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A plaintiff’s records from psychotherapy must be turned over to the defense whenever the plaintiff is pressing a claim for emotional distress, a federal judge has ruled — even when the plaintiff insists that the therapy had nothing to do with his lawsuit and that he doesn’t plan to call his therapist as a witness. In his 11-page opinion in Sanchez v. USAir, Senior U.S. District Judge Clifford Scott Green found that a therapist’s records of a plaintiff’s emotional distress are legally similar to any other medical records — even from a knee injury. “To allow plaintiffs to make a claim for emotional distress, but shield information related to their claim, is similar to shielding other types of medical records. For instance, if the injury at issue were to the knee, and plaintiff had sustained a subsequent knee injury requiring treatment, plaintiffs would not be able to hide the details of the subsequent knee injury because of privilege or privacy considerations,” Green wrote. Green ruled that if the plaintiff insists on keeping the therapy records private, he must drop his claim for emotional distress. According to the suit, Ernesto M. Sanchez was fired from his management post at USAir in August 1997 when the company said he improperly caused a paying passenger to give up his seat on a plane bound for Puerto Rico so that Sanchez himself could get on the flight. But Sanchez claims USAir ignored his version of the events and unfairly relied on information provided by “white, non-Hispanic employees. Together with his wife, Charlotte, as a co-plaintiff, Sanchez claims he suffered significant emotional distress over the loss of the job and the need to relocate to Puerto Rico. USAir’s defense team — Vicente J. Antonetti of Goldman Antonetti & Cordova in San Juan; Tom A. Jerman and Valerie Granfield Roush of O’Melveny & Myers; and James M. Wilson and Barbara Rittinger Rigo of Littler Mendelson — asked Sanchez’s lawyers to turn over the complete file from his treatment with a psychotherapist. In an answer to an interrogatory, Sanchez’s lawyers — Adalina de Jesus-Morales and Charles S. Hey-Maestre of San Juan, along with Anna M. Durbin in Ardmore, Pa. — had said Sanchez visited the therapist “for treatment of the mental and emotional distress caused by my termination from employment.” But in an amended answer to the same interrogatory, they said Sanchez began seeing the therapist 18 months after losing his job and that the “primary reasons for seeing [the therapist] were personal and unrelated to this case.” USAir asked Judge Green to compel production of the therapist’s file. If Sanchez didn’t want to divulge personal information, they said, he could simply drop his claim of emotional distress. Sanchez’s lawyers responded by asking the judge to issue a protective order to bar the defense team from delving into his psychotherapy, all of which is protected by the therapist-patient privilege. In their brief, the plaintiff’s lawyers said that Sanchez did not waive his privilege simply by asserting a “garden-variety” claim of emotional distress. They also said they never intended to call the therapist — or any other expert — as a witness, or to rely on any of his records in proving the claim. Instead, they said, the emotional distress claim would be proven at trial purely by testimony from “lay person” witnesses. But Green found that the plaintiffs failed to show that the records shouldn’t be turned over to the defense in discovery. “While plaintiffs attempt to downplay how relevant the records are, they essentially concede that the records have some relevance,” Green wrote. “If the records were totally irrelevant, the plaintiffs’ amended interrogatory answer would have said that all of the reasons for seeing [the therapist] were unrelated to this case, instead of equivocally stating that the primary reason for the treatment was unrelated.” The defense team, Green said, has the right to make its own assessment of whether the records are relevant. “It is not for a party to determine, by a unilateral review of documentation, whether information is relevant to the case,” he wrote. Defense lawyers said the records may disclose whether Sanchez actually suffered stress as a result of his termination and whether he had unrelated stress that could “mitigate” his emotional distress claim against USAir. Judge Green agreed and concluded that the records were relevant and “could lead to the discovery of admissible evidence.” But Green said his task was not yet done because he also had to weigh the plaintiff’s claim that the records are privileged — and the defense argument that Sanchez waived the privilege. “While the Supreme Court has stated that the patient-psychotherapist privilege may be waived, neither they nor the 3rd Circuit has decided with particularity what constitutes waiver,” he wrote. Defense lawyers cited several cases that said a plaintiff waives the privilege whenever they place their emotional or mental state into issue in the litigation — even when they don’t intend to call the doctor as a witness. But the plaintiffs cited several other cases that held there is no waiver unless the plaintiff makes use of the privileged material in the prosecution of the case. Green found it was necessary to conduct a balancing test — weighing USAir’s interest in access to the records against Sanchez’s privacy interests. USAir’s interest was stronger, Green found, since it needs the records to prepare its defense of a claim. “What the plaintiffs ask the court to do is to allow them to make a claim for mental or emotional distress, but disallow the defendant from discovering information about the myriad causes of their distress,” Green wrote. Sanchez’s lawyers argued that the defense should be allowed to ask Sanchez about the unrelated causes of stress, but should not be able to read his treatment reports or ask him what he discussed in therapy. Green disagreed, saying, “Though it is true that this approach would protect the sanctity of the records, it would allow the plaintiffs to proceed with a claim on unequal terms. Plaintiffs would be allowed to divulge what they wanted, and to independently assess the quantum of harm caused by defendant’s actions and other, unrelated stress factors. Though convenient to plaintiffs, this approach is unsatisfactory in our adversarial system of justice.” But Green also ruled that Sanchez and his wife “should be given the opportunity to prevent disclosure of this information by withdrawing their claims for emotional distress.”

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