United States District Court, N.D. California, San Jose Division
ORDER GRANTING-IN-PART EEOC'S MOTION TO QUASH
(Re: Docket No. 24)
PAUL S. GREWAL, Magistrate Judge.
Before the court is Plaintiff Equal Employment Opportunity Commission's motion to quash. Defendant Peters' Bakery opposes. Yesterday, the parties appeared for a hearing. After considering the arguments, the court GRANTS EEOC's motion, but only IN-PART, as laid out below.
A. The Charge Investigation Files of Kim Alvernaz and Marcela Ramirez
Peters' Bakery does "not contest the motion to quash" the subpoenae of the Alvernaz and Ramirez charge investigation files. The charge investigation files therefore need not be produced.
B. Ramirez's Pyschotherapy Records
Under the federal psychotherapist-patient privilege, "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." "Like other testimonial privileges, the patient of course may waive the protection." The question before the court is whether Ramirez's psychotherapist-patient privilege has been waived by the EEOC's civil case seeking recovery for emotional damages. The answer to that question, it turns out, is the subject of considerable disagreement among the district courts.
Judge Spero explains the split:
In the wake of Jaffee, courts have struggled to determine the circumstances under which waiver of the psychotherapist-patient privilege occurs. See Fitzgerald v. Cassill, 216 F.R.D. 632, 640 (N.D. Cal. 2003) (reviewing case law addressing waiver). Some courts have taken a broad approach to waiver, finding, for example, that mere assertion of a claim for emotional distress damages is enough to justify a finding of waiver. See id. (citing Sarko v. Penn-Del Directory Co., 170 F.R.D. 127 (E.D. Penn. 1997); Doe v. City of Chula Vista, 196 F.R.D. 562 (S.D. Cal. 1999)). These cases focus on fairness considerations. Id. Other courts have taken a narrow approach, holding that there must be an affirmative reliance on the psychotherapist-patient communication before the privilege is waived. See id. (citing Vanderbilt v. Town of Chilmark, 174 F.R.D. 225 (D. Mass. 1997)). These latter cases are based on the primacy of the privacy interest that is inherent in the privilege. Id. Finally, some courts have taken a "limited broad view" in which they have found waiver where a plaintiff has alleged more than "garden variety" emotional distress and has instead alleged emotional distress that is "complex" or has resulted in specific disorders. Id. at 637 (citing Weinstein's Federal Evidence § 504.07 & n.22.4).
EEOC urges that Ramirez's patient-psychotherapy privilege has not been waived. Some courts evaluate the waiver of the psychotherapist-patient privilege under standards articulated within Fed.R.Civ.P. 35(a). Rule 35 requires a showing that an issue is "in controversy" and there is "good cause" for the discovery. Any psychological or counseling records should only be produced if Ramirez has placed her mental condition "in controversy." Bare allegations of mental anguish, embarrassment and humiliation are insufficient. Because (1) EEOC has not asserted a separate claim for intentional or negligent infliction of emotional distress, (2) there is no claim for a specific psychiatric injury or disorder, (3) there is no claim of unusually severe distress and (4) no mental health expert is expected to testify at trial,  EEOC concludes Ramirez's mental condition is not "in controversy" despite her prayer for damages related to emotional pain and suffering.
Peters' Bakery disagrees. It cites Doe v. City of Chula Vista  and urges a more permissive perspective of psychotherapist-patient waiver is warranted. The Chula Vista court also noted the split in authority and the lack of appellate court guidance. The court concluded, however, that if the Supreme Court were to take up the issue it would likely adopt the permissive take because, although Congress declined to adopt the rule, the Supreme Court submitted a Proposed Supreme Court Standard 504(b) on the parameters of the psychotherapist-patient privilege to Congress with "exceptions to the privilege for conditions included in an element of a claim or defense." The Chula Vista court explained that for the plaintiff to recover emotional damages against her employer, "Doe must prove that her employer's conduct proximately caused her specific injury" and thus "her emotional health, near the time of the Defendant's conduct is an issue in the litigation." At bottom, the "discovery process" must "be fair to both parties, so that each side is able to present an effective and complete case to the jury."
Another recent district court opinion also bolsters Peters' Bakery's position: EEOC v. California Psychiatric Transitions.  In that case, even though "no specific emotional injury was alleged, or no claim of intentional infliction of emotional distress was made, the only remedy the EEOC" sought on behalf of the plaintiff was for "emotional distress damages." Emotional distress damages therefore constituted the "crux" of the plaintiff's claim. The court did not permit the EEOC to seek recovery for emotional distress and "shield information related" to her claim or otherwise "hide the details" of her injury.
Based on the record before the court, Peters' Bakery has the better of the argument. The facts of this case track California Psychiatric Transitions: the only damages sought by the EEOC are for emotional distress. Ramirez already has been financially compensated through a union arbitration for the loss of her job. Ramirez also has returned to her job. EEOC now seeks damages for stress and anxiety on behalf of Ramirez that were treated immediately after her termination. To substantively evaluate the merits of the EEOC's claims, Peters' Bakery needs access to Ramirez's psychotherapy records. Because these records are at the heart of EEOC's theory of recovery, and the EEOC bears the burden to establish that the Ramirez's privilege has not been waived,  it would be inequitable to bar discovery on this issue.
As Judge Austin explained in California Psychiatric Transitions: "To protect the records would allow Plaintiff to proceed with a claim on unequal terms. If the EEOC wants a jury to compensate Plaintiff for emotional distress, Defendant should be able to explore in discovery, other circumstances that may have caused the injury. The [presiding judge] can be the gatekeeper of the ultimate admissibility of the evidence through a Rule 403 balancing analysis at trial. A protective order,  and a direction ...