United States District Court, N.D. California
ORDER SUSTAINING IN PART AND OVERRULING IN PART
PLAINTIFF'S OBJECTIONS TO THE JULY 8, 2016 ORDER DOCKET
M. CHEN United States District Judge.
August 2, 2016, Plaintiff Paul Somers filed objections to
Judge Westmore's July 8, 2016 order regarding the
parties' discovery letter brief. Docket No. 111 (Obj.).
Having reviewed Somers's objections and Defendant Digital
Realty's opposition, the Court SUSTAINS IN PART and
OVERRULES IN PART Somers's objections.
initial matter, the Court recognizes that Somers's
objections were not timely filed. See Fed. R. Civ.
P. 72(a) (“A party may serve and file objections to [a
magistrate judge's non-dispositive] order within 14 days
after being served with a copy”). However, Somers is
also a pro se litigant, and the Court will therefore consider
his untimely objections on the merits this one
Federal Rule of Civil Procedure 72(a), a district judge
“may modify or set aside any part of [a magistrate
judge's] order that is clearly erroneous or is contrary
to law.” Clear error exists when this Court is
“„left with the definite and firm conviction that
a mistake has been committed.'” Titus v.
Humboldt Cnty. Fair Ass’n, Case No. 14-0143 SBA,
2015 U.S. Dist. LEXIS 162517, at *3 (N.D. Cal. Dec. 1, 2015)
(quoting Easley v. Cromartie, 532 U.S. 234, 242
(2001)). For the most part, Somers's objections do not
reach this high standard.
Somers objects to the narrowing of the time frame and search
terms for Outlook calendar appointments. Obj. at 2. However,
Judge Westmore did not improperly narrow either; she simply
ordered that the parties meet and confer regarding a date
range and search terms to narrow the search. Docket No. 110
(Ord.) at 2. Further, Somers does not explain why a narrowing
of either is an error or would be prejudicial, as he does not
explain why he had chosen a 3-month search period to begin
with, or why he would require all calendar appointments
rather than calendar appointments with a particular person or
on a particular meeting subject. In any case, it appears that
Digital Realty has produced all calendar entries to Somers,
despite his refusal to narrow the search terms, rendering
this objection moot. See Docket No. 115 (Petersen
Dec.), Exh. B (Digital Realty e-mail sending calendar
entries, and acknowledgment of receipt by Somers).
Somers argues that Judge Westmore erred in requiring Somers
to make himself available for deposition in the next 30 days,
without making a similar requirement of Digital Realty Trust.
Obj. at 3. In short, Somers does not challenge the 30-day
deadline, so much as the lack of a deadline for Digital
Realty Trust, but it is not apparent from the record that
Somers even requested such a deadline. See Docket
No. 108 (Joint Discovery Letter); Docket No. 114 (Opp.). This
is not a basis for finding error. The Court overrules this
objection; Somers must make himself available for deposition.
Somers contends that he should not be required to turn over
his medical records because beyond claiming
“garden-variety” emotional distress damages, he
has not placed his psychological state in controversy. Obj.
at 3. With respect to psychotherapist-patient privilege, the
courts have generally found a waiver only “when the
plaintiff has done more than allege
„garden-variety' emotional distress, ” with
“garden-variety” emotional distress being
described as “ordinary or commonplace emotional
distress” or that which is “simple or
usual.” Fitzgerald v. Cassil, 216 F.R.D. 632,
637 (N.D. Cal. 2003); EEOC v. Lexus Serramonte, 237
F.R.D. 220, 224 (N.D. Cal. 2006) (finding no waiver of right
of privacy where the plaintiff asserted garden-variety claim
for emotional distress and did not intend to rely on medical
records or medical testimony to support her claim). In
contrast, emotional distress that is not garden variety
“may be complex, such as that resulting in a specific
psychiatric disorder.” Ruhlmann v. Ulster Cnty.
Dep’t of Soc. Servs., 194 F.R.D. 445, 449 n.6
(N.D.N.Y. 2000); cf. Jackson v. Chubb Corp., 193
F.R.D. 216, 226 (D.N.J. 2000) (finding that if a plaintiff
alleged garden-variety emotional distress, and not “a
separate tort for the distress, any specific psychiatric
injury or disorder, or unusually severe distress, ” she
did not waive the psychotherapist-patient privilege). As to
physician-patient privilege, California “recognizes a
medical records privilege that allows a patient to refuse to
disclose, or prevent another from disclosing, confidential
communications with a physician in the course of the
patient-physician relationship.” Johnson v.
Northwest Airlines, Inc., No. C 08-2272 VRW, 2009 U.S.
Dist. LEXIS 30731, at *7 (N.D. Cal. Marc. 30, 2009) (citing
Cal. Evid. Code §§ 990-994). Two exceptions exist:
when the patient places his physical condition at issue, and
when waived. Id.
Digital Realty argues that there is waiver of both the
psychotherapist-patient and physician-patient privilege
because Somers has alleged more than garden-variety emotional
distress. See Opp. at 3. The Court disagrees, and
finds that Somers has not waived either privilege. Having
reviewed the complaint, the Court does not agree that Somers
has alleged something more complex than typical emotional
distress, such as a psychiatric disorder or any physical
condition resulting from Digital Realty's actions. While
Somers has alleged that Digital Realty has acted badly, that
goes to Digital Realty's behavior, not necessarily that
Somers is suffering a harm greater than what would be
expected for the situation. Thus, the Court will sustain this
objection, and will not require Somers to turn over his
medical records. However, should Somers later expand his
claims to include something more than
“garden-variety” emotional distress, discovery on
such claims (including of his psychological or medical
records) may be appropriate. See Smith v. Equinox
Holdings, Inc., Case No. 14-cv-846-LB, 2015 U.S. Dist.
LEXIS 17527, at *11 (N.D. Cal. Feb. 12, 2015) (“Should
[the plaintiffs emotional distress] claims later expand
beyond the limits he has described, the court will entertain
a request to open attendant evidence to discovery”).
conclusion, the Court OVERRULES Somers's
first and second objections, but SUSTAINS
Somers's third objection regarding his medical records.
Order disposes of Docket No. 111.
 Somers is forewarned that he must
review the applicable federal and local rules, and will be
expected to comply with the required ...