The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL
Defendant James Heinrich, M.D. ("Defendant"), filed the instant motion to compel further production of documents on February 10, 2010. The motion was heard on March 12, 2010, before the Honorable Dennis L. Beck, United States Magistrate Judge. Jesse Goodman and E. Daniel Robinson appeared on behalf of Plaintiff Dondi Van Horn ("Plaintiff"). Diana Esquivel appeared on behalf of Defendant. Richard Salinas appeared on behalf of Defendant Tina Dhillon, M.D. Gary Hunt appeared on behalf of Defendant Madera Community Hospital.
The parties and the Court are familiar with the facts underlying this action. In the instant discovery dispute, Defendant moves to compel further production of documents.*fn1
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides as follows: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.... The information sought need not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
A. Requests for Psychiatric Records- Numbers 7, 8, 10 and 11
Requests Numbers 7, 8, 10 and 11 seek production of mental health records from various providers. Plaintiff objects mainly on the basis of privilege.
Federal courts recognize a psychotherapist privilege. Jaffee v. Redmond, 518 U.S. 1, 12 (1996) (psychotherapist privilege serves the public interest by facilitating appropriate treatment). A plaintiff may waive the privilege if his/her claims put privileged information at issue. See Samaan v. Sauer, 2008 WL 214680, *2 (E.D.Cal. Jan. 24, 2008); see also Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D.Pa. 1997).
While there are different approaches to determining waiver of the psychotherapist privilege within the Ninth Circuit, this Court adheres to the middle ground approach. The Court will find a waiver when the plaintiff has done more than allege "garden variety" emotional distress, such as alleging a resulting psychiatric disorder or unusually severe emotional distress. See eg. Williams v. Troehler, 2010 WL 121104 (E.D.Cal. 2010) (finding no waiver after plaintiff withdrew claim for intentional infliction of emotional distress and any claim of actual psychiatric injury or aggravation of an existing mental health condition); Valentine v. First Advantage Saferent Inc., 2009 WL 3841967 (C.D.Cal. 2009) (finding no waiver under either the narrow approach or middle ground approach where plaintiff did not plead a cause of action for intentional or negligent infliction of emotional distress, did not allege a specific psychiatric injury or disorder or unusually severe emotional distress, and agreed that he would not testify that he sought or obtained psychological treatment and would not call his psychiatrist as a witness).
Here, Plaintiff argues that the type of distress alleged is "precisely the 'ordinary or commonplace' type of distress that anyone would expect to suffer upon the loss of an infant child." Joint Statement, at 11. She also contends that she has not alleged a claim for intentional infliction of emotional distress and does not claim exacerbation of any pre-existing psychiatric condition. As such, Plaintiff contends that her allegations amount to no more than garden variety emotional distress that should not constitute a waiver of the privilege.
Despite Plaintiff's characterization of her claims, she alleges "severe" emotional trauma as a direct result of Defendants' alleged actions. For example, in her Fourth Amended Complaint ("FAC"), Plaintiff alleges that as a result of Defendants' actions, she "suffers and continues to suffer severe emotional distress because of the loss of her child." FAC, ¶ 58. She further contends that Defendants, including Dr. ...