Weiland v. City of Concord et al

Filing 37

ORDER RE: DISCOVERY LETTER BRIEF RE: PRIVILEGE LOG DISPUTE. Signed by Magistrate Judge Jacqueline Scott Corley, granting 33 Administrative Motion to File Under Seal; granting 34 Administrative Motion to File Under Seal (ahm, COURT STAFF) (Filed on 10/20/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WALTHER WEILAND,

Case No. 13-cv-5570-JSC

Plaintiff,
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v.

ORDER RE: DISCOVERY LETTER
BRIEF RE: PRIVILEGE LOG DISPUTE

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CITY OF CONCORD, et al.,

Re: Dkt. Nos. 33, 34

Defendants.

United States District Court
Northern District of California

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Plaintiff Walther Weiland alleges that Defendants violated his civil rights during an

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incident wherein he was arrested by an off-duty police officer for Defendant City of Concord

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following a traffic accident. Now pending before the Court is a discovery dispute regarding

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redactions of Plaintiff’s medical records relating to his mental health from 2008 through the

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present. The Court previously ordered Plaintiff to provide unredacted copies of his medical

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records, but permitted him to withhold information regarding his mental health because he only

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sought garden variety emotional distress damages. After carefully considering the arguments and

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briefing submitted, including an in camera review of a sampling of documents, and having had the

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benefit of oral argument on October 2, 2014, the Court sustains Plaintiff’s privacy objections in

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part.

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BACKGROUND

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On February 17, 2013, Plaintiff Walther Weiland was involved in a traffic accident with

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Defendant Kevin Mansourian, an off-duty police officer for the City of Concord. Although the

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parties dispute who caused the accident, it is undisputed that after the accident the parties pulled

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over to the side of the road. The parties’ versions of events thereafter sharply diverge with each

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contending that the other party acted in an unprovoked road rage-like manner. Plaintiff contends

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that Defendant Mansourian, who was not wearing a uniform, charged towards Plaintiff screaming

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profanities, identifying himself as a police officer, and stating that Plaintiff was under arrest. (Dkt.

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No. 1 ¶ 18.) When Plaintiff asked to see Defendant Mansourian’s badge, Plaintiff alleges that

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Mansourian violently assaulted Plaintiff slamming him to the ground face-first and placing

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Plaintiff in a control hold with his hands behind his back and Defendant Mansourian on top of him

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with his knee in Plaintiff’s back. (Id. ¶ 18-19.) Plaintiff contends that he requested that Defendant

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Mansourian take his weight off him because he has a stent in his heart. (Id. ¶ 20.) Defendant

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contends that Plaintiff resisted arrest so he took Plaintiff to the ground and restrained him for

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about five minutes until the California Highway Patrol arrived. (Dkt. No. 14 ¶ 5.) Defendant also

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United States District Court
Northern District of California

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alleges that he thought Plaintiff was under the influence. (Id.)
Plaintiff alleges that he suffered severe physical injuries as a result of this incident,

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including but not limited to a radial head fracture of his right arm, bruised ribs, cuts, and

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lacerations. (Dkt. No. 1 ¶ 32.) He brings claims against Defendant Mansourian, the City of

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Concord, and City of Concord Chief of Police Guy Swanger for violation of his civil rights under

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state and federal law, as well as various state law claims. Plaintiff seeks compensatory and

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punitive damages.

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As part of Plaintiff’s initial disclosures he produced redacted versions of his Kaiser

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medical records from February 17, 2013 to the present. Following a discovery dispute, the Court

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ruled that he was required to produce unredacted versions of his medical records from 2008

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through the present because Plaintiff had waived his privacy rights with respect to these records by

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bringing this lawsuit seeking damages and thus putting at issue the extent of his medical injuries;

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however, the Court concluded that Plaintiff was not required to produce unredacted copies of his

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mental health records as Plaintiff only seeks garden variety emotional distress. (Dtk. No. 24.)

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Thereafter, the underlying discovery dispute arose regarding the discoverability of certain mental

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health records. Both parties submitted briefing regarding the matter and the Court reviewed a

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portion of the disputed documents in camera to evaluate the nature of the information being

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withheld as it related to Plaintiff’s mental health condition or treatment.

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DISCUSSION

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Rule 26 of the Federal Rules of Civil Procedure authorizes discovery “regarding any

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matter, not privileged, that is relevant to the claim or defense of any party.” Fed. R. Civ. P.

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26(b)(1). A party who resists discovery has the burden of demonstrating that it should not be

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allowed. Oakes v. Halvorseen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998) (citation

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omitted). As reflected by the language of Rule 26, a party may fulfill this burden by making a

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proper assertion of privilege. See Oakes, 179 F.R.D. at 284 (citing Fed. R. Civ. P. 26(b)(5); Walt

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Disney Co. v. DeFabiis, 168 F.R.D. 281, 283 (C.D. Cal. 1996)).

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In cases involving both state and federal claims where the evidence in question is relevant
to both the state a federal claims, federal privilege law applies. Fitzgerald v. Cassil, 216 F.R.D.

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United States District Court
Northern District of California

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632, 635 (N.D.Cal. 2003). Thus where, as here, Plaintiff alleges a Section 1983 claim as well as

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state law claims and the evidence would be relevant to damages claims under either, federal

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privilege law applies. See Stallworth v. Brollini, 288 F.R.D. 439, 442 (N.D. Cal. 2012).

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A. The Nature of the Privilege Asserted Here

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Plaintiff initially claimed privilege based on the federal psychotherapist-patient privilege.

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This privilege protects “confidential communications between a licensed psychotherapist and her

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patients in the course of diagnosis or treatment [] from compelled disclosure under Rule 501 of the

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Federal Rules of Evidence.” Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (footnote omitted). “Like

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other testimonial privileges, the patient of course may waive the protection.” Id. at 15 n.14. “In

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the wake of Jaffee, courts have struggled to determine the circumstances under which waiver of

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the psychotherapist-patient privilege occurs” which has resulted in a variety of approaches to

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waiver falling into three primary categories: the broad view, the limited broad view, and the

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narrow view of waiver. Stallworth, 288 F.R.D. at 443 (outlining the various approaches taken by

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district courts within the Ninth Circuit).

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The Court previously held that the privilege is not waived where, as here, Plaintiff is only

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seeking garden variety emotional distress damages; the Court thereby adopted the narrow view of

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waiver favored by courts within this District. See Stallworth, 288 F.R.D. at 443 (noting that

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“[w]hile the Ninth Circuit has yet to consider the standard, the courts in this district that have
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considered the matter in-depth and affirmatively adopted [] the narrow approach because it most

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closely follows the reasoning in Jaffee” and citing cases to this effect.) Plaintiff has since affirmed

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that he does not allege any “specific psychiatric injury or disorder or unusually severe emotional

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distress,” and that his emotional distress is limited to “what an ordinary person subjected to similar

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circumstances would experience,” but the distress is not ongoing, nor was it prolonged. (Dkt. No.

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34-2.). In addition, Plaintiff does not intend to call a mental health expert. Given these

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representations, which Plaintiff will be held to at trial, the Court concludes that Plaintiff has not

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waived the psychotherapist-patient privilege based on his allegations of emotional distress related

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to the incident. See Equal Employment Opportunity Comm’n v. Peters’ Bakery, No. 13-CV04507, 2014 WL 4648087, at *3 (N.D. Cal. Sept. 17, 2014) (finding no waiver where plaintiff

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United States District Court
Northern District of California

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only alleged “‘garden variety’ emotional distress damages and expressly stated that ‘there is no

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claim for a specific psychiatric injury or disorder; there is no claim of unusually severe distress,

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and Plaintiff will not have a mental health expert testify in its case.’”).
Although Plaintiff initially indicated that the information redacted from Plaintiff’s medical

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records at issue here was subject to the psychotherapist-patient privilege, at the hearing Plaintiff

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conceded that the privilege does not apply to the majority of the redacted information. Plaintiff

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has redacted three categories of information from the medical records: (1) information regarding

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his mental health diagnosis, (2) the names of prescriptions used to treat his mental health

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condition, and (3) descriptions of his mental health treatment.1

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The Court, having reviewed a sampling of the previously-produced records in camera,

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agrees that the psychotherapist-patient privilege does not apply to the majority of this information.

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Only a very small portion of the redactions, see, e.g., pages 2 (partial), 106 (partial), 113-116

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(partial), and 135, contain “confidential communications between a licensed psychotherapist and

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her patients in the course of diagnosis or treatment.” Jaffee, 518 U.S. at 15. The portions of these

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pages which do contain such communications are protected by the psychotherapist-patient

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privilege regardless of whether the mental health provider may have been Plaintiff’s primary care

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Plaintiff’s medical and mental health records are intermingled because his health care provider
provides fully integrated health care.
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physician rather than a psychotherapist, and as discussed supra, there has been no waiver of this

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privilege.

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Turning to the other redacted information, the majority of the redactions relate either to

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Plaintiff’s mental health diagnosis and medications he takes as a result of this diagnosis or to

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mental health treatment which predated the February 2013 incident—in particular, treatment

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which occurred in June and July 2012 (seven months prior to the incident). The question then is

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whether this information is relevant, and if so, whether it is shielded from disclosure under a

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general right to privacy.

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B. Relevance of the Withheld Information
The threshold inquiry with this, and any discovery dispute, is relevance. See Fed. R. Civ.

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United States District Court
Northern District of California

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P. 26(b) (Subject to the limitations imposed by Rule 26(b)(2)(C), “[p]arties may obtain discovery

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regarding any nonprivileged matter that is relevant to any party’s claim or defense....”). Relevant

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information encompasses “any matter that bears on, or that reasonably could lead to other matter

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that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders,

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437 U.S. 340, 351 (1978).

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As an initial matter, the Court notes that none of the redacted information concerns mental

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health treatment Plaintiff received following the incident. It is therefore not relevant to any claims

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related to damages. Defendant contends that the information is, however, relevant to whether

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something about Plaintiff’s mental health condition or the medication he may have been taking for

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his mental health condition contributed to the underlying incident in some way.

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Of the above categories of redacted information, the Court concludes that the only one

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which satisfies the threshold relevance inquiry is information regarding the prescriptions Plaintiff

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was taking at the time of the incident.2 The medication information is relevant to allow

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Defendants to develop their theory of the underlying incident; although it may not ultimately be

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admissible at trial, the question now is only relevance. In contrast, the information regarding

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Plaintiff’s mental health diagnosis and his treatment prior to the incident is not relevant.

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This does not include any information regarding the medication to which Plaintiff is allergic—
information regarding Plaintiff’s drug allergies has no relevance to the issues in this case.
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First, with respect to Plaintiff’s mental health diagnosis, Defendants can offer no more than

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speculation that Plaintiff’s mental health condition factored into the underlying incident with

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Defendant Mansourian. Notably, Defendants do not allege that Plaintiff was behaving erratically

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or that he presented a danger to himself or others once he exited the vehicle. Rather, Defendants

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allege that Defendant Mansourian believed that Plaintiff was under the influence and that he was

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resisting arrest. (Dkt. No. 14 ¶ 5.) These allegations are devoid of any facts which would suggest

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that Plaintiff’s mental health was a factor and Plaintiff has not withheld information regarding his

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prior treatment for alcoholism.

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Instead, Defendants ask the Court to infer that because a person has a certain mental health
condition they acted a certain way, but what is relevant is how they acted—not the condition;

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United States District Court
Northern District of California

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Defendants are free to question Plaintiff and other witnesses regarding his behavior. Defendants

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do not cite any case suggesting otherwise, and indeed, the legal framework governing excessive

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force cases confines the inquiry to the facts known to the officer at the time. A claim of excessive

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force is evaluated under the Fourth Amendment’s “objective reasonableness” standard. Graham v.

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Connor, 490 U.S. 386, 387 (1989). Under this standard, “[t]he reasonableness of a particular use

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of force must be judged from the perspective of a reasonable officer on the scene, rather than with

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the 20/20 vision of hindsight.” Id. at 396 (internal citation and quotation marks omitted). Further,

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“the question is whether the officers’ actions are objectively reasonable in light of the facts and

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circumstances confronting them.” Id. at 397 (internal citation and quotation marks omitted).

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Thus, the reasonableness of Defendant Mansourian’s conduct depends on Plaintiff’s behavior at

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the time of the incident and the totality of the circumstances present, not on whether his conduct

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was reasonableness in light of a post-hoc discovery of Plaintiff’s mental health status. See Jones

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v. City of Oakland, No. 12-1416, 2013 WL 4102228, at *2 (N.D. Cal. Aug. 12, 2013) (holding that

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information regarding a defendant police officer’s mental state was irrelevant under Graham

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because his “private mental health information is not necessary to determine whether his use of

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force against Plaintiff was constitutional.”). The Court likewise rejects Plaintiff’s “tit for tat

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suggestion” that Defendant Mansourian’s mental health is relevant under the same theory.

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Further, to hold that a plaintiff’s mental health condition is relevant would open the
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floodgates into discovery of a plaintiff’s mental health every time a civil rights excessive force

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action was filed. See, e.g., Verma v. Am. Express, No. 08-2702, 2009 WL 1468720, at *1 (N.D.

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Cal. May 26, 2009)(“A plaintiff does not put her mental or physical condition at issue through a

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simple sexual harassment claim asking compensation for having to endure an oppressive work

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environment or for wages lost following an unjust dismissal .... To hold otherwise would mean

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that every person who brings such a suit implicitly asserts he or she is mentally unstable,

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obviously an untenable proposition.”) (internal citation and quotation marks omitted). Allowing

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such discovery is contrary to the remedial purpose of civil rights statutes designed to ensure

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litigants access to the courts. See Fitzgerald v. Cassil, 216 F.R.D. 632, 639 (N.D. Cal.
2003)(finding that a narrow interpretation of the protections afforded by the psychotherapist-

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United States District Court
Northern District of California

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patient privilege would undermine the purpose of providing effective access to the judicial process

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in suits vindicating civil rights and seeking recovery for general damages) (internal citation and

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quotation marks omitted).

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Second, as to the treatment Plaintiff received for his mental health condition, and in

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particular, the treatment records from June-July 2012, these records are insufficiently close in time

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to the incident at issue to render them probative of Plaintiff’s conduct seven months later. See

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Bull v. City & Cnty. of San Francisco, No. 03-1840, 2003 WL 23857823, at *1 (N.D. Cal. Oct. 27,

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2003) (finding jail intake screening reports containing plaintiff’s mental health information “close

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in time to the days of [plaintiff]’s confinement are relevant and that, as a general matter, the more

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remote in time documents are the less relevant they are.”). It would be a different question if the

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records related to treatment Plaintiff had received immediately prior to the incident, but there is no

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evidence of such treatment before the Court.

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Thus, the Court concludes on the present record that Defendant has failed to demonstrate

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that Plaintiff’s mental health diagnosis or his treatment for that diagnosis received in the seven or

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more months prior to the incident are relevant to any of the claims or defenses asserted herein. 3

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The redacted statements of Plaintiff’s family members in the June-July 2012 medical records are
likewise irrelevant as they have nothing to do with the underlying incident.
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C. Privacy of Medical Records

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Having concluded that the information regarding which prescriptions Plaintiff was taking
at the time of the incident is relevant, the Court turns to Plaintiff’s privacy interest in this

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information. Courts recognize a general right to privacy which protects the confidentiality of

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one’s medical records. See Soto v. City of Concord, 162 F.R.D. 603, 618 (N.D. Cal. 1995) (citing

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Whalen v. Roe, 429 U.S. 589, 599-600 (1977)); see also Doe v. Attorney General of U.S., 941 F.2d

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780, 795–96 (9th Cir. 1991) (establishing that information regarding a person’s HIV status would

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fall within the ambit of the privacy protection afforded medical information). Medical records are

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also protected under the Health Information Portability and Accountability Act (“HIPAA”) 42

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U.S.C. section 299b–2; however, HIPAA allows disclosure of medical records in response to a

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United States District Court
Northern District of California

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court order. See 45 C.F.R. § 164.512(e)(1).

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Highly sensitive information regarding Plaintiff’s mental health diagnosis and treatment he

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has received for that diagnosis is unquestionably private personal information. It is thus covered

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by a general right to privacy; however, this “right is conditional rather than absolute and limited

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impairment of that right may be allowed if properly justified.” Caesar v. Mountanos, 542 F.2d

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1064, 1068 (9th Cir. 1976) “The resolution of a party’s privacy objection involves balancing the

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need for the information sought against the privacy right asserted.” Medina v. Cnty. of San Diego,

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No. 08-1252, 2014 WL 4793026, at *4 (S.D. Cal. Sept. 25, 2014). Compare Jaffee, 518 U.S. at

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17-18 (explicitly stating that the psychotherapist-patient privilege is not subject to a balancing

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test). “The more sensitive the information, the stronger the [] interest must be.” Doe v. Attorney

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Gen. of U.S., 941 F.2d 780, 796 (9th Cir. 1991).

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With respect to the limited category of information relevant here—that is, those

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medications Plaintiff was taking at the time of the incident as specified in his February 18, and 25

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2013 medical reports—the Court concludes that Plaintiff’s privacy interest in this information is

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outweighed by Defendants right to discover information related to Plaintiff’s physical state at the

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time of the incident, including whether he was taking medications which together or separately

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makes Defendants’ version of events more credible or may affect Plaintiff’s physical injuries.

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Again, this does not mean this information would be admissible at trial, it just means Defendants

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have the right to discover the information.

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D. Miscellaneous Issues with Plaintiff’s Redactions

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As discussed at the hearing, Plaintiff’s redaction from page 373 based on attorney-client

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privilege is overruled. The information from the top of the page is not covered by the attorney-

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client privilege.

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As for Plaintiff’s inadvertent disclosure of certain private mental health information,
Defendants are not allowed to use this information to question Plaintiff or other percipient

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witnesses. Although Defendants are allowed to pose hypotheticals to their experts regarding

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various matters, Defendants cannot inform the experts or others that Plaintiff has a particular

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United States District Court
Northern District of California

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mental health condition.

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CONCLUSION

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For the reasons set forth above, the Court sustains Plaintiff’s objections to producing the

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withheld information from his medical records, except with respect to the information regarding

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the prescriptions he was taking at the time of the incident as reflected in his February 18 and 25,

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2013 medical reports, and as otherwise set forth in Section C supra.

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The Administrative Motions to Seal at Docket Nos. 33 and 34 are GRANTED. This
Order disposes of the pending discovery dispute.

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IT IS SO ORDERED.
Dated: October 20, 2014
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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