D.C. Circuit, patient-psychotherapist privilege

An interesting DC Circuit decision by Chief Judge Ginsburg, joined by Judges Kavanaugh and Brown, holding that if the plaintiff does not seek damages for emotional stress, the employer cannot seek confidential records from the psychotherapist, even though the plaintiff's complaint acknowledges that the plaintiff suffered from depression.

Some excerpts follow:

Koch v. Securities and Exchange Commission, No. 06-5134 (D.C. Cir. June 15, 2007)

http://pacer.cadc.uscourts.gov/docs/common/opinions/200706/06-5134a.pdf

GINSBURG, Chief Judge:

Randolph Koch sued his employer, the Securities and Exchange Commission, under the Civil Rights Act of 1964, the Americans with Disabilities Act, the Rehabilitation Act, and the Age Discrimination in Employment Act. When the SEC then attempted to serve a subpoena for confidential records relating to communications between Koch and his psychotherapist, Koch moved to quash the subpoena. The district court denied the motion on the ground that Koch, by placing his mental state in issue, had impliedly waived the psychotherapist-patient privilege. The court ordered Koch's psychotherapist to produce confidential records and ordered Koch to make her available for a deposition. Koch appeals, arguing he did not waive the psychotherapist-patient privilege and therefore his communications with his therapist are privileged and not discoverable. We agree and hence reverse the order of the district court.

. . . Before this court it is perfectly clear, even if it was not before the district court, that Koch has abandoned any claim the district court may have thought he made for damages due to emotional stress. That does not, however, moot the district court's decision and the SEC's argument that Koch put his mental state in issue by acknowledging he suffers from depression. We therefore must decide whether a plaintiff puts his mental state in issue in such a way as to waive the psychotherapist-patient privilege by acknowledging he suffers from depression.

. . . We are aware of only two cases in the federal courts of appeals addressing the question whether a party has waived the psychotherapist-patient privilege. See Doe v. Dairy, 456 F.3d 704 (7th Cir. 2006); Schoffstall v. Henderson, 223 F.3d 818 (8th Cir. 2000). Both were Title VII cases in which the plaintiff sought recovery for emotional distress. In Doe v. Dairy the Seventh Circuit stated without unnecessary elaboration: "If a plaintiff by seeking damages for emotional distress places his or her psychological state in issue, the defendant is entitled to discover any records of that state." 456 F.3d at 718. In Schoffstall, the Eighth Circuit said only that it found "persuasive" certain district court cases concluding that, just as a client waives the attorney-client privilege when he "places the attorney's representation at issue, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue" when he or she makes a claim for emotional distress. 223 F.3d at 823.

. . . Accordingly, we hold that a plaintiff does not put his mental state in issue merely by acknowledging he suffers from depression, for which he is not seeking recompense; nor may a defendant overcome the privilege by putting the plaintiff's mental state in issue. A plaintiff who makes no claim for recovery based upon injury to his mental or emotional state puts that state in issue and thereby waives the psychotherapist-patient privilege when, consistent with the Supreme Court's analogy in Jaffee, 518 U.S. at 10-11, he does the sort of thing that would waive the attorney-client privilege, such as basing his claim upon the psychotherapist's communications with him, see, e.g., Mueller & Kirkpatrick, Evidence at § 5.30; or, as with the marital privilege, "selectively disclos[ing] part of a privileged communication in order to gain an advantage in litigation," Lavin, 111 F.3d at 933 (citation omitted). . . .

III. Conclusion

Because the district court erred in concluding Koch waived the psychotherapist-patient privilege, either impliedly or expressly, the orders of the district court denying Koch's motion to quash and compelling Aron to testify and produce documents relating to her treatment of Koch are Reversed.

Alan R. Kabat, Bernabei & Wachtel PLLC