In re: Sealed Case

Before: SENTELLE, TATEL, and GARLAND, Circuit Judges . Opinion for the court filed by Circuit Judge GARLAND. GARLAND, Circuit Judge : The appellant, an adult male who

is a committed ward of the District of Columbia Mental Retardation and Developmental Disabilities Administration (MRDDA), appeals from a district court order requiring MRDDA to produce all of his records to counsel for plaintiffs who are suing MRDDA and the District. We conclude that the court abused its discretion by ordering production of the records without determining whether any are subject to the federal psychotherapist privilege recognized in Jaffee v. Red- mond , 518 U.S. 1 (1996), and without weighing the probative value of the non-privileged records against the extent of the intrusion into the appellants legitimate privacy interests. We therefore vacate the order and remand for further pro- ceedings.

I

The plaintiffs in the district court the appellees here are two mentally retarded adult men who are wards of the District of Columbia government and for whose care and well-being MRDDA is responsible. Compl. ¶¶ 1, 9. For several years during the 1990s they lived in a residential group home at 2303 Minnesota Avenue, S.E. The appellant here also is a mentally retarded adult man and committed ward of the District. Appellants Br. at 1. He lived in the same group home beginning in mid1997.

According to the complaint, the appellant sexually assault- ed the plaintiffs at the group home. Compl. ¶¶ 12, 15. The complaint further alleges that, although the resident director of the facility notified District officials of those assaults, the District did nothing to protect the plaintiffs until it moved the appellant to another facility on August 31, 1998. The plain- tiffs seek damages from the District under 42 U.S.C. § 1983 for violating their civil rights, and under various District of Columbia causes of action, including negligence.¹ The com- plaint asserts that the district court has federal question jurisdiction over the § 1983 claim, see Compl. ¶ 2 (citing 28 U.S.C. § 1331), and supplemental jurisdiction over the local law claims, id. (citing 28 U.S.C. § 1367(a)).

During pre-trial proceedings, the plaintiffs moved to com- pel production of the District of Columbias complete files on the appellant. The District took no position on whether the files should be produced, either at that time or subse- quently. On October 11, 2002, the district court granted the motion, directing that the files of [appellant] shall be pro- duced for inspection by the plaintiffs counsel, and requiring that they be treated as confidential and used only TTT in connection with this litigation. Order, No. 02401 (D.D.C. Oct. 11, 2002) (hereinafter October 2002 Order).

Thereafter, the appellants guardian ad litem, appointed by the Superior Court of the District of Columbia, entered a special appearance to represent the appellant in connection with the requests for his medical and ward files. Objecting to the breadth of the district courts discovery order, and contending that the documents were subject to a number of privileges, the guardian filed a motion for reconsideration and for a more extensive protective order pursuant to Federal Rule of Civil Procedure 26(c). Unconsented Mot. for Ct. to Reconsider at 1. On February 14, 2003, the district court denied the motion to reconsider and ordered that defendant District of Columbia shall produce the relevant medical rec- ords of [appellant] to plaintiffs counsel in accordance with the prior Order of this Court TTTT Order, No. 02401 (D.D.C. Feb. 14, 2003) (hereinafter February 2003 Order).

The plaintiffs then asked the court for clarification, con- tending that the District should produce the appellants en- tire file, regardless of whether the records were relevant or medical. 5/15/03 Tr. at 3, 4, 12. At a hearing conducted on May 15, 2003, the plaintiffs insisted that they were enti- tled to receive any documents that might reasonably lead to the discovery of admissible evidence, and that they did not want someone else saying, Well, we dont think this is relevant when we might in fact think it is relevant. Id. at 12. The appellants guardian objected on the ground that some of the documents were privileged and confidential, and that the court had not weighed the plaintiffs interest in the documents against the appellants privacy interest. Id. at 5 11. The court nonetheless granted the plaintiffs request and directed that their counsel be allowed to review the entire file and to tab those records that he believes will serve his evidentiary purposes in connection with this case. Id. at 15. The court further instructed plaintiffs counsel to prepare a written order, which the court entered on August 7, 2003. The order stated:

[T]he mental retardation records of [appellant], including medical records and case notes, in the possession of defendant District of Columbia [shall] be made available to counsel for plaintiffs for review. Counsel for plaintiffs shall designate which records are to be produced in connection with this case TTTT

Order at 12, No. 02401 (D.D.C. Aug. 7, 2003) (hereinafter August 2003 Order).

The appellant, through his guardian ad litem, appealed the August 2003 Order requiring production of his MRDDA files.² On October 28, 2003, another panel of this court granted a stay of production pending appeal. We now consider the issues raised by the appellant.

II

We begin with a question of appellate jurisdiction. Plain- tiffs-appellees contend that we lack jurisdiction because the district courts order was merely an interlocutory discovery order, rather than a final order subject to our review pursu- ant to 28 U.S.C. § 1291. Ordinarily, a decision is not consid- ered final under § 1291 unless it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 712 (1996) (internal quotation marks omitted). Under the collateral order ( Cohen ) doctrine, however, an order qualifies as final under § 1291 if it: (1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue com- pletely separate from the merits of the action, and (3) [is] effectively unreviewable on appeal from a final judgment. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc ., 506 U.S. 139, 144 (1993) (internal quotation marks omitted); see Cohen v. Beneficial Indus. Loan Corp ., 337 U.S. 541, 546 (1949).

The application of the collateral order doctrine to the discovery order at issue here is controlled by our recent decisions in United States v. Philip Morris Inc. , 314 F.3d 612 (D.C. Cir. 2003), and In re England , 375 F.3d 1169 (D.C. Cir. 2004). In those cases, we concluded that orders compelling production of allegedly privileged information satisfied the three criteria for collateral review. See Philip Morris , 314 F.3d at 61516 (attorney-client privilege); England , 375 F.3d at 117576 (statutory non-disclosure provision covering Navy selection board proceedings); see also Pearson v. Miller , 211 F.3d 57, 64 (3d Cir. 2000) (holding that the collateral order doctrine permitted appeal from an order compelling the pro- duction of records relating to the violent sexual proclivities of an individual, where the individual contended the records were protected by state and federal privileges). The same analysis applies to the order in this case, which overrode the appellants claims of a number of privileges.

First, by compelling production notwithstanding the appel- lants claims of privilege, the order conclusively and finally determined that the documents were not protected from disclosure to plaintiffs counsel by any privilege. Philip Morris , 314 F.3d at 617. As in Philip Morris , [i]n no way does the record suggest that the district courts conclusion is tentative or subject to revision. Id. The plaintiffs dispute the conclusiveness of the district courts order on the ground that it requires disclosure only to counsel; disclosure for use at trial requires a further decision by the court. But the order is final with respect to that initial disclosure, and if the documents are privileged a point we must accept as true for purposes of deciding this jurisdictional question an involuntary disclosure to the plaintiffs counsel breaches the privilege. Although the appellant may suffer additional inju- ry if additional disclosure is later permitted, that does not diminish the original injury or make the courts authorization of it any less final.

Second, the issue is both completely separate from the merits and important. Just as was the case for the attorney- client privilege in Philip Morris , the privilege question here is separable from the merits of the underlying case. Id.; see England , 375 F.3d at 1175. And like the attorney-client privilege, the privileges at issue here are important in Cohens sense, in that they are weightier than the societal interests advanced by the ordinary operation of final judg- ment principles. Digital Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 879 (1994). As we discuss below, the appellants privilege claims fall into two categories: the feder- al psychotherapist privilege and D.C. statutory medical- records privileges. The Supreme Court has determined that the psychotherapist privilege is important enough to rank with the attorney-client privilege as one of only a handful of privileges cognizable under Federal Rule of Evidence 501. Jaffee , 518 U.S. at 910. Like the spousal and attorney- client privileges, the Court said, the psychotherapist-patient privilege is rooted in the imperative need for confidence and trust, and promotes sufficiently important interests to out- weigh the need for probative evidence. Id. at 910 (internal quotation marks omitted). The District of Columbia has similarly indicated the importance it attaches to the other (perhaps overlapping) privileges claimed by the appellant by specifically according them statutory protection. Cf. Eng- land , 375 F.3d at 1176 (noting that a federal statutory non- disclosure provision was an indication of the importance of a protected interest for purposes of the Cohen doctrine); Pear- son , 211 F.3d at 64 (concluding that a claim that state statutory confidentiality provisions should be recognized as federal evidentiary privileges was important for purposes of Cohen ).

Third, the order will be effectively unreviewable on appeal from a final judgment. The district court has ordered the District of Columbia to turn over the appellants records to plaintiffs counsel. The District has indicated that, absent our intervention, it will follow that order. See Am. Notice of Defs. Regarding Production of Records at 1. At that point, the entirety of the [records] will have been disclosed to third parties, making the issue of privilege effectively moot. Phil- ip Morris , 314 F.3d at 619. As our prior cases have re- peatedly noted, appeal after final judgment is obviously not adequate in [privilege] cases the cat is out of the bag. England , 375 F.3d at 1176 (quoting In re Papandreou , 139 F.3d 247, 251 (D.C. Cir. 1998)); see Philip Morris , 314 F.3d at 619 (same).

We therefore conclude that the criteria for invocation of the collateral order doctrine are satisfied, and that we properly have jurisdiction over appellants appeal. We note that ap- pellate jurisdiction is also supported here by the rationale of the Perlman doctrine, which holds that a discovery order directed at a disinterested third party is treated as an imme- diately appealable final order because the third party presum- ably lacks a sufficient stake in the proceeding to risk con- tempt by refusing compliance. Church of Scientology v. United States , 506 U.S. 9, 18 n.11 (1992) (citing Perlman v. United States , 247 U.S. 7, 13 (1918)). Although the document custodian in this case, the District of Columbia, is not a disinterested third party, we have applied Perlman when one party seeks documents in the hands of another and a nonparty claims to possess a privilege in the documents. See United States v. AT&T , 642 F.2d 1285, 1296 (D.C. Cir. 1980) (holding that an appeal should be permitted because the nonparty appellant was not the object of the document demand and could therefore not possibly refuse disclosure and undergo a contempt citation as a means to appeal).³ Moreover, whatever the Districts degree of interest in the disposition of the documents, it has raised no objection to producing them and, to the contrary, has unequivocally stated its intention to do so upon court order. See In re Sealed Case , 146 F.3d 881, 883 (D.C. Cir. 1998) (holding that [t]he Perlman doctrine applies here because the [custodian] swore TTT an intention to produce the documents rather than submit to a contempt citation).⁴

III

In this Part, we consider the appellants claims of privilege regarding the documents subject to the district courts discov- ery order. We review a district courts discovery rulings for abuse of discretion. Macharia v. United States , 334 F.3d 61, 64 (D.C. Cir. 2003); Food Lion, Inc. v. United Food & Commercial Workers Intl Union , 103 F.3d 1007, 1012 (D.C. Cir. 1997). Because a district court by definition abuses its discretion when it makes an error of law, the abuse-of- discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions. Koon v. United States , 518 U.S. 81, 100 (1996) .

In subpart A, we consider whether federal or state privi- lege law applies to the district courts discovery order.⁵ In subpart B, we examine the federal psychotherapist privilege. In subpart C, we address the appropriate disposition for those documents that, although outside the scope of the federal privilege, implicate the privacy concerns reflected in District of Columbia statutory privileges.

A

Rule 501 of the Federal Rules of Evidence states:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of deci- sion, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

FED. R. EVID.^501.6 It is thus clear that when a plaintiff asserts federal claims, federal privilege law governs, but when he asserts state claims, state privilege law applies. What is unclear is the proper resolution in a case like this, where the plaintiffs assert both federal and state claims, and relevant evidence may be privileged under one but not the other. See Jaffee , 518 U.S. at 17 n.15 (noting the problem but finding its resolution unnecessary to decide that case); 23

CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR., FEDERAL

PRACTICE AND PROCEDURE § 5434, at 86164 (2d ed. 1980 &

Supp. 2004) (hereinafter WRIGHT & GRAHAM) (noting uncertain

legislative history and suggesting various methods of resolu-

tion).

The usual solution by the courts in such cases has been a preference for federal privilege law when it conflicts with

state privilege law. 3 JOSEPH M. MCLAUGHLIN ET AL., WEIN-

STEIN S FEDERAL EVIDENCE § 501.02[2][c], at 50114 (2d ed.

2004) (hereinafter WEINSTEINS) (collecting cases).⁷ There is

much to be said for this approach. Where a document is

relevant to both federal and state claims but the federal and

state privilege rules are inconsistent, the application of an

inconsistent state rule in either direction could undermine the

federal evidentiary interest either by barring disclosure of

a document that federal law permits a party to see, or by

requiring the disclosure of a document that federal law

protects from prying eyes. At least with respect to discov-

ery, it would be meaningless to hold the communication

privileged for one set of claims and not for the other.

Memorial Hosp. , 664 F.2d at 1061 n.3.⁸ And where the

primary source of the courts jurisdiction is the federal claim,

to which the state claim is merely pendent (supplemental), it

seems appropriate that the federal evidentiary interest

whether in privilege or production should be primary as

well.

Unfortunately, neither the district court nor the parties have addressed this question, and we hesitate to decide it conclusively (and for the first time in this circuit) without the benefit of briefing. Fortunately, it does not appear that we have to do so to resolve this appeal. As we discuss below, the federal psychotherapist privilege requires the withholding of some documents (if they exist) as absolutely privileged, and the D.C. statutes appear to be at least as protective. See infra note 9. Whether or not additional documents are subject to privilege under state law, Federal Rule of Civil Procedure 26 at least requires the district court to weigh the appellants privacy interest in those documents against the plaintiffs need for them before it orders production. Because the court did not undertake such a weighing, a remand is required in any event. Until that weighing is complete and the court decides which (if any) documents still must be produced over the appellants objection, we need decide nei- ther whether a state privilege would cover such hypothetical documents, nor (if it would) whether state privilege law is applicable to the plaintiffs claims.

B

In Jaffee v. Redmond , the Supreme Court held that confi- dential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure including from com- pelled production pursuant to pretrial discovery under Rule 501. 518 U.S. at 15; see id. at 6. The Court also extended this federal psychotherapist privilege to confiden- tial communications made to licensed social workers in the course of psychotherapy. Id. at 15. Thus, any conversa- tions between the appellant and a licensed psychotherapist or social worker and the notes taken during their counseling sessions are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence. Id. at 6, 18. District of Columbia statutory provisions appear to provide a privilege at least as broad.⁹

Although the district court did not address Jaffee directly, it did state generally that privileges are qualified or condi- tional for a number of reasons, including in the interests of justice. See 5/15/03 Tr. at 10. That statement is incorrect with respect to the psychotherapist privilege. In Jaffee , the Court flatly rejected the suggestion that the privilege was subject to balancing. 518 U.S. at 17. Making the promise of confidentiality contingent upon a trial judges later evalua- tion of the relative importance of the patients interest in privacy and the evidentiary need for disclosure, the Court said, would eviscerate the effectiveness of the privilege. Id . Accordingly, the district court may not permit the plaintiffs counsel to see materials covered by this privilege, regardless of its assessment of the interests of justice.

The appellants guardian has represented that she has reviewed the appellants MRDDA files, and that they do contain confidential communications to mental health workers in the course of psychotherapy. Oral Arg. Tape at 2:102:25. We, of course, do not know whether that is correct. But the district court and plaintiffs did not know either. Nonetheless, the court ordered disclosure of all of the appellants records, without regard to their content and without screening them in any way. Because that order could compel the disclosure of material subject to a federal privilege, it constitutes an abuse of the district courts discretion.

C

The federal psychotherapist privilege recognized in Jaffee extends no further than confidential communications between licensed mental health professionals and their patients. Jaf- fee , 518 U.S. at 15; see id. at 10. The appellant cites no other federal privilege, but does cite several provisions of the D.C. Code that appear to extend privacy protection to appellants files well beyond the protection accorded by Jaffee . See supra note 9. We have been unable to find District of Columbia cases that delineate the scope of those asserted statutory privileges in any way that is relevant here.¹⁰ But regardless of whether the statutory provisions afford privi- leges that would of themselves bar disclosure of documents in the appellants file, those provisions should at least inform a district courts determination of whether to compel production of the documents under Federal Rule of Civil Procedure 26.

Rule 26(b)(1), under which the plaintiffs sought discovery of the appellants file, provides as follows:

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party TTTT For good cause, the court may order discov- ery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissi- ble at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii) .

FED. R. CIV. P. 26(b)(1) (emphasis added). The last sentence of Rule 26(b)(1) was added in 2000 to emphasize the need for active judicial use of subdivision (b)(2) to control excessive discovery. FED. R. CIV. P. 26(b)(1) advisory committees note ^(2000).11 Subdivision (b)(2) entitled Limitations in turn provides:

[The] extent of use of the discovery methods otherwise permitted under these rules TTT shall be limited by the court if it determines that TTT (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, TTT the impor- tance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).

FED. R. CIV. P. 26(b)(2). Finally, Rule 26(c), entitled Protec-

tive Orders and referred to in the last sentence of subdivi-

sion (b)(2), authorizes the court,

for good cause shown, TTT [to] make any order which justice requires to protect a party or person from annoy- ance, embarrassment, oppression or undue burden or expense, including one or more of the following: TTT (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters TTTT

FED. R. CIV. P. 26(c).

As a whole, Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly. Crawford-El v. Brit- ton , 523 U.S. 574, 598 (1998). And [i]t is appropriate for the court, in exercising its discretion TTT , to undertake some substantive balancing of interests TTTT Laxalt v. McClatchy , 809 F.2d 885, 890 (D.C. Cir. 1987); see United States v. Microsoft Corp. , 165 F.3d 952, 960 (D.C. Cir. 1999) (holding that Rule 26(c)s good cause standard TTT is a flexible one that requires an individualized balancing of the many inter- ests that may be present in a particular case). In particular, [a]lthough [Rule 26(c)] contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule. Seattle Times Co. v. Rhinehart , 467 U.S. 20, 35 n.21 (1984). Hence, in exercising their discretion under the rule, courts have long recognized that interests in privacy may call for a measure of extra protection, even where the information sought is not privileged. FED. R. CIV. P. 26(b) advisory committees note (1970) (referring to income tax returns, which are generally held not privileged); see Pear- son , 211 F.3d at 72 (holding that [l]egitimate interests in privacy are among the proper subjects of Rule 26(c)s protec- tion).

Moreover, in determining which interests to weigh in the Rule 26 balance, courts look to statutory confidentiality provi- sions, even if they do not create enforceable privileges. In Laxalt v. McClatchy , for example, we noted that, although the Privacy Act, 5 U.S.C. § 552a, did not create a qualified discovery privilege, the fact that a document was subject to the Act was not irrelevant to the manner in which discovery should proceed. 809 F.2d at 889. To the contrary, we held that [w]here the actual content of the record has the poten- tial to cause harm to the affected party, a court supervising discovery should consider this factor in determining how to exercise its traditional authority to limit disclosure. Id. at 890; see also Microsoft , 165 F.3d at 95960.

The Seventh Circuit made a similar point in a case raising issues close to those we face here. In Northwestern Memori- al Hospital v. Ashcroft , a district court had quashed a sub- poena for patients medical records based on a state eviden- tiary privilege (which, the district court held, trumped a less stringent federal regulation pursuant to the operation of a specific federal statute). 362 F.3d 923, 92427 (7th Cir. 2004). Relying on Rule 501, the court of appeals held that the state evidentiary privilege did not apply in a suit to enforce federal law. Id. at 926. Nonetheless, relying on a provision of Rule 45 (governing subpoenas) similar to Rule 26(b)(2)(iii) and (c),¹² it affirmed the district courts disposition because there was only the possibility that the records might have something probative in them, while their disclosure would cause the loss of privacy by the patients, id. at 927. Particularly relevant here, the Seventh Circuit held that [t]he fact that quashing the subpoena comports with Illinois medical-records privi- lege was a factor in favor of the district courts action. Id. at 932. Comity, the court said, did not require it to apply the Illinois privilege, but did require it to consider with special care the arguments for quashing the subpoena on the basis of relative hardship under Fed. R. Civ. P. 45(c). Id. at 933.

In sum, as the Third Circuit has likewise held, even where an evidentiary privilege is not available, a party may petition the court for a protective order that limits discovery in accordance with Rule 26(c). Pearson , 211 F.3d at 65. And the court, in its discretion, is authorized by this subsection to fashion a set of limitations that allows as much relevant material to be discovered as possible, while preventing unnec- essary intrusions into the legitimate interests including privacy and other confidentiality interests that might be harmed by the release of the material sought. Id. ; see id. at 61 (holding that, although a state mental-health-records privi- lege was inapplicable, the appellants had legitimate concerns regarding the confidentiality of the information sought that should be addressed in the context of the District Courts power to impose reasonable limits on the discovery of infor- mation pursuant to Federal Rule of Civil Procedure 26(c)).

In this case, the district court undertook no balancing of competing interests at all. As its August 2003 Order makes clear, it required production of the appellants entire MRDDA file regardless of whether the material was privileged, regardless of whether it was relevant to a claim or defense, regardless even of whether it was relevant to the subject matter of the case. August 2003 Order at 12. At the request of plaintiffs counsel, the preceding (February 2003) orders requirement of relevancy was jettisoned, and plain- tiffs counsel was effectively deputized by the court to review the records and determine which were relevant. See 5/15/03 Tr. at 1516 (directing that plaintiffs counsel be allowed to review the entire file and to tab those records that he believes will serve his evidentiary purposes).

The scope of this intrusion into the appellants privacy is breathtaking. The court directed that plaintiffs counsel be permitted to review all records referred to in District of Columbia Code section 71305.12. 5/15/03 Tr. at 16. As the appellants guardian correctly complained, and as the portion of the statute set out in the margin makes manifest, that section covers records involving every area of the severely mentally-retardeds lives. Id. at^6.13 There may well be documents within that universe that are highly relevant to the plaintiffs case because they afford evidence of notice to the District of Columbia that, as alleged in the complaint, [the appellant was] a sexual predator who was a threat to the plaintiffs. 5/15/03 Tr. at 4 (explanation by plaintiffs counsel of the relevance of the requested documents). And the probative value of such documents may well outweigh the appellants privacy interests. But it would be surprising if there were not also documents that although hugely invasive of the appellants privacy are of only marginal relevance. And it would also be surprising if there were not others that while equally intrusive have nothing at all to do with the plaintiffs claims. By treating all of the MRDDA documents alike, and thereby failing to weigh the appellants privacy interest in a record against the records value to the plaintiffs, the district court abused the discretion conferred upon it by Rule 26. See In re Sealed Case , 856 F.2d 268, 272 (D.C. Cir. 1988) (holding that [a]lthough a district court has considerable leeway in weighing the different factors, the failure to balance at all requires remand) (internal citation omitted); LaSalle Extension Univ. v. FTC , 627 F.2d 481, 484 (D.C. Cir. 1980) (holding that the district court abuses [its] discretion when it fails to weigh the relevant factors).

IV

We conclude that the district court abused its discretion by requiring the District of Columbia to produce all of the appellants mental retardation records to counsel for the plaintiffs, August 2003 Order at 1, without protecting any records that may be subject to the federal psychotherapist privilege, and without weighing the appellants privacy inter- ests against the plaintiffs evidentiary need for the remaining records. We therefore vacate the courts order and remand the case for further proceedings.

On remand, the district court has a number of options. It may, for example, permit the appellants guardian to conduct an initial screening and produce any documents she concludes are not privileged or confidential. As to any withheld docu- ments, the court may require the guardian to produce the privilege log described in Rule 26(b)(5).¹⁴ If the log is insufficient to enable the court to resolve the issue, it may review the withheld documents in camera^.15 And if the volume of withheld documents is too large for the courts own review, the court may delegate the task to a magistrate judge.¹⁶ But whether the district court employs this proce- dure or one of its own devise, it may not compel production of the appellants records without determining whether any are subject to a federal privilege, and without weighing the probative value of each of the non-privileged documents against the extent of the intrusion into the appellants legiti- mate privacy interests.

Vacated and remanded .