Opinion
Civil Action No: 02-2921, Section: "K" (4).
October 28, 2004
On October 18, 2004, the plaintiff, D'Erica Flowers filed a Motion to Compel in Camera Production of Non-party Therapy Records (doc. #116). The defendant, Camellia Grill, Inc. ("Camellia Grill") opposes the motion. A hearing was set on the motion on October 27, 2004.
I. Background
This is a Title VII action for gender harassment, discrimination, and retaliation. From August 1998 to January 15, 2002, the plaintiff, D'Erica Flowers ("Flowers"), was employed as a cashier for the defendant, Camellia Grill, Inc. ("Camellia Grill"). Flowers alleges that she was harassed by the manager of Camellia Grill who engaged in physical touching and verbal harassment both at her home and on her cell phone. Flowers alleges that this harassment began around September or October 1998 and continued until her last day of work. Flowers further alleges that she complained about the harassment on at least two occasions but to no avail.
Flowers has filed the instant motion seeking production of the psychiatric/psychological counseling records or Ronnie Jaeger ("Jaeger"), the manager of Camellia Grill and the alleged harasser. Jaeger is a non-party to this suit. As the trial in this matter is scheduled to begin on November 15, 2004, the plaintiff seeks expedited consideration of this motion.
II. Analysis
Flowers contends that, as this case involves a federal claim, federal privilege law applies and that such law does not protect the psychiatric/psychological records she now seeks to discover. Flowers further contends that, to the extent privilege applies to Jaeger's psychiatric/psychological records, it was waived by Jaeger. The waiver consists of Jaeger telling his employer, Michael Schwartz ("Schwartz"), that he was being treated due to the stress of Flowers' allegations.
Camellia Grill contends, however, that the psychotherapist-patient privilege applies to the requested discovery and the privilege has not been waived here.
A. Psychotherapist-Patient Privilege
On matters which are governed by federal substantive law, the federal courts apply a federal law of privilege, either as prescribed by statute or as fashioned from "the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." FED.R.EVID.501. Federal common law recognizes a psychotherapist-patient privilege as to communications between a patient and a licensed psychotherapist in the course of diagnosis or treatment. Jaffe v. Redmond, 518 U.S. 1, 10-11 (1996); United States v. Quorum Health Resources, No. Civ. A. 97-1051, 1999 WL 7900, at *2 (E.D. La. Jan. 6, 1999). Thus, for the privilege to attach, the communication must be both confidential and made in the course of diagnosis or treatment. Doe v. Ensey, 220 F.R.D. 422, 425-26 (M.D. Penn. 2004).
In this case, Flowers seeks the records of Jaffe's psychiatrist and/or psychologist pertaining to his treatment. These records clearly fall within the psychotherapist-patient privilege. Thus, to the extent privilege has not been waived, these records are not subject to production. See Jaffe, 518 U.S. at 15.
B. Waiver
Several courts have held that a patient may waive the psychotherapist-patient privilege in certain circumstances. See Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000) (citing several cases). The most common of these circumstances is the case where the patient places his or her medical condition at issue. Id. Some courts have also held that the privilege can be waived if the patient discloses the substance of the therapy sessions to third parties. See e.g. id; United States v. Bishop, No. 97-1175, 1998 WL 385898, at *4 (6th Cir. July 1, 1998); Ensey, 220 F.R.D. at 425-26.
In this case, during his deposition, Schwartz noted that Jaeger had indicated to him that he was undergoing therapy. However, the deposition transcript does not indicate, nor has Flowers asserted that the substance of those therapy sessions was disclosed by Jaeger to Schwarz. Thus, Jaeger did not waive the psychotherapist-patient privilege as to those therapy sessions. Therefore, the Court finds that the records sought by Flowers are privileged and are not subject to production.
Accordingly,
IT IS ORDERED THAT the plaintiff's Motion to Compel in Camera Production of Non-party Therapy Records (doc. #116) is DENIED.