FILED JUL 22 2019
SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT
ORDERED PUBLISHED
UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT
In re: BAP No. CC-18-1067-SFL
FRANK JAKUBAITIS, Bk. No. 8:13-bk-10223
Debtor. Adv. No. 8:15-ap-01020
FRANK JAKUBAITIS,
Appellant,
v. OPINION
CARLOS PADILLA, III; JEFFREY IAN GOLDEN; RICHARD A. MARSHACK,
Appellees.
Argued and Submitted on February 21, 2019 at Pasadena, California
Filed – July 22, 2019
Appeal from the United States Bankruptcy Court for the Central District of California
Honorable Theodor C. Albert, Bankruptcy Judge, Presiding Appearances: Appellant Frank Jakubaitis, on brief, pro se; Arash Shirdel of Pacific Premier Law Group argued for Appellees Carlos Padilla, Jeffrey Ian Golden, and Richard A. Marshack.
Before: SPRAKER, FARIS, and LAFFERTY, Bankruptcy Judges.
SPRAKER, Bankruptcy Judge:
INTRODUCTION
This appeal concerns a discovery dispute arising in an action to
revoke the chapter 71 discharges of Frank Jakubaitis and his wife Tara
Jakubaitis. The complaint named three plaintiffs: Carlos Padilla, Jeffrey
Golden (Mr. Jakubaitis’ chapter 7 trustee), and Richard Marshack (Mrs.
Jakubaitis’ chapter 7 trustee) (jointly, “Plaintiffs”). The complaint also
sought turnover of allegedly undisclosed assets.
Mr. Jakubaitis unsuccessfully sought a protective order barring
deposition questions arising from his counsel’s statements to the court that
certain medications he was taking made it “impossible to give meaningful
or accurate deposition testimony.” More specifically, Jakubaitis challenges
the portion of the order permitting the Plaintiffs to ask deposition
1 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
2 questions, “including but not limited to diagnosis, medication prescribed
and taken, purpose for the prescription, and side effects of drugs.” Order
Denying Motion For Protective Order (Feb. 20, 2018). Jakubaitis contends
that having to answer any questions on these subjects would violate his
psychotherapist-patient privilege.
Questions regarding the medication Jakubaitis is taking, how long he
has been taking the medication, and the side effects he is experiencing are
beyond the scope of the privilege, so long as the questions do not require
Jakubaitis to divulge communications between him and his
psychotherapist. However, questions regarding his diagnoses and the
purpose of the medication he is taking directly inquire into the advice of
his psychotherapist and hence are privileged.
Jakubaitis did not waive the privilege with respect to diagnoses and
purposes of his medication. On this record, neither of the two recognized
variants of privilege waiver doctrine have been triggered by Jakubaitis’s
disclosures or his litigation positions. Accordingly, we AFFIRM IN PART
and REVERSE IN PART.
FACTS
In January 2015, Plaintiffs commenced their adversary proceeding
under §§ 542 and 727(d). By all accounts, the litigation is highly contentious
and has generated a great deal of animosity. Even so, most of the facts we
rely on are procedural in nature and not subject to legitimate dispute.
3 In January of 2017, Plaintiffs noticed Jakubaitis’ deposition.2 On the
eve of the noticed deposition date, Jakubaitis served the Plaintiffs with an
opposition to the deposition notice. In relevant part, Jakubaitis stated
through his counsel of record, “the deponent is currently under the effects
of prescription medication which makes it impossible to give meaningful
or accurate deposition testimony.”
Jakubaitis did not attend the deposition as scheduled. Plaintiffs
thereafter sought and obtained an order compelling Jakubaitis’ attendance
at the deposition as well as $3,000 in sanctions.
On March 29, 2017, Jakubaitis filed his first motion for protective
order. In it, his counsel reiterated Jakubaitis’ prior statement that “the
effects of prescription medication make it impossible to give meaningful
and accurate deposition testimony.” He also stated through his counsel:
A deposition is part of the conflict-oriented nature of litigation. Face-to-face adversaries. Spontaneous responses. But as in any conflict, an aura of combat continues to hover, and combat produces casualties. The prescription medications can create an uneven field of battle by altering Defendant’s ability to respond, remember, and understand a question posed. This puts Defendant at risk of harassment and elevated aggravation
2 The deposition notice is attached to a declaration the Plaintiffs filed in support of a January 19, 2017 motion to compel. We can and do take judicial notice of the filing and contents of this motion to compel, as well as the other documents filed in the main case and the adversary proceeding. See Ozenne v. Bendon (In re Ozenne), 337 B.R. 214, 218 (9th Cir. BAP 2006) (citing O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 955, 957 (9th Cir. 1989)).
4 and stress during the deposition. This puts Defendant at risk of future harassment because the videotape would not present Defendant in the most responsive demeanor and state of mind.
Motion For Protective Order (Mar. 29, 2017) at 4:14-21. The bankruptcy
court denied the first protective order motion. Jakubaitis has not appealed
that order.3
The deposition eventually took place in June 2017. However, this did
not end the discovery dispute. At the deposition, Jakubaitis asserted that
his medication no longer was an obstacle to his deposition being taken, and
no longer was an issue, because he refrained from taking his medication on
the day of the deposition. He further maintained that he was cooperating
with the discovery as reflected by the deposition questions he did answer.
On the other hand, Jakubaitis refused to answer numerous questions
concerning, among other things, the medications he had been taking, their
side effects, and the causes of his claimed mental health issues.
Once again, Plaintiffs sought and obtained an order compelling
discovery from Jakubaitis, which required him to answer the unanswered
deposition questions. This order provided for the possibility of terminating
3 The order compelling attendance at the deposition and the order denying Jakubaitis’ first protective order motion are beyond the scope of this appeal. Even so, Jakubaitis’ above-referenced statements about the effect of his medications on his ability to testify and about his sensitivity to situations resembling combat are critical to this appeal. Plaintiffs’ contention that Jakubaitis waived the psychotherapist-patient privilege is based solely on these statements.
5 sanctions if Jakubaitis did not succeed in obtaining a protective order
restricting or eliminating the unanswered deposition questions and if
Jakubaitis continued to refuse to answer the questions posed. Jakubaitis has
not appealed this order either.
On January 10, 2018, Jakubaitis filed his second protective order
motion. Citing Jaffee v. Redmond, 518 U.S. 1 (1996), Jakubaitis claimed that
Plaintiffs’ deposition questions impinged on his psychotherapist-patient
privilege. He further maintained that this privilege was absolute and that
he had done nothing to waive it. More specifically, he contended that his
statements regarding his medications and their effect on his mental state
did not constitute a privilege waiver. He also pointed out that he had not
asserted any affirmative defenses raising any issue as to his mental
condition.
On January 18, 2018, Plaintiffs filed their opposition to the second
protective order motion. Among other things, Plaintiffs argued that
Jakubaitis had waived the privilege, or rendered it inapplicable, by placing
at issue his mental health. Even if the privilege were generally applicable
and not waived, Plaintiffs reasoned that their unanswered deposition
questions did not impinge on the privilege because the privilege only
covered communications and their deposition questions were not asking
for any communications.
On February 15, 2018, the bankruptcy court held a hearing on the
6 second protective order motion. In essence, the bankruptcy court ruled that
Jakubaitis’ statements about the effect of his medications on his clarity of
mind were troublesome because Jakubaitis had not disclosed sufficient
information to enable either the court or the Plaintiffs to meaningfully
assess Jakubaitis’ credibility or the accuracy of any of his testimony. To
address this concern, the court held that Plaintiffs were entitled to ask
questions regarding: “what the drugs were, what the side effects were, if
he’s feeling the effects of the side effects, those types of questions.“ See Hr’g
Tr. (Feb. 1, 2018) at 17:3-5. At the same time, the court agreed with
Jakubaitis that Plaintiffs should not be permitted to ask questions about
specific communications between Jakubaitis and his psychotherapist.
The bankruptcy court entered its order denying Jakubaitis’ second
protective order motion on February 20, 2018. The order in relevant part
provided as follows:
The motion is DENIED, except that Plaintiff[s] cannot ask questions regarding the specifics of conversations between Frank Jakubaitis and his psychotherapist. However, Plaintiffs can ask questions, including but not limited to diagnosis, medication prescribed and taken, purpose for the prescription, and side effects of drugs.
Order Denying Second Protective Order Motion (Feb. 20, 2018) at 2.
Jakubaitis timely appealed.
7 JURISDICTION
The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334
and 157(b)(2)(E) and (J). We have jurisdiction under 28 U.S.C. § 158.4
ISSUES
1. Did the bankruptcy court’s order permitting the Plaintiffs to ask
deposition questions relating to Jakubaitis’ mental health and his
medications cover information within the scope of the
psychotherapist-patient privilege?
2. Did Jakubaitis waive the psychotherapist-patient privilege?
STANDARD OF REVIEW
Issues regarding the scope of a privilege are reviewed de novo.
United States v. Ruehle, 583 F.3d 600, 606 (9th Cir. 2009).
Whether a privilege had been waived is a mixed question of law and
fact, also reviewed under the de novo standard. Tennenbaum v. Deloitte &
Touche, 77 F.3d 337, 340 (9th Cir. 1996).
When we review a matter de novo, we consider it anew, as if no
bankruptcy court ruling was rendered. Mele v. Mele (In re Mele), 501 B.R.
357, 362 (9th Cir. BAP 2013).
4 The order on appeal is interlocutory. Nonetheless, we previously granted leave to appeal, which affords us jurisdiction to hear appeals from non-final bankruptcy court orders. 28 U.S.C. § 158(a)(3); Giesbrecht v. Fitzgerald (In re Giesbrecht), 429 B.R. 682, 687 (9th Cir. BAP 2010).
8 DISCUSSION
A. Scope Of Privilege.
On appeal, Jakubaitis principally argues that the bankruptcy court
erred by construing too narrowly the scope of the psychotherapist-patient
privilege. According to Jakubaitis, Jaffee established a broad privilege that
includes: (1) the identity of medications the patient is taking; (2) when the
patient has taken them; and (3) what side effects the patient might have
experienced. This is the core information the Plaintiffs sought. Relying on
Jaffee, Jakubaitis posits that this information must be covered by the
privilege because it is inextricably intertwined with the treatments and
diagnoses he has received from his mental health care professional, which
goes to the heart of the psychotherapist-patient relationship.
In Jaffee, the Supreme Court recognized for the first time the existence
of a federal common law psychotherapist-patient privilege. Jaffee explained
that this privilege must exist in order to foster the efforts of
psychotherapists to protect and improve their patients’ mental health,
which Jaffee identified as “a public good of transcendent importance.” Jaffee,
518 U.S. at 11. Jaffee reasoned that, to enable mental health care
professionals to accurately diagnose and treat mental health issues, it was
imperative that the patient and psychotherapist be able to develop a
relationship of the utmost trust and confidence in which the patient feels
comfortable making “a frank and complete disclosure of facts, emotions,
9 memories, and fears.” Id. at 10. Because of the extremely personal,
sensitive, and potentially embarrassing nature of such information, the
absence of any privilege very likely would impede accurate diagnosis and
successful treatment of mental health conditions. Id. Jaffee also held that the
privilege had to be absolute – not qualified, limited, or conditioned on the
balancing of competing interests. Id. at 17-18. As Jaffee explained, the
uncertainty surrounding a limited privilege was “little better than no
privilege at all” in terms of encouraging the patient and the therapist to be
frank with each other, without fear that their confidential communications
later might have to be disclosed in litigation. Id.
The same concerns Jaffee considered in recognizing the existence and
absolute nature of the psychotherapist-patient privilege arguably could
justify extending the privilege to the Plaintiffs’ medication-related
questions. Jakubaitis argues that narrowly circumscribing the scope of the
privilege to exclude medication-related questions could impede treatment
of mental health issues. More specifically, he contends that such limitations
could chill the psychotherapist from prescribing medications, or the patient
from taking them. In other words, if the patient fears he later might have to
disclose any medications he or she has taken, he or she may refuse to take
them. This would seem to significantly undermine the therapeutic process
Jaffe sought to protect.
On the other hand, privileges generally are construed narrowly,
10 based on the longstanding rule disfavoring barriers to the discovery and
presentation of relevant, probative evidence. “‘When we come to examine
the various claims of exemption, we start with the primary assumption that
there is a general duty to give what testimony one is capable of giving, and
that any exemptions which may exist are distinctly exceptional, being so
many derogations from a positive general rule.’” Id. at 9 (quoting United
States v. Bryan, 339 U.S. 323, 331 (1950)); see also Ruehle, 583 F.3d at 607
(“because it impedes full and free discovery of the truth, the attorney-client
privilege is strictly construed”); Weil v. Investment/Indicators, Research &
Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981) (same).
Of greater concern, Jakubaitis’ broad construction of the
psychotherapist-patient privilege, if accepted, would extend Jaffee well
beyond its narrow holding. Jaffee recognized a federal common law
privilege for communications between the psychotherapist and the patient
in the course of diagnosis or treatment. Jaffee, 518 U.S. at 10–12, 18. Other
courts have applied the psychotherapist-patient privilege to
communications. See, e.g., United States v. Romo, 413 F.3d 1044, 1046–47 (9th
Cir. 2005); Equal Emp’t Opportunity Comm’n v. Cheesecake Factory, Inc., Case
No. C16-1942JLR, 2017 WL 3887460, at *4 (W.D. Wash. Sept. 6, 2017);
Fitzgerald v. Cassil, 216 F.R.D. 632, 635 (N.D. Cal. 2003); see also 2
Christopher B. Mueller and Laird C. Kirkpatrick, Fed. Evid. § 5:43 (4th ed.
2018) (“the [psychotherapist-patient] privilege covers conversations with
11 qualified psychiatrists, psychologists, and clinical social workers, meaning
professional therapists who are authorized (licensed or certified) to practice
in their callings.”) (emphasis added).
We acknowledge that Jaffee specifically declined to further define or
limit the scope of the privilege. 518 U.S. at 18. Instead, it reserved the scope
of the privilege for further development in future case law. Id. Nonetheless,
we think its references to the privilege as pertaining to “communications”
are telling. Also telling is Jaffee’s repeated comparison of the
psychotherapist-patient privilege to other testimonial privileges, including
the attorney-client privilege. More specifically, Jaffee noted that the
underlying rationale for the privileges and the holders’ ability to waive
them were the same for all testimonial privileges, including the
psychotherapist-patient privilege. Id. at 10, 15 n.14; see also Koch v. Cox, 489
F.3d 384, 389-90 (D.C. Cir. 2007) (analogizing psychotherapist-patient
privilege to attorney-client privilege in the context of privilege waiver);
Fitzgerald, 216 F.R.D. at 637 (same). As one leading treatise points out, it is
well-established that the attorney-client privilege does not cover non-
verbal, non-communicative conduct. See 2 Christopher B. Mueller and
Laird C. Kirkpatrick, Fed. Evid. § 5:17.
Furthermore, the language of proposed Federal Rule of Evidence 504
supports our interpretation of the privilege. While proposed Rule 504 never
was approved by Congress, it is considered persuasive authority on the
12 scope of the privilege. See Romo, 413 F.3d at 1047–48.5 The proposed rule
established a privilege tied to “confidential communications” between the
patient and his psychotherapist:
(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.
Proposed Fed. R. Evid. 504(b) (quoted in 56 F.R.D. at 241) (emphasis
added).
In sum, Jaffee is clear that the psychotherapist-patient privilege
applies to communications. In fashioning the privilege, the Supreme Court
relied upon the attorney-client privilege, which does not extend to non-
communicative conduct. Moreover, the general rule embodied in proposed
5 As explained in Romo:
The Proposed Rules were drafted by the Judicial Conference Advisory Committee on Rules of Evidence, approved by the Judicial Conference of the United States and by the Supreme Court, and submitted to Congress by the Chief Justice. Among the Proposed Rules were nine testimonial privileges, including a psychotherapist-patient privilege. Proposed Fed. R. of Evid. 501-513, 56 F.R.D. 183, 230-61 (1972). Congress did not adopt the Proposed Rules.
Romo, 413 F.3d at 1047 n.3 (case citations omitted).
13 Federal Rule of Evidence 504(b) disfavors broad construction of the
psychotherapist-patient privilege. Based on this, we are persuaded that
Plaintiffs’ questions regarding Jakubaitis’ medications and their side effects
are beyond the scope of the privilege. This appears to have been the focus
of the parties before the bankruptcy court. Accordingly, the only pertinent
facts currently at issue are the identities of the medications Jakubaitis is, or
was, taking and their effect on his ability to testify at his deposition. Those
operative facts are discoverable and not protected by the privilege.
Requiring Jakubaitis to disclose information regarding the medications he
has taken, the period of time he has taken them, and the extent and nature
of side effects he has suffered as a result of taking them, does not
constitute, or directly implicate, any communication he has had with his
psychotherapist. Consequently, questions on these topics are not within the
scope and protection of the psychotherapist-patient privilege.6
6 Even though we have concluded that the medication-related questions are not privileged, information regarding Jakubaitis’ medication likely is still subject to various statutory and constitutional confidentiality and privacy rights. The patient’s privacy rights in confidential medical and mental health information are legally distinct from the psychotherapist-patient privilege. See generally Caesar v. Mountanos, 542 F.2d 1064, 1067–68 & n.10 (9th Cir. 1976) (addressing interaction of state privilege law with federal and state privacy rights). The parties have not addressed any arguments related to such privacy rights in either the bankruptcy court or on appeal. We decline to address them further except to note that at oral argument before this Panel, Plaintiffs’ counsel acknowledged his clients’ willingness to stipulate to a protective order restricting further dissemination of any confidential information obtained during discovery regarding Jakubaitis’ medications.
14 While we find no error in the bankruptcy court’s decision to compel
Jakubaitis to answer questions regarding his medications and their side
effects, this does not end our inquiry. The bankruptcy court’s order also
permitted the Plaintiffs to ask questions regarding diagnoses and the
“purpose for the prescription[s].” This portion of the court’s order seems to
be at odds with the bankruptcy court’s oral ruling at the hearing on the
second protective order motion, which focused exclusively on “what the
drugs were, what the side effects were, if he’s feeling the effects of the side
effects, those types of questions.” See Hr’g Tr. (Feb. 1, 2018) at 17:3-5.
Moreover, in their opposition to Jakubaitis’ second protective order motion
filed in the bankruptcy court, Plaintiffs limited their focus exclusively to
the need to ask medication-related questions. As they stated, “[s]ince Frank
Jakubaitis has repeatedly indicated that he is under the influence of
prescription medication, it is important to determine: 1. what said
medication is; 2. how long Frank Jakubaitis has been taking the medication;
and, 3. the effect (or side effects) of the medication.” Opposition to Motion
For Protective Order (Jan. 18, 2018) at 5:11-14.
The Plaintiffs’ argument at the hearing on the second protective order
motion focused on the exact same questions. Indeed, there was no mention
at the hearing of a need for diagnoses or the medications’ purposes. The
Plaintiffs’ asserted need to ask these questions was raised for the first time
in the draft order they submitted to the court, which the court adopted and
15 entered. Still, the bankruptcy court’s order compels Jakubaitis to answer
the deposition questions on these items as well as the medication taken and
their side effects.
We do not understand how Jakubaitis could answer questions
meaningfully about his diagnoses or the purposes of his medications
without divulging his communications with his psychotherapist. Indeed,
such questions would go to the heart of the psychotherapist-patient
relationship, inasmuch as they directly seek information regarding advice
the mental health care professional made during the “course of diagnosis
[and] treatment.” Romo, 413 F.3d at 1047–48 (emphasis added).7 Nor have
Plaintiffs articulated any legitimate need for this information. We,
therefore, hold that Plaintiffs’ questions regarding diagnoses and the
purpose of his medications are within the scope of the psychotherapist-
patient privilege.
B. Waiver Analysis.
Plaintiffs have continually argued in the alternative that, even if the
information they seek falls within the psychotherapist-patient privilege,
Jakubaitis has waived the privilege with respect to these questions.
7 The risk to the privilege posed by specific questions is not at issue in this appeal. Neither party has presented us with particular disputed deposition questions. Instead, Jakubaitis has argued that the general deposition topics of his diagnoses and the purposes of his medications would infringe on his psychotherapist-patient privilege.
16 Notwithstanding Jaffee’s statement that the privilege is unconditional, it
specifically held that the privilege can be waived “like other testimonial
privileges.” 518 U.S. at 15 n.14. While it generally left the issue of waiver
for future case development, we consider it significant that it referenced
other testimonial privileges in the context of discussing waiver.
The bankruptcy court did not specifically rule on whether any waiver
occurred. Rather, the bankruptcy court’s decision was based on the belief
that none of the disputed deposition topics were protected by the privilege.
However, both parties addressed the waiver issue. If a waiver occurred,
such waiver might serve as an alternate ground for affirmance of the
bankruptcy court’s order. See, e.g., Lakhany v. Khan (In re Lakhany), 538 B.R.
555, 559 (9th Cir. BAP 2015) (holding that we may affirm on any ground
supported on the record); Nilsen v. Neilson (In re Cedar Funding, Inc.), 419
B.R. 807, 816 (9th Cir. BAP 2009) (same). And even though the bankruptcy
court did not address the waiver issue, we can address the issue because
the de novo standard of review applies to privilege waiver questions,
Tennenbaum, 77 F.3d at 340, and because the conduct supposedly causing
the waiver is not subject to any factual dispute. Simply put, the waiver
question presented in this appeal is purely one of law that we may address
in the first instance. Cf. Mano–Y & M, Ltd., v. Field (In re Mortg. Store, Inc.),
773 F.3d 990, 998 (9th Cir. 2014) (holding that appellate court may address
issue not addressed below if it is purely one of law and does not depend on
the factual record, or the relevant part of the record is fully developed).
17 With respect to the attorney-client privilege, the Ninth Circuit has
identified and defined two distinct waiver doctrines applicable to
privileges: voluntary waiver and waiver by implication. Bittaker v.
Woodford, 331 F.3d 715, 718–20 & n.4 (9th Cir. 2003) (en banc). We discuss
each of these two doctrines separately.
1. Express Or Voluntary Waiver.
The first variant is express or voluntary waiver. It occurs “when a
party discloses privileged information to a third party who is not bound by
the privilege, or otherwise shows disregard for the privilege by making the
information public.” Id. at 719. The underlying purpose of the voluntary
waiver doctrine is “to prevent prejudice to a party and distortion of the
judicial process that may be caused by the privilege-holder’s selective
disclosure during litigation of otherwise privileged information.” Von
Bulow v. von Bulow (In re von Bulow), 828 F.2d 94, 101 (2d Cir. 1987)
(emphasis added).
Accordingly, when the privilege holder makes selective disclosures
of privileged information during discovery or in pretrial proceedings –
such as in support of a summary judgment motion or in a request for
provisional relief – “forensic fairness” dictates that the privilege is waived
as to all privileged information on the same subject matter. Restatement
(Third) of the Law Governing Lawyers § 79, cmt. f (2000); see also Weil, 647
F.2d at 24 (“voluntary disclosure of the content of a privileged attorney
communication constitutes waiver of the privilege as to all other such
18 communications on the same subject.”). The privilege holder bears the
burden to establish that the privilege has not been waived. United States v.
Martin, 278 F.3d 988, 999–1000 (9th Cir. 2002); Weil, 647 F.2d at 25.
The express waiver doctrine applies to the psychotherapist-patient
privilege. See Koch, 489 F.3d at 390-91; see also Cheesecake Factory, Inc., 2017
WL 3887460, at *6 (“a patient waives the privilege as to confidential
communications he discloses to third-party providers for purposes of
obtaining benefits.”).
We can easily dispose of the express waiver doctrine. Absolutely
nothing in the record indicates that Jakubaitis has selectively disclosed
privileged information. Furthermore, Plaintiffs’ waiver argument – both in
the bankruptcy court and on appeal – has been based solely on the
statements Jakubaitis made in advance of his deposition regarding the
effect of his medications on his ability to testify, and regarding the combat-
like nature of deposition practice. In light of our holding regarding the
narrow scope of the psychotherapist-patient privilege, neither of these
statements amounts to a disclosure of privileged information. Thus, no
express or voluntary waiver occurred here.
2. Implicit Waiver.
The second waiver variant is waiver by implication. Generally
speaking, an implicit waiver occurs when the holder of the privilege takes
some affirmative action in the litigation that puts at issue privileged
information. United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999).
19 Typically, such affirmative actions consist of the assertion of a claim for
relief or a defense. See, e.g., Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162
(9th Cir. 1992) (advice of counsel defense); Stallworth v. Brollini, 288 F.R.D.
439, 443 (N.D. Cal. 2012) (intentional infliction of emotional distress claim).
However, other positions asserted in the course of litigation may also be
sufficient to trigger the implied waiver doctrine. See, e.g., Bittaker, 331 F.3d
at 718–20 (habeas petition based on ineffective assistance of counsel);
Amlani, 169 F.3d at 1195-96 (attorney disparagement argument made in
support of criminal defendant’s contention that his Sixth Amendment right
to counsel was violated) .
The extent and nature of this waiver is dictated by concerns of
fairness. In essence, the court imposing the implied waiver is saying to the
privilege holder: “[i]f you want to litigate this claim [or defense], then you
must waive your privilege to the extent necessary to give your opponent a
fair opportunity to defend against it.” Bittaker, 331 F.3d at 720.
In the context of the attorney-client privilege, the Ninth Circuit
employs a three-part test to determine whether an implicit waiver has
occurred. Amlani, 169 F.3d at 1195. First, the party asserting the privilege
must have engaged in an “affirmative act” that led that party to assert the
privilege. Id. Second, the asserting party’s affirmative act must have put the
privileged information at issue. Id. And third, application of the privilege
must deprive the adverse party of information “vital to its defense.” Id.
The criminal defendant in Amlani asserted that the prosecutor
20 effectively had deprived him of his right to counsel by making disparaging
comments about his criminal defense counsel. The defendant maintained
that these disparaging comments led him to fire his counsel and replace
him with less experienced counsel. Id. at 1191. Amlani held that the
defendant’s attorney disparagement claim had placed at issue
communications between the defendant and his counsel regarding his
reasons for substituting in new counsel. Id. at 1195. Thus, Amlani concluded
that the first two prongs of the implicit waiver test were satisfied. Id.
As for the third prong, Amlani explained that it is satisfied only when
the adverse party has a genuine need for the privileged information to
counter the assertion or claim that placed the privileged information at
issue. Id. According to Amlani, that need was evident there. Id. at 1195-96.
Amlani reasoned that the prosecution could not, in fairness, be expected to
respond to the attorney disparagement claim without being afforded access
to privileged communications regarding the substitution of counsel. Id. at
1196.
Many cases have extended the implicit waiver doctrine to the
psychotherapist-patient privilege. See Alois v. SkyWest Airlines, Case No. CV
10-2030 RGK(JCX), 2011 WL 13042434, at *2 (C.D. Cal. Apr. 4, 2011) (partial
listing of cases); Fitzgerald, 216 F.R.D. at 636 (same). For purposes of this
privilege, the Ninth Circuit has not defined what constitutes an affirmative
act sufficient to satisfy the first and second prongs of the Amlani implicit
waiver test. And there is considerable disagreement among district courts
21 on this issue. As one district court recognized:
In the wake of Jaffee, courts have struggled to determine the circumstances under which waiver of the psychotherapist-patient privilege occurs. Some courts have taken a broad approach to waiver, finding, for example, that mere assertion of a claim for emotional distress damages is enough to justify a finding of waiver. These cases focus on fairness considerations. Other courts have taken a narrow approach, holding that there must be an affirmative reliance on the psychotherapist-patient communication before the privilege is waived. These latter cases are based on the primacy of the privacy interest that is inherent in the privilege. Finally, some courts have taken a “limited broad view” in which they have found waiver where a plaintiff has alleged more than “garden variety” emotional distress and has instead alleged emotional distress that is “complex” or has resulted in specific disorders.
Stallworth, 288 F.R.D. at 443 (internal citations omitted) (quoting Boyd v.
City & Cty. of S.F., No. C-04-5459 MMC (JCS), 2006 WL 1390423, at *5 (N.D.
Cal. May 18, 2006)); see also Fitzgerald, 216 F.R.D. at 636-39 (examining at
length different approaches to implicit waiver of the psychotherapist-
patient privilege and adopting the narrowest approach).
Here, we do not need to wade into the murky waters surrounding the
question of whether the implicit waiver doctrine might be narrower in
scope in the psychotherapist-patient privilege context than it is in the
attorney-client privilege context. We can assume without deciding that the
first and second prongs of the Amlani implied waiver test were satisfied
here when Jakubaitis asserted that the medications he was taking made it
22 “impossible to give meaningful or accurate deposition testimony.” This
assertion arguably placed at issue not only the identity of the medications,
and the length of time he had been taking them, but also the diagnoses
related to these medications and the purposes for which he was taking
them.
Even if we assume, however, the first and second prongs of the
Amlani test have been met, on this record it is obvious that the third prong
– regarding the need for the privileged information – decidedly has not
been met. The issue regarding Jakubaitis’ ability to testify no longer is a
live issue. The bankruptcy court ordered Jakubaitis to submit himself for
his deposition, and he did so. Furthermore, Jakubaitis repeatedly has stated
that he ceased taking his medication on the day of the deposition, so his
medication no longer was preventing him from accurately testifying.
Under these circumstances, there is no indication that Plaintiffs genuinely
needed privileged information regarding Jakubaitis’ diagnoses and the
purposes of his medications to counter any assertion by Jakubaitis.
Put differently, the record demonstrates that Jakubaitis has
abandoned the assertion that formerly placed at issue his mental state and
his ability to testify. Under both Amlani and Bittaker, absent a real and
continuing need for the privileged information, an implied waiver will not
be imposed. Bittaker, 331 F.3d at 720; Amlani, 169 F.3d at 1195-96.
The Plaintiffs have expressed the fear that, based on the litigation
positions Jakubaitis took in his discovery papers, he will in the future seek
23 to amend or add a defense that he could not have intentionally and
purposefully lied in his bankruptcy schedules because he was taking
medication at the time that either rendered him incapable of forming such
an intent or rendered him incapable of accurately filling out his schedules,
through no fault of his own. We know of no implicit waiver cases applying
the doctrine based on the mere possibility that the privilege holder might
in the future affirmatively act in a way that puts privileged information at
issue. Moreover, such a broad interpretation of the waiver doctrine is
inconsistent with Amlani’s and Bittaker’s explanation of the scope of the
doctrine. That explanation focuses on what the privilege holder actually is
doing, rather than what he or she might do in the future. See Bittaker, 331
F.3d at 718-20.8
The portion of the bankruptcy court’s order directing Jakubaitis to
answer questions about his diagnoses and the purposes of his medications
impinged on his psychotherapist-patient privilege. Based on the record on
appeal, he has not waived the privilege. Accordingly, the portion of the
bankruptcy court’s order compelling Jakubaitis to answer deposition
questions concerning any diagnosis or purpose for medication constitutes
reversible error.
8 In any event, the bankruptcy court has the discretion to preclude evidence from Jakubaitis, if appropriate, to the extent he later attempts to add defenses calling into question his mental health. See Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1195–96 (9th Cir. 2001).
24 C. Alleged Creation Of A New Privilege Exception.
There is one other argument we must address. Jakubaitis contends
that, by conducting a balancing test, the bankruptcy court effectively
created a new exception to the psychotherapist-patient privilege. As
Jakubaitis puts it, this so-called exception is at odds with Jaffee’s holding
that the privilege is absolute. He additionally complains that this
“exception” is not authorized or permitted by the Bankruptcy Code, citing
Law v. Siegel, 571 U.S. 415, 421 (2014).
This argument has no merit. The bankruptcy court only used its
balancing test to ensure protection of Jakubaitis’ privacy and
confidentiality interests, which extend beyond the scope of the privilege.
As we stated above, the patient’s privacy rights in confidential medical and
mental health information are legally distinct from the psychotherapist-
patient privilege. See Caesar, 542 F.2d at 1067–68 & n.10.9 Unlike the
privilege, which Jaffee described as absolute and unqualified, privacy rights
are not absolute. Rather, they are subject to compelling state interests.
Courts can employ balancing tests to address the competing interests for
9 Caesar deals with the interaction of state privilege law with federal and state privacy rights. We only rely on Caesar to the extent of its examination of the privacy rights. State privilege law has no application to this appeal. State privilege law applies only when the evidence sought relates exclusively to state law claims. Dynamic Fin. Corp. v. Kipperman (In re N. Plaza, LLC), 395 B.R. 113, 122 (S.D. Cal. 2008) (citing Fed. R. Evid. Rule 501; Agster v. Maricopa Cty., 422 F.3d 836, 839 (9th Cir. 2005)); see also Sony Elecs., Inc. v. Hannastar Display Corp. (In re TFT-LCD (Flat Panel) Antitrust Litig.), 835 F.3d 1155, 1158 (9th Cir. 2016) (holding that when evidence relates to both federal and state claims, federal common law governs privilege issues).
25 and against disclosure of the confidential information. Id.; accord Stallworth,
288 F.R.D. at 444 (holding that the privacy right “is not absolute and, unlike
the psychotherapist-patient privilege . . . is subject to a balancing test”).
One of the recognized competing public interests is ensuring “that
truth is ascertained in legal proceedings in its courts of law.” Caesar, 542
F.2d at 1069. Here, the bankruptcy court conducted a balancing test. In
doing so, its predominant concern was the ability of Jakubaitis to
selectively disclose confidential mental health information to undermine
the court’s ascertainment of the truth:
Moreover, viewed as a balancing test, Defendant cannot be allowed to interject self-serving claims of treatment or medication every time he is asked about awkward subjects or contradictions in testimony. Since his credibility is central to this case, such a free-floating means of evasion would work a serious disadvantage to the Plaintiff that the law cannot countenance.10
The court’s balancing of interests also is reflected in its efforts to
narrowly tailor the breadth of the required disclosure and to restrict further
10 This quotation is taken from the court’s tentative ruling, which Jakubaitis included in his excerpts of record without any objection from the Plaintiffs. The bankruptcy court never specifically adopted its tentative ruling as its final ruling. Even so, the court made comments at the hearing expressing the same concern about protecting the court’s ability to meaningfully assess Jakubaitis’ credibility. The court also expressed concern that allowing Jakubaitis to baldly claim without further disclosure that his medications affected his ability to accurately answer questions and his ability to understand those questions would effectively give him a license to lie under oath, without any opportunity for the adverse party to challenge the claim. See Hr’g Tr. (Feb. 15, 2018) at pp. 3, 6, 11-12.
26 dissemination. The court took into consideration Jakubaitis’ concerns
regarding the potential for abuse of the disclosed confidential information.
It addressed those concerns by suggesting ways to restrict the further
spread of the disclosed confidential information. It also addressed those
concerns by warning the Plaintiffs that unauthorized dissemination of the
information could result in severe legal consequences.
In short, the bankruptcy court’s use of a balancing test for these
purposes was permissible and appropriate. Therefore, we reject Jakubaitis’
“new exception” argument.
CONCLUSION
For the reasons set forth above, we AFFIRM IN PART and REVERSE
IN PART the bankruptcy court’s order denying Jakubaitis’ second
protective order motion.