Opinion
No. CIV S-07-0960 RRB GGH.
January 24, 2008
ORDER
INTRODUCTION
Previously pending on this court's calendar for January 10, 2008, was Defendant and Counter-claimant Sauer's amended motion to quash subpoena and for a protective order, filed November 28, 2007. Elizabeth Lawley appeared on behalf of Kurt Sauer. R. Lawrence Bragg represented Nabil Samaan.
Mr. Bragg is counsel for Mr. Samaan only in regard to the counter-claim.
BACKGROUND
Samaan, a person of African descent, filed this action on May 22, 2007, alleging racial discrimination by Sauer, who was a juvenile probation officer, during the period from March to April, 2007. Sauer countersued, alleging libel and slander, by virtue of Samaan's correspondence to Sauer's employer accusing Sauer of being a racist and being discriminatory toward minorities, which Sauer claims is false. Sauer's counter claim seeks damages for "emotional distress and anxiety, embarrassment, and great and irreparable loss and injury to his reputation." Counterclaim, at ¶ 9.
It should be noted that Samaan is in a relationship with Sauer's ex-wife, Shannon Wilde, and Sauer and Wilde are currently in litigation over the custody of their son. Wilde wants to relocate the son to Sacramento, where Samaan lives, and Sauer resides in Shasta County. Sauer believes Samaan wants to abuse the discovery process for Wilde's benefit in the family court proceedings.
DISCUSSION
Sauer brings this motion to prevent Samaan from taking the deposition of Ann O'Sullivan-Brynjolfsson, LCSW, and production of records, based on the psychotherapist-patient privilege. Sauer had seen her for marital counseling on a few occasions in 2005.
Sauer has provided a declaration by O'Sullivan-Brynjolfsson which states that she saw both Sauer and his wife but it was so brief that she did not provide any actual treatment. She also states that she treated Sauer by himself on a few occasions, but it was solely for the purpose of marriage counseling and not for emotional distress. She further stated that she never observed any discriminatory behavior or qualities by Sauer. She provided records of her three treatment sessions with Sauer to his ex-wife, Shannon Wilde, on October 25, 2007, under the mistaken belief that Wilde was still Sauer's spouse. O'Sullivan-Brynjolfsson Decl., ¶ 5.
A psychotherapist-patient privilege applies in federal question cases. See Jaffee v. Redmond, 518 U.S. 1, 15, 116 S. Ct. 1923 (1996). Like other privileges, however, a plaintiff may waive the psychotherapist-patient privilege if claims put privileged information at issue. See Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D.Pa. 1997); Vann v. Lone Star Steakhouse Saloon, Inc., 967 F. Supp. 346, 349-50 (C.D.Ill. 1997); c.f. Home Indem. Corp. v. Lane Powell Moss and Miller, 43 F.3d 1322, 1326 (9th Cir. 1995) (applying waiver to attorney/client privilege). The Supreme Court in Jaffee recognized privileges could be waived, but it has not discussed the factors which determine waiver of the psychotherapist privilege. See 518 U.S. at 18, 116 S.Ct. at 1932.
Lower courts disagree on the test to determine whether the privilege is waived. Some apply a broad test, finding mental condition at issue, and, accordingly, waiver of the privilege, whenever emotional distress damages are sought. See Kirchner v. Mitsui Co. (U.S.A.), Inc., 184 F.R.D. 124 (M.D.Tenn. 1998) (claim for emotional distress damages waives privilege; EEOC v. Danka Indus., Inc., 990 F. Supp. 1138, 1142 (E.D.Mo. 1997) (same). Others decline to find waiver unless the emotional distress claims are more than mere "garden variety" or incidental emotional distress damages claims. See e.g., Ruhlmann v. Ulster Co. Dept. of Social Serv., 194 F.R.D. 445 (N.D.N.Y. 2000) (no waiver by claim for incidental emotional distress damages);Krocka v. City of Chicago, 193 F.R.D. 542 (N.D. Ill. 2000) (plaintiff who limited emotional distress damages to embarrassment and humiliation did not waive privilege); Jackson v. Chubb Corp., 193 F.R.D. 216 (D.N.J. 2000) (garden-variety emotional distress claim does not waive the privilege); Speaker ex rel. Speaker v. County of San Bernardino, 82 F.Supp.2d 1105 (C.D.Cal., 2000) (no waiver unless mental state or communication with therapist at issue); Fritsch v. City of Chula Vista, 196 F.R.D. 562, 568 (C.D. Cal. 1999) (no waiver unless therapist as witness or communication with therapist at issue); Santelli v. Electro-Motive, 188 F.R.D. 306 (N.D. Ill. 1999) (self-imposed limits on emotional distress claim preserves privilege); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 225-30 (D.Mass. 1997) (no waiver where plaintiff sought incidental emotional distress damages).
As a preliminary matter, the parties do not dispute that the psychotherapist privilege applies to this marriage counselor. Samaan also does not claim that O'Sullivan-Brynjolfsson's declaration stating that she treated Sauer but that it was solely for the purpose of marriage counseling and not for emotional distress, acts as a waiver by its disclosure.
The court is somewhat puzzled that counsel opposing production of the marriage counselor's records does not dispute the applicability of the psychotherapist privilege when the therapist declares that she did not treat Sauer for emotional distress purposes, but only for the distinct purpose of marriage counseling. The undersigned does not believe that marriage counseling, in and of itself, qualifies for the privilege any more than financial counseling would, and there is scant authority which would support a conclusion of inclusion. See United States v. Schwensow, 151 F.3d 650, 657 (n. 4) (7th Cir. 1998). The psychotherapist privilege, by focusing on its name, is most apt when speaking about mental health treatment as opposed to counseling on issues of life. Not all, or even many, persons struggling with keeping a marriage together should be considered mentally ill or emotionally disturbed. While there is no doubt private information conveyed to a marriage counselor, i.e., information the parties would otherwise not wish to be public, the improper dissemination of such information can be avoided by a protective order. Absent the privilege, the only question concerning counseling records involves whether relevant evidence might be found in the marriage counselor's files. Nevertheless, the court will accept the parties assumption to the contrary.
What Samaan does claim is that Sauer waived the privilege in two ways. First, he contends that Sauer placed his emotional state at issue by alleging a distinct cause of action for emotional distress, and by disclosing other psychotherapists who will testify in support of his claim. He also asserts that Sauer testified at his deposition that he suffered severe and significant stress prior to the allegedly defamatory statements made by Samaan. Samaan contends that the information sought may show other sources for Sauer's emotional distress, which may have existed prior to Samaan's allegedly defamatory statements.
As set forth above, there are two views as to how broadly or narrowly waiver of this privilege should be construed. Although the Ninth Circuit has not addressed the matter, a central district of California case decided a similar issue after having considered both views. In Speaker v. County of San Bernardino, 82 F. Supp.2d 1105 (C.D. Cal. 2000), the court took note of the majority view which adopted a broad interpretation that all communications between the party and the psychotherapist are waived when the party places his or her mental state at issue, even if it is only a claim of damages for emotional distress. The narrow, but growing view, was that the party must directly place the privileged communication at issue; it is not enough to simply allege damages for emotional distress in a complaint, but waiver requires that the party "either calls his or her therapist as a witness, or introduces the substance of the privileged communication into evidence." Id. at 1118-19, citing Vanderbilt v. Town of Chilmark, 174 F.R.D. 225 (D. Mass. 1997). The Speaker court declined to decide which view to follow, instead finding a waiver under either view as to the subject of perception distortion only, but not any other subject. There, the party, a defendant, raised perception distortion as a possible defense by testifying to it in his deposition, and by submitting an expert report on this subject. Id. at 1120. Nevertheless, because the party represented that he did not intend to introduce any other evidence of his mental state on any other topic discussed with his psychotherapist, no other topics were found to be waived. Id.
Here, the counter-claim alleges emotional distress as special damages only. Counterclaim at ¶ 9. (Docket #5.) There is no separate claim for emotional distress. Sauer did designate four other treating therapists as witnesses, indicating they had all treated him for emotional distress; however, he did not list O'Sullivan-Brynjolfsson as a witness. (Docket #12 at ¶¶ 6-8.) Sauer did testify to severe stress prior to Samaan's statements; however, Sauer and O'Sullivan-Brynjolfsson both indicate that he saw this therapist on a few occasions for marital counseling only. O'Sullivan-Brynjolfsson's declarations states that her time with Sauer and his wife was so negligible that she did not provide actual treatment to them. O'Sullivan-Brynjolfsson Decl., ¶ 2. This therapist also had three sessions with Sauer alone, but states that this therapy was strictly for marriage counseling and included no treatment for emotional distress. Id. at ¶ 3.
It is true that under either test discussed above, plaintiff may have waived a privilege as to his emotional state because he seeks damages for emotional distress in his counterclaim, he testified to severe and significant stress in his deposition, and he has disclosed as witnesses the names of four therapists who treated him for emotional distress. As in Speaker, however, this court finds that Sauer did not waive the privilege as to his sessions with O'Sullivan-Brynjolfsson because they were limited to marriage counseling and any waiver applies to emotional distress only. The declaration of the above counselor is sufficient evidence that the subject of emotional distress was not raised during this treatment.
Second, Samaan claims that Sauer expressly waived the privilege when he signed a written authorization allowing the release of these records to Sauer's wife who in turn could re-disclose the records. Oppo., Ex. C. A review of the "Authorization to Disclose Protected Health Information," indicates that it was signed by Kurt Sauer and Shannon Wilde and disclosure was limited to "myself or spouse or any necessary medical provider." Disclosure was limited to the purpose of "insurance billing or as needed," and the specific use or limitation of the information was for "insurance billing as needed." Id. (emphasis added.)
This authorization was signed by both spouses on April 13, 2006, and authorization was given until the "end of treatment or 2 years." Id. Plaintiff's amended motion to quash states that he and his ex-wife sought marriage counseling from O'Sullivan-Brynjolfsson in 2005. He does not state when he saw this therapist on his own, but states that he disclosed the estimated dates at his deposition. Pl.'s Am. Mot. at 2:11; Reply at 4:11.
The court fails to find an express waiver from this document. First, the authorization was intended to be used for treatment of both spouses during marriage counseling, as evidenced by the dual signatures. It was not intended to apply to treatment of Sauer by himself. Second, the document, when read as a whole, indicates that it limits disclosure for insurance billing only. The use of the word "or" in one part of the authorization will not be interpreted to expand use or disclosure of the records where this word was clearly eliminated in a later section of the document where disclosure was limited to insurance billing only. Third, Sauer's ex-wife obtained the records only by her failure to disclose to the therapist that she was no longer married to Sauer. O'Sullivan-Brynjolfsson states in her declaration that she provided the "records with the mistaken belief that Ms. Wilde remained Mr. Sauer's spouse." O'Sullivan-Brynjolfsson Decl., ¶ 5. She states that she was "completely unaware" of the ensuing litigation between Sauer and Wilde. Id.; ¶ 6. Because Wilde as the recipient of the records obtained them with unclean hands, an argument of waiver of privilege is untenable. Finally, the fact that Wilde may have waived any privilege by obtaining the documents does not waive the privilege for Sauer as he is a separate holder of the privilege.
Assuming as the parties do that marital counseling records are included within a psychotherapist privilege, the court finds that under Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923 (1996), the privilege is absolute, i.e., not subject to a balancing test, and there has been no waiver.
CONCLUSION
Accordingly, IT IS ORDERED that:
1. Defendant and counter-claimant Sauer's amended motion to quash subpoena and for a protective order, filed November 28, 2007, is granted. Ms. O'Sullivan-Brynjolfsson shall not be produced for deposition or production of records.
2. Sauer's motion for order barring deposition of Ms. O'Sullivan-Brynjolfsson, and for protective order, filed January 7, 2008, and set for hearing on February 21, 2008, is vacated as moot.