Noe v. R.R. Donnelley & Sons
MEMORANDUM Opinion and Order Signed by the Honorable Martin C. Ashman on 4/12/2011:Mailed notice(tlp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
R.R. DONNELLEY & SONS,
Case No. 10 C 2018
Judge Sharon Johnson Coleman
Martin C. Ashman
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant R.R. Donnelley & Sons' ("Donnelley") motion to compel
discovery responses from Plaintiff Michael Noe ("Noe"). Noe brought this suit against
Donnelley, his former employer, alleging violations of the Family and Medical Leave Act
("FMLA"), 29 U.S.C. § 2601 et seq., common law retaliation, and the Illinois Whistleblower
Act, 740 ILCS 174/1 et seq. According to Noe, Donnelley terminated him in July, 2007 and then
rehired him after he notified his employer that he had been absent on approved FMLA leave. In
April, 2008, however, Noe was again terminated, after which he initiated this lawsuit.
Donnelley subsequently issued its first set of interrogatories and documents seeking, in
part, information related to any medical or psychological treatment that Noe received for
emotional distress allegedly caused by Donnelley's acts. Noe declined to produce the requested
information on the ground that it is privileged and that he has not waived the privilege because
his emotional distress allegations constitute only a "garden variety" claim. Donnelley
subsequently brought the instant motion seeking the production of evidence on a range of issues.
On February 23, 2011, the Court granted Donnelley's motion in part and denied it in part but
declined to rule on requests related to the emotional distress claim until Noe proffered testimony
on that issue. Based on a careful review of Noe's proffer and Donnelley's response, the Court
finds that Donnelley's motion to compel should be denied on this issue.
In his proffer of testimony, Noe states that he was worried about losing his job for several
months before his April, 2008 termination because of bad performance reviews and other
write-ups he received, even though his absences were allegedly covered by the FMLA. These
worries continued for several months after his termination, as increased financial pressures led
him to wonder how he could make ends meet. Despite these anxieties, however, Noe states that
he will testify at trial that he never sought treatment for himself from a psychiatrist or took any
medication for a psychological condition, and he will not present any expert testimony or
mental-health records to support his claim for emotional distress damages. Accordingly, Noe
argues, he alleges only a garden variety distress claim that does not waive the
The Court agrees with this analysis. Federal courts recognize a privilege between a
patient and a "licensed psychotherapist." Jaffe v. Richmond, 518 U.S. 1, 15 (1996). Like all
testimonial privileges, a plaintiff can waive the protections that attach to psychological
treatment. See id. at 15 n.14. "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."
Doe v. Oberweis Dairy, 456 F.3d 704, 718 (7th Cir. 2006). As a number of courts in this Circuit
have recognized, however, the psychotherapist-patient relationship is not waived when a plaintiff
does not intend at trial to offer evidence of consultations with a psychotherapist or rely on expert
testimony concerning the distress allegedly caused by a defendant's actions. See, e.g., Hucko v.
City of Oak Forest, 185 F.R.D. 526, 529 (N.D. Ill. 1999); Adams v. Ardcor, 196 F.R.D. 339, 344
(E.D. Wis. 2000) ("Given the importance of the interests advanced by the psychotherapist patient
privilege, the court does not deem it proper to find a waiver based solely upon the inclusion of a
request for damages based on emotional distress."); Taylor v. ABT Electronics, Inc., No. 05 C
576, 2007 WL 1455842, at *2 (N.D. Ill. May 14, 2007) (noting that garden variety distress
damages are not medically based "but rather compensation for humiliation, embarrassment, and
similar emotions"); Santos v. The Boeing Co., No. 02 C 9310, 2003 WL 23162439, at *1
(N.D. Ill. Oct. 21, 2003) ("The fact that Santos seeks damages for emotional distress does not in
itself justify allowing Boeing to pry into Santos' mental health records.").
Donnelley argues that the facts involved here are distinguishable from those in Hucko
because the plaintiff in that case was required to submit his mental health records to the District
Court for in camera review and that by not doing so here, Noe is attempting to thwart the
discovery process. (Reply at 3.) While the court did conduct an in camera review in Hucko, as
Donnelley states, its finding that the psychotherapist-patient privilege had not been waived was
not based on that review. As the court noted, it determined that no waiver arose because the
plaintiff unequivocally stated that he would not offer evidence of psychological treatment or
other expert testimony regarding his emotional distress. Hucko, 185 F.R.D. at 529 ("[P]laintiff
has not waived the privilege in the communications that the defendants seeks [sic] to obtain
because he has not taken the affirmative step in the litigation to place that diagnosis or treatment
in issue.") (internal quote omitted). Accordingly, Donnelley has not shown any meaningful
distinction between the facts of this case and those in Hucko.
Donnelley also argues that discovery is warranted because Noe's mental health records
are relevant to his claim and that by invoking a privilege Noe is attempting to "substitute the
evidentiary rules for the discovery rules." (Reply at 3.) The fact that evidence may be relevant,
however, does not automatically require its production when a privilege applies. Federal Rule of
Civil Procedure 26 explicitly distinguishes between relevance and privilege by stating that the
"[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's
claim or defense." Fed. R. Civ. P. 26(b)(1) (emphasis added). Indeed, privileges often protect
information that is relevant to the litigants' dispute. See United States v. BDO Seidman, 337 F.3d
802, 810-11 (7th Cir. 2003) (discussing the attorney-client privilege). As such, no evidence
supports Donnelley's claim that Noe is attempting to side-step the normal discovery process in
this case in order to protect evidence that should otherwise be disclosed.
Donnelley further argues that Noe's proffer that he did not consult a psychiatrist fatally
conflicts with his deposition testimony that he saw a "therapist." (Def's. Resp. at 2.) The record,
however, does not show any conflict between Noe's proffer and statements made at his
deposition. In his proffer, Noe states that he will testify that he never sought treatment from a
psychiatrist. Noe was asked in his deposition if anyone at Donnelley had ever recommended that
he seek "counseling," and in response, Noe testified that he had met with a person named Nancy
Merbitz. (Def.'s Mot., Ex. D at 183-84.) Nothing in the record suggests that Ms. Merbitz is a
psychiatrist – a medical doctor – or even a licensed psychotherapist.1 Noe does not state in his
Jaffee only protects the relationship between a patient and a "licensed psychotherapist."
Jaffee, 518 U.S. at 15. Donnelley does not argue that Merbitz does not fall within this category,
nor does it ask the Court to conduct an in camera review to determine whether a privilege
actually exists. Instead, Donnelley's argument assumes that a privilege applies but that Noe "has
proffer that he never saw a "counselor" or a mental health professional; he only states that he
never consulted a psychiatrist and that he will not offer evidence related to any medical or
psychological treatment related to his emotional distress claim. Accordingly, no conflict exists
between Noe's proffer and deposition testimony.
For these reasons, the Court finds that Noe's allegations concerning emotional harm
constitute a garden variety distress claim that does not place his psychological state at issue in
such a way that would waive the psychotherapist-patient privilege. Thus, Noe is not required to
disclose records concerning any psychological treatment he may have received as a result of his
termination by Donnelley, and the Motion to Compel Discovery [Dckt. 27] is denied on this
Dated: April 12, 2011.
MARTIN C. ASHMAN
United States Magistrate Judge
waived any privilege and privacy interests he may have had relating to the same." (Def's. Mot.
at 4.). Donnelley's only reference to an in camera review alleges that Noe has refused to allow
the Court to conduct a confidential review of his medical records, (Reply at 3), but the Court is
unaware of any evidence supporting this claim.