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As 610-WIP radio host Steve Fredericks likes to say prior to declaring his topic de jour, “People, let me set the table.” You’re litigating an employment discrimination case in federal court. The plaintiff alleges he suffered emotional distress and mental anguish. He was treated by a psychotherapist, but you have decided not to introduce any psychotherapist testimony or expert testimony probative of the severe emotional anguish he endured. Instead, plaintiff alone will explain to the jury how he was affected. Such testimony can be enough for a jury to award compensatory damages for emotional suffering. See Bolden v. Southeastern Pennsylvania Trans. Author., 21 F.3d 29, 24 (3d Cir. 1994). The defense counsel, however, insists on reviewing the plaintiff’s psychotherapy records and questioning the plaintiff at deposition about his conversations with his psychotherapist to ascertain whether there were other causes of anguish in the plaintiff’s life. The plaintiff does not want the defense probing into the most sensitive and private conversations of his life — those with his psychotherapist. Are those communications — and the doctor’s notes — discoverable by opposing counsel? Surprisingly, the answer may be no. FED. R. CIV. P. 26(B) Analysis of a dispute involving the scope of discovery begins with Rule 26(b) of the Federal Rules of Civil Procedure, which provides in pertinent part: “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery … The information sought need not be admissible at trial if the information sought appears reasonably calculated to lead to the discovery of relevant evidence. See also Covell v. CNG Transmission Corp., 863 F. Supp. 202, 204 (M.D. Pa. 1994). Thus, the first question is whether the documents and conversations between plaintiff and her psychotherapist are privileged. If a privilege applies, the inquiry ends and defendant is not entitled to receive the discovery it seeks. FEDERAL LAW AND PRIVILEGE ANALYSIS In an employment discrimination context, counsel cannot rely on state law to determine whether a therapist-patient privilege exists. Under Fed. R. Evid. 501, a privilege under state law applies only when state law controls the rule of decision. Here, state law does not control because the action is brought pursuant to federal law (e.g., Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act), and so “the privilege of a witness … shall be governed by the principles of common law of the United States in the light of reason and experience.” See also Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 129 (E.D. Pa. 1997) (Joyner, J.) (“It is well settled … that under Federal Rule of Evidence 501, the federal common law of privileges applies …”) (citing Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 103 (3d Cir. 1982); Bayges v. Southeastern Pennsylvania Transp. Author., 144 F.R.D. 269, 271 (E.D. Pa. 1992); McCarthy v. Southeastern Pennsylvania Transp. Author., 1993 U.S. Dist. LEXIS 14419 (E.D. Pa. 1993) (McGlynn, J.) (“Since jurisdiction here is based on a federal question, the Federal Rules of Evidence govern.”). SUPREME COURT PSYCHOTHERAPIST- PATIENT PRIVILEGE The United States Supreme Court ruled in Jaffe v. Redmondthat confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501. 518 U.S. 1, 15, 116 S. Ct. 1923, 1931, 135 L. Ed. 337 (1996). This privilege covers confidential communications to “licensed psychiatrists and psychologists” and is not “contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and evidentiary need for disclosure.” Sarko, 170 F.R.D. at 127 (citing Jaffe). Justice Stevens, writing for the majority, noted that, as with other testimonial privileges, the psychotherapist- patient privilege may be waived by the patient. WAIVER OF PRIVILEGE? Notwithstanding the confidential protections recognized by the U.S. Supreme Court, a plaintiff may waive the psychotherapist- patient privilege by placing his mental condition at issue. See Sarko, 170 F.R.D. at 130; Puricelli v. Houston, 2000 U.S. Dist. LEXIS 7976, 2000 WL 760522 (E.D. Pa. 2000) (Kelly, J.M., J.). Here in the Eastern District of Pennsylvania, Judge James McGirr Kelly’s recent opinion in Puricelliilluminates some of the factors a judge will assess to determine whether a plaintiff has placed his mental condition at issue such that he waived the privilege. The criteria Judge Kelly employed can be discerned from the following excerpt: “[T]he Plaintiffs allege that they suffered damage to their emotional well-being. Specifically, their Complaint states: “As a direct and proximate result of the Defendants’ actions and/or omissions, Plaintiffs Puricelli and Ledbetter have been injured. For example, but not limited to such, these Plaintiffs have been unable to sleep, each has been withdrawn, been depressed, suffered headaches, stomach pains, lost hair, gone through spells of sadness and anger, and been unable to work at there [sic] businesses. Plaintiffs have not enjoyed the company and companionship of others, nor been able to enjoy and continue the family bonds that had formed between them. Further, as a direct and proximate result of the Defendants’ conduct and omissions[,] the children … have suffered extreme emotional distress … “Pls.’ Compl. P 34. Additionally, it appears from the Plaintiffs’ initial disclosures and pretrial memorandum that they intended to call Oppenheim as an expert witness regarding damages caused by emotional distress. See Defs.’ Motion to Compel Ex. B. Thus, the Court finds that Plaintiffs had placed their mental condition in issue thereby waiving the patient- psychotherapist privilege. Accordingly, the Defendants’ motion to compel is granted.” Judge Kelly’s analytical framework is consistent with those used by other courts that have opined on this issue, including those holding the plaintiff had not waived his patient- psychotherapist privilege. If a plaintiff’s initial disclosures and subsequent communications evince a clear intent not to introduce records or expert testimony regarding her psychological condition; if his complaint alleges only general averments of mental anguish as opposed to allegations of a specific psychological disorder; if a plaintiff does not allege intentional infliction of emotional distress; or if a plaintiff otherwise agrees not to use the confidential records or expert testimony to prove emotional damages, a court may hold a plaintiff has not waived the privilege. Indeed, a line of cases has advanced the view that there is a waiver only where the party asserting the privilege has affirmatively used his or her mental condition. See, e.g., Booker v. City of Boston, 1999 U.S. Dist. LEXIS 14402, at 3, 1999 WL 734644, at 1 (D. Mass. 1999) (privilege not waived unless the plaintiff makes positive use of the privileged material in the prosecution of her case); Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (finding no waiver where claim limited to the negative emotions plaintiff experienced essentially as the intrinsic result of the defendants’ alleged conduct); Brown v. Telerep., Inc., 263 A.D.2d 378, 379, 693 N.Y.S.2d 34 (N.Y. App. Div. 1st Dep’t 1999) (finding plaintiff’s mental condition no longer at issue where defamation and intentional infliction of emotional distress claims were withdrawn); Hucko v. City of Oak Forest, 185 F.R.D. 526, 527 (N.D. Ill. 1999) (finding no waiver of privilege where plaintiff merely seeks damages for emotional harm resulting from defendants’ misconduct); Vann v. Lone Star Steakhouse & Saloon, 967 F. Supp. 346, 347-48, 350 (C.D. Ill. 1997) (finding waiver where plaintiff claimed physical and emotional injury caused by a hostile work environment and disclosing her treating psychotherapist as an expert witness); Vasconcellos v. Cybex Int’l, Inc., 962 F. Supp. 701, 708-09 (D. Md. 1997) (finding waiver where plaintiff claimed severe emotional distress resulting from harassment and asserted intentional infliction of emotional distress claim). Other courts have adopted a broader viewpoint as to when a plaintiff has waived the privilege. These courts have held that once a plaintiff simply claims emotional distress due to the conduct of defendant and seeks damages thereby, the psychotherapist- patient privilege is waived. See, e.g., Jackson v. Chubb Corp., 193 F.R.D. 216 (D.N.J. 2000); McKenna v. Cruz, 1998 U.S. Dist. LEXIS 18923, 1998 WL 809533, at 2-3 (S.D.N.Y. 1998); Fox v. Gates Corp., 179 F.R.D. 303, 306 (D. Colo. 1998); EEOC v. Danka Indus., Inc., 990 F. Supp. 1138, 1142 (E.D. Mo. 1997); Lanning v. Southeastern Pa. Transp. Auth., 1997 U.S. Dist. LEXIS 14510, 1997 WL 597905, at 2 (E.D. Pa. 1997); Doolittle v. Ruffo, 1997 U.S. Dist. LEXIS 4021, 1997 WL 151700, at 2 (N.D.NY. 1997). PRIVILEGE IS LIKELY TO REMAIN INTACT A July opinion from the U.S. District Court for the Northern District of New York synthesized the above-referenced cases and provides a helpful template for when to object to (and, concomitantly, when to propound) such discovery requests. In Ruhlmann v. Ulster County Dep’t of Social Services, U.S. District Judge David N. Hurd found that a party does not place his or her emotional condition at issue by merely seeking incidental, “garden-variety,” emotional distress damages. In Ruhlmann, the plaintiff brought a claim under the Americans with Disabilities Act, 42 U.S.C. Sections 12101-12213, and sought damages for mental and emotional suffering. Judge Hurd concluded that other opinions, whether or not finding the privilege had been waived by the plaintiff, generally support the principle that where a plaintiff asserts ordinary emotional distress arising incidentally out of the conduct of defendants, and has not relied upon the advice or findings of a psychotherapist to substantiate her claims of mental anguish, she has not waived the privilege. Judge Hurd opined that as long as a plaintiff is not trying to have it both ways (i.e., “using the privileged communications as a sword”), requiring a plaintiff to disclose psychotherapist communications would undermine the important public interest of “[f]acilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem � a public good of transcendent importance.” Judge Hurd added, “[t]o condition recovery for emotional distress incidental to the violation of a federal constitutional and statutory rights upon the surrender of the protection of the psychotherapist privilege is also antithetical to the purpose of the laws that provide redress for such violations.” For plaintiffs in employment discrimination cases, the foregoing case law should provide some security when they disclose confidential matters to their therapists. For their counsel, this authority should be used to protect the client from an unreasonable invasion of privacy as discovery unfolds. Marc E. Weinstein is an associate with Kolman & Associatesin Langhorne, Pa., where he specializes in plaintiff’s employment litigation.

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