The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, who is proceeding with retained counsel, brings this civil action. Pending before the court is plaintiff's motion to quash third-party subpoenas (Doc. 19). The matter was heard before the undersigned on January 9, 2013, at 10:00 a.m. in Redding, California. John Dugan Barr, Esq., appeared for plaintiff. Carrie Ann Frederickson, Esq., appeared for defendants. After considering arguments, the matter was submitted.
A. Plaintiff's Allegations
Plaintiff alleges that, on May 29, 2010, she was arrested by City of Anderson police officer Goodwin. After the arrest, Goodwin "delivered custody of plaintiff" to fellow officer Bryan Benson, who is not a defendant to this action. Plaintiff claims that the purpose of the transfer was to allow Benson to transport plaintiff "unobserved and unchaperoned." Plaintiff claims that Benson deviated significantly from the route to the jail, drove to a remote location, stopped the car, kept plaintiff in the car, and attempted to persuade plaintiff to perform various sex acts on him. When plaintiff refused, Benson drove to a concealed location and raped plaintiff. Plaintiff alleges that, as a consequence, she "sustained severe physical and emotional injuries. . . ." In additional to civil rights claims against individuals and the City of Anderson, plaintiff asserts state law claims based on "assault, battery, rape, and kidnapping."
In her initial disclosure under Federal Rule of Civil Procedure 26(a), plaintiff identified the following individuals as those who are likely to have discoverable information:
(1) Dr. Jeffrey Bosworth, M.D.; (2) Lynn E. Fritz; (3) Joseph S. Bussey, Ph.D.; (4) Melinda Adams; and (5) Robert McKinnon. Plaintiff stated that these individuals evaluated plaintiff and/or provided psychological counseling. In response to interrogatories, plaintiff stated as follows when asked about her alleged damages:
Plaintiff suffered from depression, extreme anxiety, embarrassment, fear, panic attacks, difficulty going out in public or being near other people, distrust of others -- especially law enforcement and individuals in positions of authority, afraid of the dark, night sweats and nightmares, difficulty sleeping, and difficulty dealing with stress.
As for physical injuries, she stated that she sustained "bruising as a result of the incident." In responses to requests for production of documents, plaintiff produced treatment records from Dr. Bosworth.
On November 8, 2012, defendants issued subpoenas to Fritz, Shasta Community Health Center for Bosworth, Bussey, Adams, and McKinnon seeking: "All documents pertaining to the care, treatment, examination, or services provided to Katrina Haught from May 29, 2005, to the present. . . ." Plaintiff seeks to quash these subpoenas.
Plaintiff argues: (1) the records sought are not relevant because she has not put her mental condition at issue; and (2) even if she has, the records sought are protected by the psychotherapist-patient privilege and/or the right to privacy. Defendants contest both assertions. They also argue that, should the court conclude that the subpoenas should be quashed, plaintiff be precluded from offering evidence of her emotional distress or other mental health injuries from these sources at trial.
Under Federal Rule of Civil Procedure 34(c)(3)(A), the court must quash subpoenas which seek privileged or other protected matter if no exception or waiver applies. Under federal law, the courts recognize that confidential communications between a patient and a psychotherapist are privileges. See Jaffe v. Redmond, 518 U.S. 1 (1996). Some courts follow a broad approach in determining when this privilege is waived. Under the broad approach, the psychotherapist-patient privilege is waived whenever the plaintiff places his mental condition at issue. See EEOC v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 399 (E.D. Cal. 2009). Using a narrower approach, other courts have concluded that the privilege is waived only ...