richards treatment started,” he said, and to what extent it was implicated in these other proceedings,” he said. “...if doctors and/or client’s patients want the law to function and want these records to be confidential then they should be willing to provide accurate information, not about the substance of anything...that would make our mutual job here today a heck of a lot easier.”
He also said that “if he (Schamber) would just send a letter to the court we’d have some degree of clarity.”
Berlin asked the judge to give his client’s patient, Schamber, the benefit of the doubt, even though he may not be communicating with Day anymore.
“Schamber hasn’t responded. Is he ducking it? Maybe, but we don’t know and deeming a waiver of the privilege,” assuming Schamber is OK with handing over the documents to Foster’s attorneys, “…is too great a leap to take until we’re sure he has notice, then his silence may possibly be deemed to constitute a waiver if that’s the case” Berlin said.
Ortiz delayed the decision to give Berlin a week to come up with a “privilege log,” a document that will further identify the disputed documents, enabling the court to be more selective in what it may approve at a future date what can be released to Foster’s attorneys and what should stay under doctor-patient privilege.
In January 2014, Foster filed a lawsuit against Los Alamos County, accusing the county of wrongly terminating him over his handling of Schamber’s allegedly threatening behavior toward his fellow officers as well as the public at large.
Foster had Schamber involuntarily committed to a mental health facility, an action that now former officer Schamber later sued the county over and won a settlement of $600,000. At the time the incident occurred, Foster had been assuming the duties of police chief when police then chief Wayne Torpy suddenly fell ill and left on sick leave.
Foster is accusing the county of firing him in an effort to appease Schamber and is seeking compensation for wrongful compensation.