Dominguez v. Shaw et al

Filing 52

ORDER DENYING defendants' motion to compel (doc. 40). Signed by Judge Frederick J Martone on 8/12/2011.(KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Margaret Dominguez, Plaintiff, 10 11 vs. 12 Andrew Shaw, et. al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-1173-PHX-FJM ORDER 15 16 17 18 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). 19 Defendants move to compel plaintiff S.D. ("plaintiff") to produce all of his treatment 20 records from Bright Alternatives, Inc. Defendants argue that plaintiff's counseling records 21 are relevant because the counselor acknowledges in a letter that her notes contain statements 22 plaintiff made to her regarding his version of the events during the May 2009 alleged police 23 assault. Plaintiff asserts that the records are protected by the psychotherapist-patient 24 privilege established in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923 (1970). Moreover, 25 plaintiff contends that because he voluntarily dismissed all claims related to mental health 26 damages, the records are no longer relevant. 27 Federal common law governs assertions of privileges in federal-question cases, even 28 when there are pendent state law claims. Fed. R. Evi. 501 advisory committee note; Agster 1 v. Maricopa County, 422 F.3d 836, 839 (9th Cir. 2005). Here, it is clear that plaintiff's 2 treatment records are protected by the psychotherapist-patient privilege because he met with 3 a licensed counselor. Oleszko v. State Compensation Ins. Fund, 243 F.3d 1154, 1156-57 (9th 4 Cir. 2001) (extending the psychotherapist-patient privilege to counseling conducted by an 5 unlicensed counsel). 6 Defendants argue that plaintiff waived the privilege. When a plaintiff puts his 7 emotional condition at issue, he waives the privilege protecting his psychological records. 8 Maynard v. City of San Jose, 37 F.3d 1396, 1402 (9th Cir. 1994). Plaintiff voluntarily 9 dismissed all claims for emotional distress and any damages related to mental health issues, 10 so his emotional condition is no longer at issue. Defendants assert that plaintiff's mental state 11 at the time of the incident is still at issue. Because the counselor's letter states that plaintiff 12 "has an overactive fight-flight response," defendants contend those discussions are highly 13 relevant to plaintiff's behavior at the time of the incident. MTC, Exs. C, D. Upon further 14 review of the counselor's letter, however, it states that these symptoms began after the May 15 4, 2009 alleged police assault. Therefore, his discussions with the counselor are not relevant 16 to his mental state at the time of the incident. Moreover, the mere fact that plaintiff discussed 17 the incident with his counselor does not make the records relevant and discoverable. If that 18 were the case, practically all counseling records would be discoverable. 19 Therefore, we find that the records are protected by the psychotherapist-patient 20 privilege. Plaintiff has not waived the privilege because he dismissed all claims for 21 emotional distress and emotional damages. 22 23 24 ACCORDINGLY, IT IS ORDERED DENYING defendants' motion to compel (doc. 40). DATED this 12th day of August, 2011. 25 26 27 28 -2-

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