United States District Court, E.D. California
ORDER GRANTING INFORMAL MOTION TO COMPEL PSYCHOTHERAPIST DOCUMENTS; EXTEND LENGTH OF DEPOSITION (Doc. 54, 59, 60)
BARBARA A. McAULIFFE, Magistrate Judge.
Pending before the Court is an informal discovery dispute centered on disclosure of psychotherapist counseling records and on a request to extend the length of a deposition. The Court conducted an informal discovery conference on October 6, 2014, then requested supplemental briefing on cases the Court found persuasive. Having considered the two page summaries provided by the parties, their supplemental briefs (Doc. 63-65), the argument of counsel at the hearing on October 6, 2014, and the entire record, the Court rules as follows.
Relevant Procedural Background
This action arises out of the death of Glendon Engert, a locksmith assisting with the eviction of James Ferrario, being carried out by the Stanislaus County Sheriff's Department on August 12, 2012 in Modesto, California. Plaintiffs Irina Engert ("Irina" or Plaintiff), the decedent's wife, and Ron and Anne Engert, the decedent's parents, assert the County, the police officer defendants, and RT Financial knowingly placed Mr. Engert in danger by failing to protect him from being shot by Mr. Ferrario. Plaintiffs claim that defendants knew that Mr. Ferrario was mentally ill and kept a stock pile of weapons.
Plaintiffs bring this civil rights suit individually and as successors in interest to Glendon Engert under the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 and state law. The operative Second Amended Complaint ("SAC") alleges claims on behalf of the decedent under the Fourteenth Amendment and related state law for right to life/wrongful death. Plaintiff Irina Engert claims violation of her rights under the Fourteenth Amendment and related state law for interference with familial relationship/wrongful death. As to damages, Decedent claims damages for "significant economic and non-economic damages, including but not limited to, medical expenses, physical pain, emotional distress, and violation of his constitutional rights." SAC para 71. Irina claims damages for being "deprived of a kind and loving husband , and of his care, companionship, comfort, love, affection, society, and moral support." SAC para. 72.
Issues in the Discovery Dispute
Pending before the Court is the parties' informal discovery dispute. Here, Defendants, collectively, seek to compel: (1) an enlargement of time for Plaintiff Irina Engert's deposition, (2) access to the mental health records of both Mr. and Mrs. Engert from Dr. Quisling, a psychiatrist, and (3) Irina's deposition testimony as to psychiatric care.
Irina argues privacy and psychotherapist/patient privilege. Irina's main position is that emotional distress is not at issue in this case. She argues that she does not have a claim for "emotional distress" damages, she does not claim medical expenses, and she only claims loss of consortium type damages, which are not "emotional distress" damages. Doc. 64. Plaintiff argues that loss of the love and support of a spouse has a value regardless of the particular condition of the marriage at the time of death, and plaintiff should not be forced to forego the privilege of the most confidential communications in order to recover damages. Relying on Jaffee v. Redmond, 518 U.S. 1 (1996), the seminal case on the psychotherapist-patient privilege in federal court, Plaintiff argues that discovery of Irina's communications with her psychiatrist are barred as a matter of public policy and would undermine open communications between patient and doctor.
Legal Standards and Law Applicable to the Proceeding
A. Right to Privacy
Privacy rights are generally recognized in federal court. Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir. 1992). However, the right is not absolute and may be subject to invasion depending on the circumstances. Oakes v. Halvorsen Marine Ltd., 279 F.R.D. 281, 284 (C.D. Cal., 1998). Thus, the right to privacy is not a recognized privilege or absolute bar to discovery, but instead is subject to the balancing of needs. Ragge v. MCA/Universal Studios, 165 F.R.D. 601, 604 (C.D. Cal. 1995) (discussing documents in employee's personnel files).
B. Psychotherapist-Patient Privilege
Generally, confidential communications between a psychotherapist and patient are privileged. Jaffee, 518 U.S. at 1. This privilege is not an absolute privilege. Even Jaffee acknowledged that it did not "define the contours" of the privilege and said in circumstances, the privilege must "give way." Jaffee, 518 U.S. 18 and n.19. District Court cases have held that the privilege gives way in like situations as here.
District courts have adopted different approaches to determine whether the patient has waived his or her psychotherapist-patient privilege. Under the broad approach, a simple allegation of emotional distress in a complaint constitutes waiver. Under the narrow approach, there must be an affirmative reliance on the psychotherapist-patient communications before the privilege will be deemed waived. Under the middle ground approach, courts have generally found a waiver when the plaintiff has done more than allege "garden-variety" emotional distress. See Turner v. Imperial Stores, 161 F.R.D. 89, 97 (S.D. Cal. 1995) (applying middle approach); see Fitzgerald v. Cassil, 216 F.R.D. at 633, 638-39 (adopting narrow approach and finding no waiver of privacy when plaintiff did not allege "cause of action for intentional or negligent infliction of emotional distress" ...