Suits claim prosecutors seized therapist's patient files

NAPERVILLE, Ill. (WLS) -- A west suburban psychotherapist who is the target of a criminal prosecution alleges in two lawsuits filed Wednesday that his patient files were illegally seized by DuPage County prosecutors.

In complaints filed in U.S. District Court and in DuPage County Circuit Court, Naperville counselor Robert Moylan claims one thousand of his patient files are being illegally held by the state's attorney's office.

Illinois law makes it clear that therapists' notes are privileged and cannot be used in court proceedings.

"They write their thoughts down in notes and I write my notes down, too. We share these in a file which is protected," Moylan told the ABC7 I-Team. "Besides the counseling records the state took my notes" he said, claiming that the records cover a period of 13 years.

Moylan, who also has an office in Lisle, is currently facing forgery and fraud charges in DuPage County. Authorities say he did not provide court required counseling sessions for several of his patients but signed off and billed insurance for them. He has pleaded not guilty.

A spokesman for the DuPage County state attorney declined to comment on Moylan's allegations of illegal seizure, saying it involves a pending investigation.

Attorney Gregory Kulis represents Moylan and several of his patients. The lawsuits filed on Wednesday allege that authorities unfairly seized confidential files.

"I think they overstepped their bounds," said Kulis. "Mr. Moylan believes his Fourth Amendment rights were violated and his due process was violated."

Illinois law states that patients should be notified if law enforcement agencies obtain their files. Moylan's patients interviewed by the I-Team said they were not notified by authorities.

"It's very personal stuff that I've worked through with Bob," said Moylan patient David Callahan. "Now it's not just myself and Bob that know it, it's myself and Bob and whoever in DuPage County" Callahan said.

"Those are very confidential," said Heine Heininga, another patient who's files were apparently confiscated. "You talk about your inner soul, you talk about your life. I would like to have my files returned with immediate effect" said Heininga.

ABC7 legal analyst Gil Soffer, a former federal prosecutor, said this may be the first time Illinois courts have had to confront this issue.

"On the one hand you've got an Illinois law that makes it very clear that therapists' notes are not judicially discoverable," Soffer said. "On the other hand you have a search warrant in a criminal case that broadly authorizes the state to gather evidence of a crime. And so there is a tension between those two."