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Equal Employment Opportunity Commission v. Peters'bakery

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

September 17, 2014

PETERS' BAKERY, Defendant.



Before the Court is the Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge filed by plaintiff Equal Employment Opportunity Commission on August 19, 2014. Pl.'s Mot., ECF 38. Pursuant to Federal Rule of Civil Procedure 72 and Civil Local Rule 72-2, Plaintiff challenges the portions of the magistrate judge's August 6, 2014 order denying its motion to quash defendant Peters' Bakery's subpoena of charging party Marcela Ramirez's psychotherapy and medical records. Order at 2-7, ECF 37. The undersigned ordered further briefing on Plaintiff's Motion for Relief on August 22, 2014. ECF 40. Having carefully reviewed the parties' respective written submissions, the Court GRANTS Plaintiff's motion for the reasons stated herein.


This is a Title VII lawsuit brought by Plaintiff on behalf of the charging party, Marcela Ramirez, for employment discrimination and other unlawful employment practices. See Compl., ECF 1. The parties presently dispute whether, by seeking damages for emotional distress caused by such practices, Plaintiff has effectively waived Ms. Ramirez's psychotherapist-patient privilege and should be required to produce her psychotherapy and medical records for the calendar year 2011. Def.'s Opp. 2, ECF 41. After surveying the law surrounding waivers of the privilege and noting that there is "considerable disagreement among the district courts" regarding the applicable waiver standard, the magistrate judge determined here that Plaintiff had waived the privilege. See Order at 2-6.

Specifically, the magistrate judge found that though she was initially terminated from her job, Ms. Ramirez has been financially compensated through union arbitration and has since been reinstated to her position. Order at 5-6. As such, Plaintiff in this lawsuit is only seeking "damages for stress and anxiety on behalf of Ramirez that were treated immediately after her termination." Id. at 6. Based on these findings, the magistrate judge reasoned that this case is most similar to the situation in EEOC v. California Psychiatric Transitions, 258 F.R.D. 391 (E.D. Cal. 2009), an out-of-district case wherein the court found that the psychotherapist-patient privilege had been waived. The magistrate judge thus concluded that Ms. Ramirez's psychotherapy records should be produced because they "are at the heart of EEOC's theory of recovery." Order at 6. The magistrate judge also concluded that Ms. Ramirez's medical records were likewise "in controversy" and should be produced. Order at 7. Plaintiff seeks relief from both of these rulings.


A district court may refer nondispositive pretrial issues to a magistrate under 28 U.S.C. § 636(b)(1)(A).[1] "A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also Fed.R.Civ.P. 72(a); Civ. L.R. 72-2; Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). On review of a nondispositive order, "the magistrate's factual determinations are reviewed for clear error, " and the district court may only set aside those factual determinations if it is left with a "definite and firm conviction that a mistake has been committed." Perry v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010); see also Wolpin v. Philip Morris Inc., 189 F.R.D. 418, 422 (C.D. Cal. 1999); Burdick v. Comm'r Internal Rev. Serv., 979 F.2d 1369, 1370 (9th Cir. 1992). "[T]he magistrate's legal conclusions are reviewed de novo to determine whether they are contrary to law." Perry, 268 F.R.D. at 348.

When a discovery order centers on a magistrate's determination of relevance, "the standard of review in most instances is not the explicit statutory language, but the clearly implicit standard of abuse of discretion." Geophysical Sys. Corp. v. Raytheon Co., Inc., 117 F.R.D. 646, 647 (C.D. Cal. 1987). The court should not disturb the magistrate's relevance determination except where it is based on "an erroneous conclusion of law or where the record contains no evidence on which [the magistrate] rationally could have based that decision." Wolpin, 189 F.R.D. at 422 (citation omitted). The implicit abuse of discretion standard does not apply to portions of a magistrate judge's discovery order not concerned with relevance. Perry, 268 F.R.D. at 348; accord Wolpin, 189 F.R.D. at 422-23; Al-Kidd v. Gonzales, No. CV:05-093-S-EJL-MHW, 2008 WL 2788418, at *2 (D. Idaho July 17, 2008).


A. Psychotherapy Records

Here, Plaintiff does not challenge any of the magistrate judge's factual findings. As such, the only question is whether the waiver standard that the magistrate applied in denying Plaintiff's motion to quash Defendant's subpoena of Ms. Ramirez's psychotherapy and medical records is contrary to law. Plaintiff contends that the standard the magistrate judge applied is contrary to law because it does not comport with the Supreme Court's reasoning in Jaffee v. Redmond, 518 U.S. 1 (1996), which recognized a psychotherapist-patient privilege protectable under Federal Rule of Evidence 501 but did not address the question of waiver. Pl.'s Mot. 2. Defendant argues that because there is no binding authority from the Ninth Circuit and considerable disagreement among the districts concerning the appropriate standard to apply when determining whether the psychotherapist-patient privilege has been waived, the magistrate judge's application of a broader test for waiver is not "contrary to law." Def.'s Opp. 3-5.

The magistrate judge carefully described the various interpretations of the waiver issue post- Jaffee. Order at 2-4. The description of the broad, narrow, and middle ground waiver standards need not be repeated here. See id.; see also Stallworth v. Brollini, 288 F.R.D. 439, 443-44 (N.D. Cal. 2012) (collecting cases).

Considering our Supreme Court's holding in Jaffee, it is this Court's determination that the magistrate judge applied a standard that is contrary to the law in his determination of whether the psychotherapist-patient privilege had been waived. In holding that confidential communications between a psychotherapist and his patients is protected from compelled disclosure, the Supreme Court expressly rejected any sort of balancing test that would pit the relative importance of the privacy interest against the evidentiary need for disclosure. The Supreme Court stressed:

"[I]f the purpose of the privilege is to be served, the participants in the confidential conversation must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely ...

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