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Marshall v. Laboratories

United States District Court, N.D. California, San Jose Division

July 23, 2014

ABBOTT LABORATORIES, et al., Defendants.


PAUL S. GREWAL, Magistrate Judge.

The court has before it a motion from Defendant Abbott Laboratories to compel Ross Smith - a psychotherapist - to produce "any and all" records, notes and documents "relating or referencing [his patient, Plaintiff] Nicolle Marshall."[1] Marshall has already consented to the disclosure of information her therapist has "related to [her] employment with Abbott Laboratories, " but she has refused to allow him to produce other records or testimony about any other confidential matters she may have communicated to him in the course of their therapeutic relationship.[2] Abbott Labs finds this consent inadequate because it says the limited consent allows Marshall to unilaterally cherry - pick the pieces of her psychological history that it would be entitled to review.[3] Because Marshall seeks damages for mental and emotional distress, and because she has designated her therapist as a witness regarding her medical conditions, Abbott Labs argues/believes that Marshall has waived the patient-psychotherapist privilege as to all of her interactions with Dr. Smith. While the court is unwilling to say that Marshall has waived the entirety of her patient-therapist privilege, it agrees that Abbott Labs must be given more fulsome access to Smith than Marshall's current consent would allow.

This dispute arises as part of an ongoing employment discrimination and wrongful termination case. Marshall alleges adverse treatment in the workplace based on her race and gender that led to mental and emotional distress, as well as other damages. In order to prove up these claims at trial, Marshall will be required to demonstrate that her emotional distress was directly caused by the conditions at her workplace. Abbott Labs wants access to her therapist's records in order to determine whether there were other factors in her life that may have contributed to Marshall's mental state.[4] As it stands, Marshall asserts that any other personal matters she may have discussed with Smith were not related to the distress claims before the court.[5]

The problem is, the question of causation is the jury's, not Marshall's, to decide.[6] Although the California Evidence Code ordinarily protects communications with a therapist from discovery, [7] courts have repeatedly held that plaintiffs seeking recovery for mental or emotional distress have waived that protection as to the mental conditions in suit.[8] Defendants facing such a suit have the right to inquires as to whether the emotional distress could stem from factors other than their conduct.[9] This inquiry requires some information as to what other factors may have been at play.

That said, Abbott Labs seeks far more than a simple peek into Smith's files to determine whether any other life circumstances may have contributed to her emotional distress; instead, Abbott Labs seeks the full production of any and all documents that even reference Marshall. In order to cabin this over-reach, while the court will not enter an order prohibiting broader discovery of Marshall's mental health records, it will set certain restrictions on Abbott Lab's access to those records to prevent oppression and harassment. Smith shall respond to the subpoena to produce documents, but his response shall be limited to documents from January 1, 2009-March 17, 2012 that touch on the types of mental and emotional distress of which Marshall intends to produce evidence at trial. He shall produce these records no later than August 22, 2014, and he shall respond to any questions regarding the relevant time frame in any deposition. If the records are not produced prior to Smith's deposition, Abbott Labs shall be entitled to four additional hours of deposition testimony at a later time.


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