Santelli v. Electro-Motive

188 F.R.D. 306, 1999 U.S. Dist. LEXIS 18418, 1999 WL 635449
CourtDistrict Court, N.D. Illinois
DecidedAugust 19, 1999
DocketNo. 97 C 5702
StatusPublished
Cited by39 cases

This text of 188 F.R.D. 306 (Santelli v. Electro-Motive) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Santelli v. Electro-Motive, 188 F.R.D. 306, 1999 U.S. Dist. LEXIS 18418, 1999 WL 635449 (N.D. Ill. 1999).

Opinion

MEMORANDUM OPINION AND ORDER

KENNELLY, District Judge.

This matter is before the Court on the defendant Electro-Motive’s objections to Magistrate Judge Rosemond’s June 16, 1999 Order denying its motion to compel the production of plaintiffs medical records. Plaintiff Mary Santelli brought suit under Title VII for damages resulting from defendant’s alleged sex discrimination and retaliation. Plaintiff claims she was unlawfully discriminated against on account of her sex when she was denied certain welding positions at defendant’s factory. Her complaint includes an allegation that her damages included “mental distress.” Second Amended Complaint, 1113. Plaintiff testified at her deposition that she was seeking compensation for emotional distress caused by the alleged discrimination and that she had seen a psychotherapist for treatment of this distress. This prompted Electro-Motive to move to compel production of plaintiffs medical records — specifically, records of psychotherapy, alcohol and drug treatment, and HIV testing — on the theory that these records are probative of whether her alleged emotional distress was caused by factors other than the sex discrimination she says she endured. Defendant argued that by making a claim of emotional distress, plaintiff had waived any privileges that might otherwise prevent production of these records.

In arguing this motion before Judge Rosemond, plaintiffs attorney represented that plaintiff would seek compensatory damages only for humiliation and embarrassment, not for emotional distress. Based on this representation, Judge Rosemond denied defendant’s motion to compel, but he also precluded plaintiff from “testifying about any emotional distress that necessitated care or treatment by a physician,” limiting her emotional distress damages to “humiliation, embarrassment, anger, disgust, frustration, and similar emotions.” Order of June 16, 1999 at 2-3. Electro-Motive has filed objections to Judge Rosemond’s Order.

This Court reviews Magistrate Judge Rosemond’s order to determine if it is clearly erroneous or contrary to law. See Fed.R.Civ.P. 72(a) (“The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.”); Chicago Police Association v. City of Chicago, 76 F.3d 856, 869 (7th Cir.1996). For the reasons stated below, we overrule defendant’s objections.

I. Records of psychotherapy

The Supreme Court has recognized a federal psychotherapist-patient privilege. Jaffee v. Redmond, 518 U.S. 1, 15-16, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). Confidential communications between a patient and a licensed psychotherapist (or the equivalent), during the course of diagnosis or treatment, are privileged and protected from discovery. Id. The interest underlying the psychotherapist-patient privilege was clearly articulated by the Court: it facilitates the “provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Jaffee, 518 U.S. at 11, 116 S.Ct. 1923. The psychotherapist-patient relationship depends on “an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.” Id. at 10, 116 S. Ct. 1923. “If the privilege were rejected, confidential conversations between psycho[308]*308therapists and their patients would surely be chilled ...” Id. at 11, 116 S.Ct. 1923.

In Jaffee, the Court recognized that like other privileges, the psychotherapist-patient privilege can be waived. Jaffee, 518 U.S. at 15 n. 14, 116 S.Ct. 1923. The Court, however, did not define the contours of the privilege, such as when or how it can be waived. Id. at 18, 116 S.Ct. 1923. These issues were left to be worked out on a case-by-case basis. Id.

Although communications between a psychotherapist and patient may be relevant to a particular issue in a case or significant to the party opposing the privilege, that alone is not enough to deprive a party of this privilege. By definition, privileges exclude from a case otherwise relevant information. See, e.g., Matter of Grand Jury Proceeding, Cherney, 898 F.2d 565, 567 (7th Cir.1990) (explaining that the attorney-client privilege has the effect of withholding relevant information from the fact finder).

One way a privilege holder can waive the privilege is by affirmatively putting the privileged communications directly at issue in a lawsuit. Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 n. 1 (7th Cir.1995) (“the attorney-client privilege is generally waived when the client asserts claims or defenses that put his attorney’s advice at issue in the litigation.”). Illustrative of this principle are medical and legal malpractice cases. A person who brings such a case waives any applicable privileges: she cannot allege malpractice in her attorney’s representation or psychotherapist’s treatment but at the same time expect her communications with the person she has sued to remain privileged.

The issue here is whether a Title VII plaintiff puts privileged communications with her psychotherapist at issue, and thus waives her privilege, by seeking to recover damages for emotional distress. See 42 U.S.C. § 1981a (b)(3) (damages for emotional pain, suffering, mental anguish, and loss of enjoyment of life are recoverable in cases of intentional employment discrimination). The lower federal courts are split as to when a party seeking such damages waives the privilege. One approach is that the privilege is deemed waived only when the plaintiff introduces privileged communications in evidence either directly or by calling the particular psychotherapist as a witness. See, e.g., Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229 (D.Mass.1997). The problem with this narrow waiver rule is that it would enable a party who had undergone psychotherapy to offer at trial only the testimony of a retained, non-treating expert and thereby prevent discovery of 'what she had told her treating psychotherapist. Among other things, this would allow the party to provide the expert with a selective “history,” while preventing the veracity of that history from being tested by comparing it to what the party had reported to her treating psychotherapist. We find this result unacceptable, as it would allow the privilege holder to thwart the truth seeking process by using the privilege as both a shield and a sword. See Allen v. Cook County Sheriff’s Department, No. 97 C 3625, 1999 WL 168466, at * 2 (N.D.Ill. March 17, 1999) (“the defendants should have ample opportunity to scrutinize the basis for the opinions of Allen’s therapists if she attempts to elicit therapist testimony or evidence to prove her damages caused by her alleged emotional distress.”); EEOC v. Danka Industries, Inc., 990 F.Supp.

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Bluebook (online)
188 F.R.D. 306, 1999 U.S. Dist. LEXIS 18418, 1999 WL 635449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santelli-v-electro-motive-ilnd-1999.