Dominguez v. Shaw et al
Filing
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ORDER DENYING defendants' motion to compel (doc. 40). Signed by Judge Frederick J Martone on 8/12/2011.(KMG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Margaret Dominguez,
Plaintiff,
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vs.
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Andrew Shaw, et. al.,
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Defendants.
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No. CV 10-1173-PHX-FJM
ORDER
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The court has before it defendants' motion to compel plaintiff's medical records (doc.
40), plaintiff's response (doc. 45), and defendants' reply (doc. 50).
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Defendants move to compel plaintiff S.D. ("plaintiff") to produce all of his treatment
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records from Bright Alternatives, Inc. Defendants argue that plaintiff's counseling records
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are relevant because the counselor acknowledges in a letter that her notes contain statements
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plaintiff made to her regarding his version of the events during the May 2009 alleged police
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assault. Plaintiff asserts that the records are protected by the psychotherapist-patient
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privilege established in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923 (1970). Moreover,
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plaintiff contends that because he voluntarily dismissed all claims related to mental health
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damages, the records are no longer relevant.
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Federal common law governs assertions of privileges in federal-question cases, even
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when there are pendent state law claims. Fed. R. Evi. 501 advisory committee note; Agster
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v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005). Here, it is clear that plaintiff's
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treatment records are protected by the psychotherapist-patient privilege because he met with
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a licensed counselor. Oleszko v. State Compensation Ins. Fund, 243 F.3d 1154, 1156-57 (9th
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Cir. 2001) (extending the psychotherapist-patient privilege to counseling conducted by an
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unlicensed counsel).
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Defendants argue that plaintiff waived the privilege. When a plaintiff puts his
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emotional condition at issue, he waives the privilege protecting his psychological records.
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Maynard v. City of San Jose, 37 F.3d 1396, 1402 (9th Cir. 1994). Plaintiff voluntarily
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dismissed all claims for emotional distress and any damages related to mental health issues,
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so his emotional condition is no longer at issue. Defendants assert that plaintiff's mental state
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at the time of the incident is still at issue. Because the counselor's letter states that plaintiff
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"has an overactive fight-flight response," defendants contend those discussions are highly
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relevant to plaintiff's behavior at the time of the incident. MTC, Exs. C, D. Upon further
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review of the counselor's letter, however, it states that these symptoms began after the May
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4, 2009 alleged police assault. Therefore, his discussions with the counselor are not relevant
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to his mental state at the time of the incident. Moreover, the mere fact that plaintiff discussed
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the incident with his counselor does not make the records relevant and discoverable. If that
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were the case, practically all counseling records would be discoverable.
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Therefore, we find that the records are protected by the psychotherapist-patient
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privilege. Plaintiff has not waived the privilege because he dismissed all claims for
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emotional distress and emotional damages.
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ACCORDINGLY, IT IS ORDERED DENYING defendants' motion to compel
(doc. 40).
DATED this 12th day of August, 2011.
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