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FITZGERALD v. CASSIL

July 31, 2003

PATRICK FITZGERALD, ET AL., PLAINTIFFS,
v.
ROBERT CASSIL, ET AL., DEFENDANTS



The opinion of the court was delivered by: Edward Chen, Magistrate Judge

ORDER GRANTING PLAINTIFFS' MOTION TO QUASH SUBPOENAS SEEKING PLAINTIFFS' MEDICAL AND PSYCHOTHERAPY RECORDS (Docket No. 32)
Plaintiffs Patrick Fitzgerald, Daniel Yu, and their adopted son, Declan Fitzgerald-Yu (collectively "Plaintiffs") filed suit against Robert Cassil, Hawthorne/Stone Real Estate Investments, Inc., and Donald Simmons (collectively "Defendants") for, inter alia, violation of the Fair Housing Act, 42 U.S.C. § 3604, and various state laws. Plaintiffs allege that Defendants have discriminated against them on the basis of familial status. In their complaint, Plaintiffs claim that Mr. Fitzgerald and Mr. Yu suffered emotional distress and attendant bodily injury as a result of Defendants' conduct. Defendants subsequently subpoenaed the medical and psychological records of Mr. Fitzgerald and Mr. Yu. Plaintiffs now move to quash the subpoenas, issued to Maggie Hochfelder, M.F.T.; Christa Donaldson, M.F.T.; Thomas Caldarola, M.F.C.C.; and California Pacific Medical Center.

Having reviewed the briefs, the accompanying submissions, and the record in this case, and having considered the oral argument of counsel on July 16, 2003, and good cause appearing therefor, the Court hereby GRANTS Plaintiffs' motion to quash the subpoenas. [ Page 2]

I. FACTUAL BACKGROUND

Mr. Fitzgerald and Mr. Yu, along with their adopted son Declan, live at the Gaiser Court Apartments ("Apartments") in San Francisco, which are owned and/or managed by Defendants. In their complaint, Plaintiffs allege the following facts: Mr. Fitzgerald and Mr. Yu informed Mr. Simmons, the resident manager of the Apartments, that they were going to adopt a son. Mr. Simmons stated that he did not want children in the complex. Declan's adoption was finalized in December 2000, at which time he was approximately five months old. After Declan moved in, Mr. Simmons made several comments about how Plaintiffs should move out of the Apartments because of Declan. Mr. Simmons also said that he did not want Declan to play in the courtyard of the Apartments. In March 2002, there were three incidents during which Mr. Simmons expressed his hostility toward Plaintiffs. All three incidents involved Declan's riding, pushing, or carrying a plastic toy car in the courtyard with Mr. Fitzgerald and/or Mr. Yu. All three incidents involved Mr. Simmons yelling at Declan, Mr. Fitzgerald, and/or Mr. Yu. On the third occasion, Mr. Simmons used profanity in Declan's presence.

In Plaintiffs' complaint, Mr. Fitzgerald and Mr. Yu claimed emotional distress and attendant bodily injury, including headaches and sleep loss, as a result of these events. Plaintiffs expanded on the emotional distress in their initial disclosures, which were incorporated into their interrogatory responses. See Kreps Decl., Exs. C-D (interrogatory responses of Mr. Fitzgerald and Mr. Yu, respectively). More specifically, Plaintiffs stated that the emotional distress damages of Mr. Fitzgerald were: depression, anger/irritability, discouragement, nervousness, sleep loss, withdrawal, relived experience, and low self-esteem. See id., Ex. B (Plaintiffs' initial disclosures). Plaintiffs stated that the emotional distress damages of Mr. Yu were: anger/irritability, discouragement, nervousness, sleep loss, relived experience, and arguing with his partner. See id.

Subsequently, Defendants sought to depose both Mr. Fitzgerald and Mr. Yu. At the depositions, Mr. Fitzgerald and Mr. Yu testified about the emotional distress they experienced as a result of the encounters with Mr. Simmons. See Cristol-Deman Decl., Exs. 1-2 (depositions of Mr. Fitzgerald and Mr. Yu, respectively). Defendants then served four subpoenas on the medical providers and psychotherapists identified by Mr. Fitzgerald and Mr. Yu during the depositions. The subpoenas sought the following documents: [ Page 3]

"Any and all medical records, including prescriptions, diagnosis, treatment, notes, correspondence, and billing, for any and all medical and/or mental health services provided, including but not limited to psychiatric, psychological, counseling, and group therapy pertaining to the plaintiff [Mr. Fitzgerald and/or Mr. Yu] from first date to and including the present."
Mot. at 1 (quoting subpoenas). Plaintiffs now move to quash the subpoenas, asserting that they are not relevant and that they are privileged.

II. DISCUSSION

Plaintiffs argue that the subpoenas should be quashed because: (1) the medical and psychological records of Mr. Fitzgerald and Mr. Yu are not relevant, (2) the records are protected by the psychotherapist-patient privilege, which has not been waived, (3) the records are protected by the right to privacy, and (4) the records should be protected as a matter of policy or else civil rights litigants will be dissuaded from bringing claims. In response, Defendants contend that: (1) Plaintiffs waived the psychotherapist-patient privilege by claiming emotional distress damages and special damages in their complaint, (2) Plaintiffs have alleged not only a violation of their civil rights but also state law violations such as negligence for which special damages may be awarded, and (3) Defendants will be prejudiced without the discovery because the records may reveal other causes for the emotional distress and inform the magnitude of the distress, if any, attributable to Defendants.

A. Relevance

As a preliminary matter, the Court notes that there are two types of records at issue: medical and psychological. To the extent any medical records involve mental health (including physical conditions tied to mental health), they are considered psychological records for purposes of this motion. All other medical records are "pure" medical records. In the subpoenas, Defendants sought both psychological and pure medical records.

Plaintiffs argue that neither the psychological records of Mr. Fitzgerald and Mr. Yu nor the pure medical records are relevant. The Court agrees that the pure medical records are not relevant because Mr. Fitzgerald and Mr. Yu have not made any claim for bodily injury other than that directly and immediately linked to emotional distress. Plaintiffs do not claim that Mr. Fitzgerald and Mr. Yu received any medical treatment for any purely physical injury or disorder. As Defendants conceded at oral argument, Mr. [ Page 4]

Fitzgerald and Mr. Yu have not put their physical conditions (as revealed in the pure medical records) at issue in this suit.

However, the Court finds that the psychological records are relevant. Federal Rule of Civil Procedure 26(b)(1) provides a broad definition of relevance for purposes of discovery: "Parties may obtain discovery regarding any matter, not privileged that is relevant to the claim or defense of any party. . . . Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1); see also Wright & Miller, Federal Practice & Procedure § 2008 (noting that, even after 2000 amendment to Rule 26(b)(1), standard "is still a very broad one"). The psychological records are relevant in determining, among other things, causation for (i.e., whether there were other unrelated sources for Mr. Fitzgerald and Mr. Yu's emotional distress) or the magnitude of the alleged distress.

B. Psychotherapist-Patient ...


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