United States District Court, N.D. California, San Francisco Division
JOSEPH A. SMITH, Plaintiff,
EQUINOX HOLDINGS, INC., et al., Defendants.
ORDER QUASHING SUBPOENA (ECF No. 44) STATEMENT
LAUREL BEELER, Magistrate Judge.
This is an employment case in which the plaintiffs nine causes of action charge the defendant with violating various labor laws. (Compl. - ECF No. 1-1.) The plaintiff claims that the defendant fired him after he blew the whistle on those alleged violations; the defendant claims that the plaintiff was fired for violating a "variety" of corporate policies. (Jt. Ltr. Br. - ECF No. 44 at 1-2.) Among other things, the plaintiff seeks damages for the "emotional distress, humiliation, embarrassment, and mental anguish" that the defendant allegedly caused him. (Id. at 22 (¶¶ 94, 97), 27 (¶ 11).) The alleged emotional-distress damages are tied to the claims for wrongful termination and defamation or libel. (Id. )
The defendant has subpoenaed the plaintiffs "treating psychiatrist" to produce the following:
Any and all DOCUMENTS and records pertaining to the care, treatment, and examination of PLAINTIFF, including but not limited to, doctors' reports, nurses' notes, licensed clinical social workers' reports and notes, progress notes, inpatient and outpatient charts and records, medical, neurological, psychiatric, and mental health records, emergency room and lab reports, and any other records pertaining to PLAINTIFF from July 2008 to and including the present.
(ECF No. 44 at 1.)
Citing Californias psychotherapist-patient privilege (Cal. Evid. Code § 1014), and constitutional right to privacy (Cal. Const. art. I, § 1), the plaintiff seeks to quash the subpoena. He argues (in sum) that because he claims only "garden variety" emotional distress, and disavows recovery for "severe" psychological harm (among other things), he has not put his mental health in issue so as to waive the privilege or his right to privacy. (ECF No. 44 at 2-3.) The defendant counters that, especially by claiming that ongoing emotional distress kept him from finding another job, the plaintiff alleges more than "garden variety" emotional distress, has put his mental condition squarely in issue, and thus has waived any right to shield his psychiatric medical records from discovery. ( See id. at 3-6.)
Under Federal Rule of Civil Procedure 45(a)(1)(C), any party may serve a subpoena commanding a nonparty "to produce documents, electronically stored information, or tangible things...." Fed.R.Civ.P. 45(a)(1)(C). The subpoena may command the production of documents that are "not privileged" and are "relevant to any partys claim or defense" or "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Upon a timely motion, the court issuing such a subpoena shall quash it if it determines that the subpoena "requires disclosure of privileged or other protected matter, if no exception or waiver applies." Fed.R.Civ.P. 45(d)(3)(A)(iii).
I. LEGAL STANDARD
This is a diversity case (ECF No. 1 at 3-5, ¶¶ 7-16), so state-law privilege rules apply. See Fed.R.Evid. 501. Confidential communications between a patient and her psychotherapist are privileged under California law. Cal. Evid. Code § 1014. But there is no privilege "as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by... the patient[.]" Cal. Evid. Code § 1016. "[S]ection 1016 of the Evidence Code compels disclosure of only those matters which the patent himself has chosen to reveal by tendering them in litigation." In re Lifschutz, 2 Cal.3d 415, 426 (1970). This patient-litigant exception "allows only a limited inquiry into the confidences of the psychotherapist-patient relationship, compelling disclosure of only those matters directly relevant to the nature of the specific emotional or mental' condition which the patient has voluntarily disclosed and tendered in his pleadings or in answer to discovery inquiries." Id. at 431; see also Vinson v. Super. Ct., 43 Cal.3d 833, 838 (1987) ("[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.").
Californias constitution bestows a broad right of privacy. See Cal. Const. art. I, § 1; El Dorado Sav. & Loan Ass'n v. Super. Ct., 190 Cal.App.3d 342, 345 (1987). This right is "interrelated" with, but is "broader" than the psychotherapist-patient privilege; the latter has been called "one aspect of the [constitutional] right of privacy." Davis v. Super. Ct., 7 Cal.App.4th 1008, 1013 (1992). The privacy right extends to discovery proceedings in civil actions. See San Diego Trolley, Inc. v. Super. Ct., 87 Cal.App.4th 1083 (2001). The right to privacy is not absolute; it may be abridged to accommodate a compelling public interest. Moskowitz v. Super. Ct., 137 Cal.App.3d 313, 316 (1980). "One such interest, evidenced by Californias broad discovery statutes, is the historically important state interest in facilitating the ascertainment of truth in connection with legal proceedings." Id. (quoting Britt v. Super. Ct., 20 Cal.3d 844, 857 (1978)).
A plaintiff does not put his mental condition at issue, however, through a "simple... harassment claim asking compensation for having to endure an oppressive work environment or for wages lost following an unjust dismissal.... To hold otherwise would mean that every person who brings such a suit implicitly asserts he or she is mentally unstable, obviously an untenable proposition." Vinson, 43 Cal.3d at 840. More generally, a plaintiff who brings only a "garden variety" claim for emotional distress waives neither the evidentiary privilege nor her right to privacy under California law. See Davis, 7 Cal.App.4th at 1017 ("garden variety" personal-injury action alleging general damages, including mental suffering, did not put plaintiffs mental state at issue); see also EEOC v. Serramonte, 237 F.R.D. 220, 224-25 (N.D. Cal. 2006) (psychotherapist-patient privilege was not waived under California law where plaintiff brought only "garden-variety" claim for emotional distress and did not intend to rely on records or on testimony by a medical or psychiatric expert to support its claim). The "Supreme Court [of California] has recognized that the extent to which a mental component [of injury] may be in issue in a particular suit depends upon the facts of a particular case." Davis, 7 Cal.App.4th at 1016 (citing Roberts v. Super. Ct., 9 Cal.3d 330, 338-39 (1973)).
Precedent indicates that Mr. Smiths allegations fall within the range of normal emotional distress incident to a more or less extrinsic underlying wrong - here, the claims for wrongful termination and defamation or libel. Such allegations do not put Mr. Smiths mental health sufficiently in issue to breach the psychotherapist-patient privilege or constitutional right to privacy. Significant here, in view of the case law, are Mr. Smiths express qualifications and disavowals concerning his claimed emotional ...