Buchholtz v. Rogers benefit Group, Inc. et al

Filing 15

ORDER Resolving Joint Motions for Determination of Discovery Disputes (ECF No. 14 ). Signed by Magistrate Judge David H. Bartick on 4/18/2013. (knb)(jrd)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 STACEY BUCHHOLTZ, 11 12 13 14 Civil No. Plaintiff, v. ROGERS BENEFIT GROUP, INC., Defendant. 12-cv-2167-BEN (DHB) ORDER RESOLVING JOINT MOTIONS FOR DETERMINATION OF DISCOVERY DISPUTES [ECF No. 14] 15 16 On April 3, 2013, Plaintiff Stacey Buchholtz and Defendant Rogers Benefit Group, 17 Inc. (“RBG”) filed a document entitled “Joint Motions for Determination of Discovery 18 Disputes: 1) Responses to Document Request; 2) Compliance With Subpoena; 3) Responses 19 to Deposition Questions; and 4) Quash Subpoena for Psychological Records.” (ECF No. 20 14.) The parties request the Court’s assistance in resolving several discovery issues that have 21 arisen among them that have not been resolved despite diligent meet and confer efforts. 22 23 24 After a thorough review of the parties’ arguments and evidence, the Court issues the following Order to resolve the issues in dispute. I. PLAINTIFF’S ALLEGATIONS 25 Plaintiff was employed by RBG as a Regional Sales Manager from February 2008 to 26 August 5, 2011. (Compl., at ¶ 5; ECF No. 1-2.) She was hired at RBG with the promise that 27 she would be promoted to manager of RGB’s San Diego office. (Id.) Prior to working at 28 RBG, Plaintiff worked for and was highly compensated by Warner Pacific Insurance 12cv2167-BEN (DHB) 1 Services, Inc. (“Warner Pacific”). (Id. at ¶ 6.) In January and February 2008, Dennis 2 Sullivan, manager of RBG’s San Diego office, approached Plaintiff and asked her to end her 3 employment with Warner Pacific and instead work for RBG. (Id. at ¶ 7.) In order to induce 4 Plaintiff to join RBG, Sullivan assured Plaintiff, both verbally and in writing, that she would 5 be promoted to the position of manager in 2010. (Id. at ¶¶ 12-13.) Sullivan also set forth 6 in writing the level of financial compensation that Plaintiff would receive during the years 7 2011 through 2014 after being promoted to manager in 2010. (Id. at ¶ 12.) 8 Sullivan’s representations to Plaintiff were made in order to allow Sullivan and RBG 9 to “avail themselves of Plaintiff’s outstanding reputation, talents, and skills and reap the 10 economic benefits thereof,” including allowing Sullivan and RBG to “take over, and convert 11 to their own control and for their own financial benefit, the broker relationships that Plaintiff 12 had cultivated [while with Warner Pacific] and from which existing broker relationships 13 Plaintiff derived substantial economic benefit.” (Id. at ¶¶ 8-9.) However, Sullivan and RBG 14 intentionally failed to disclose that RBG would not elevate Plaintiff to manager, that Sullivan 15 did not intend to retire, and that even if Sullivan did retire Plaintiff would not be promoted 16 to manager. (Id. at ¶ 10.) 17 As a result of the verbal and written representations made by Sullivan, Plaintiff 18 ultimately agreed to leave Warner Pacific and begin working with RBG. (Id. at ¶ 13.) 19 Plaintiff was also induced to transfer her existing broker relationships from Warner Pacific 20 to RBG. (Id.) Plaintiff’s performance for RBG was “exemplary in that [she] exceeded all 21 sales expectations, exceeded all sales records for RBG San Diego, and grossed over $14.5 22 million in sales each year, 2008 and 2009.” (Id. at ¶ 14.) 23 While employed by RBG, Plaintiff earned an annual salary and guaranteed bonus in 24 excess of $176,549, plus benefits including twenty-one days of paid vacation per year. (Id. 25 at ¶ 15.) Plaintiff accrued a total of eighty-four days of vacation while employed with RBG. 26 (Id.) 27 The parties initially acted in accordance with the promised expectation that Plaintiff 28 would be promoted to manager, as demonstrated by RBG giving Plaintiff the largest office 2 12cv2167-BEN (DHB) 1 available, giving her the title of Special Representative (as opposed to other salespeople 2 referred to as Field Representatives) and Plaintiff assuming managerial duties including 3 overseeing others in the workplace, instituting policies and methods governing and tracking 4 vacation time, purchasing office furniture, assuming expenditures in excess of $13,094.91 5 and recruiting a salesperson (i.e., Melissa Medve) of her own caliber and talent to replace 6 her presence on the sales team. (Id. at ¶¶ 16-20.) In addition, RBG ordered and authorized 7 the transfer of each of Plaintiff’s twenty-nine broker relationships to Medve “leaving 8 Plaintiff with just a handful of marginally productive broker relationships.” (Id. at ¶ 21.) 9 Subsequent to the transfer of Plaintiff’s broker relationships to Medve, RBG broke its 10 promise of promoting Plaintiff to manager, and RBG refused to compensate Plaintiff the 11 amount promised for the years 2011 through 2014. (Id. at ¶¶ 22-23.) RBG also refused to 12 transfer the broker relationships back to Plaintiff, despite her requests so that she could 13 continue to have an income. (Id. at ¶¶ 24-25.) RBG staff, particularly Sullivan, criticized 14 Plaintiff’s lack of earnings, openly mocked Plaintiff and subjected Plaintiff to humiliation 15 and demeaning criticism. (Id. at ¶ 26.) RBG refused to fully reimburse Plaintiff for the 16 $13,094.91 she expended on office furniture and other items. (Id. at ¶ 27.) 17 On August 5, 2011, RBG terminated Plaintiff after Sullivan presented her with a 18 spreadsheet demonstrating that her earnings exceeded her sales, which was the result of RBG 19 and Sullivan having converted Plaintiff’s broker relationships and refusing to promote her 20 to manager. (Id. at ¶ 28.) Since Plaintiff’s termination, RBG has failed to compensate 21 Plaintiff for waiting time penalties or wages earned, including salary, guaranteed bonus and 22 accrued vacation days. (Id. at ¶¶ 29-30.) 23 II. DISCUSSION 24 The parties filed their joint motion requesting the Court’s assistance in resolving four 25 discovery disputes: (1) whether RBG should be compelled to provide supplemental 26 responses to Plaintiff’s Request for Production of Documents Nos. 9-14 and 16-19; (2) 27 whether the Court should quash Plaintiff’s subpoena to Sullivan seeking his financial and 28 retirement account records; (3) whether Sullivan should be compelled to provide deposition 3 12cv2167-BEN (DHB) 1 testimony concerning the condition of his financial and retirement accounts; and (4) whether 2 the Court should quash RBG’s subpoena to Plaintiff’s psychotherapist seeking Plaintiff’s 3 psychological records. 4 A. Requests for Production of Documents 5 The parties represent that there exists “disagreements as to . . . RBG’s assertion of 6 objections and partial noncompliance with Plaintiff’s” Requests for Production of 7 Documents. (ECF No. 14 at 8:9-11.)1 In conjunction with their joint motion the parties filed 8 a chart showing the discovery issues in dispute, including the Requests for Production of 9 Documents. (ECF No. 14-16.) That document contains Plaintiff’s requests and RBG’s 10 responses and objections to Request Nos. 9-14 and 16-19. (Id. at 1-5.) However, the parties’ 11 joint motion does not include a discussion of the parties’ respective positions about these 12 Requests. Rather, the only discussion about Plaintiff’s Requests is Plaintiff’s discussion 13 about Request No. 14 (ECF No. 14 at 9:21-11:10) and RBG’s conclusory statement that it 14 “has produced to Plaintiff the income and expense data for the Carlsbad office and all other 15 RBG offices for the years 2005 through 2012.” (Id. at 18:10-12.) 16 Because neither party provided the Court with briefing concerning Request for 17 Production Nos. 9-13 and 16-19, the Court does not address those Requests and will not, at 18 this time, order RBG to supplement its responses or produce documents in response to those 19 Requests. The parties are encouraged to continue to meet and confer in an effort to resolve 20 these disputes informally taking into account the Court’s conclusions herein. If the parties 21 remain unable to resolve these disputes, they shall file a joint motion for determination of 22 discovery dispute on or before May 3, 2013. The joint motion shall separately address each 23 of the Requests that remain in dispute. 24 Request No. 14 seeks the following documents: “Copies of any and all records, 25 communications, or other documents or ESI relating to all monies received by RBG from 26 any production attributed to RBG’s San Diego office for each year during the period January 27 28 1 Page numbers for docketed materials cited in this Order refer to those imprinted by the Court’s electronic case filing system. 4 12cv2167-BEN (DHB) 1 1, 2005 through the present.” (ECF No. 14-16 at 2.) RBG responded to Request No. 14 as 2 follows: “RBG objects to this Request on the grounds that it is irrelevant to the issues in this 3 lawsuit, is not reasonably calculated to lead to the discovery of admissible evidence, violates 4 RBG’s right to financial privacy, and it is overbroad and unduly burdensome. RBG also 5 objects to this Request to the extent that it calls for RBG’s confidential and proprietary 6 financial information.” (Id. at 2-3.) 7 Plaintiff contends that income generated by RBG’s San Diego branch is relevant 8 because: (1) her alleged promised compensation was based, at least in part, on the San Diego 9 branch’s income; and (2) RBG’s income is necessary to calculate the value of restitution or 10 disgorgement of profits based on RBG’s alleged wrongful interference with Plaintiff’s 11 broker relationships. (ECF No. 14 at 9:21-11:10.) 12 Litigants “may obtain discovery regarding any nonprivileged matter that is relevant 13 to any party’s claim or defense.” FED. R. CIV. P. 26(b)(1). In addition, “[f]or good cause, 14 the court may order discovery of any matter relevant to the subject matter involved in the 15 action. Relevant information need not be admissible at the trial if the discovery appears 16 reasonably calculated to lead to the discovery of admissible evidence.” Id. The relevance 17 standard is thus commonly recognized as one that is necessarily broad in scope in order “to 18 encompass any matter that bears on, or that reasonably could lead to other matter that could 19 bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 20 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). However 21 broadly defined, relevancy is not without “ultimate and necessary boundaries.” Hickman, 22 329 U.S. at 507. Accordingly, district courts have broad discretion to determine relevancy 23 for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 24 Here, the Court agrees with Plaintiff that the documents sought by Request No. 14 are 25 relevant to Plaintiff’s claims. RBG’s objection that the request is overbroad and unduly 26 burdensome are unpersuasive. Request No. 14 specifically seeks documents demonstrating 27 RBG’s income or “monies received” by the San Diego branch from January 1, 2005 through 28 the present. The Court finds the requested time period appropriate. The years in which 5 12cv2167-BEN (DHB) 1 Plaintiff was employed by RBG are clearly relevant, and the several years prior to her 2 employment with RBG are also relevant in that Plaintiff may seek to compare RBG’s income 3 before and after her broker relationships were transferred to RBG. The time period from 4 Plaintiff’s August 2011 termination to the present is also relevant for the same reason given 5 that RBG maintains Plaintiff’s prior broker relationships. Further, RBG has made no 6 showing that compliance with this Request is unduly burdensome. In fact, RBG argues that 7 it has already produced the “income and expense data” for the relevant time period. (ECF 8 No. 14 at 18:10-12.) 9 With respect to RBG’s financial privacy objection, the Court finds that RBG’s interest 10 in maintaining the confidentiality of its financial information can be appropriately protected 11 by the Protective Order that has been entered in this action. (See ECF No. 6.) 12 Accordingly, RBG’s objections to Request for Production No. 14 are OVERRULED 13 and Plaintiff’s request that RBG be compelled to produce documents in response to this 14 Request is GRANTED. To the extent it has not already done so, RBG shall produce to 15 Plaintiff all documents responsive to Request for Production No. 14 on or before May 3, 16 2013. 17 B. Subpoena to Sullivan 18 Plaintiff seeks an order compelling Sullivan, a non-party to this action, to comply with 19 a subpoena requiring the production of documents concerning Sullivan’s financial and 20 retirement account information. (ECF No. 14 at 11:11-12:3; ECF No. 14-6.)2 Plaintiff 21 22 2 23 1) All document and writings (within the meaning of Federal Rules of Evidence 1001) and Electronically Stored Information (within the meaning of []Federal Rule of Civil Procedure 34(a)(1)(A)) relating to your total financial condition for each month during the period January 1, 2007 through the present, including but not limited to all assets, liabilities, retirement savings, and all other documents, data, or things that materially affected your total financial condition during that period, or for any part of it without limitation. 24 25 26 27 28 Plaintiff’s subpoena to Sullivan demands production of the following: 2) All documents and writings (within the meaning of Federal Rules of Evidence 1001) and Electronically Stored Information (within the meaning of []Federal Rule of Civil Procedure 34(a)(1)(A)) relating to your retirement planning, retirement savings, or communications relating to any intention or 6 12cv2167-BEN (DHB) 1 contends this information is relevant to Sullivan’s intent at the time he induced Plaintiff to 2 join RBG in 2008, specifically whether Sullivan intended to retire in 2010 and whether his 3 personal financial situation was adequate at that time to support a 2010 retirement. (ECF No. 4 14 at 11:11-12:3.) Plaintiff disputes Sullivan’s position that the documents constitute private 5 financial information that should not be disclosed. (Id. at 12:4-19.) Plaintiff contends there 6 is a compelling need for the production of these records because there is no alternative 7 manner of discovering information regarding Sullivan’s retirement plans, financial status and 8 motives for making certain promises to induce Plaintiff to join RBG. (Id.) 9 RBG and Sullivan3 contend that Plaintiff’s subpoena to Sullivan should be quashed 10 because it invades Sullivan’s privacy by requiring disclosure of personal income and 11 retirement planning information. (Id. at 18:10-18, 20:18-23:20.) RBG and Sullivan further 12 contend that the requested documents are not relevant to this litigation or reasonably 13 calculated to lead to the discovery of admissible evidence. (Id.) 14 The Court agrees with Plaintiff that the records sought by her subpoena to Plaintiff are 15 relevant or, at a minimum, reasonably calculated to lead to the discovery of admissible 16 evidence. However, relevancy alone is not sufficient when disclosure of the subpoenaed 17 documents would invade a non-party’s privacy. The California Supreme Court has 18 recognized that California’s constitutional right of privacy (see CAL. CONST., art. I, § 1) 19 “extends to one’s confidential financial affairs as well as to the details of one’s personal 20 life.” Valley Bank of Nev. v. Superior Court, 15 Cal. 3d 652, 656 (Cal. 1975). However, 21 “[t]he constitutional right of privacy does not provide absolute protection against disclosure 22 of personal information; rather it must be balanced against the countervailing public interests 23 in disclosure.” Hooser v. Superior Court, 84 Cal. App. 4th 997, 1004 (Cal. Ct. App. 2000) 24 (citing Vinson v. Superior Court, 43 Cal. 3d 833, 842 (Cal. 1987)). “In determining whether 25 26 27 28 consideration of retirement during the period January 1, 2005 through December 31, 2010. (ECF No. 14-6 at 4.) 3 Counsel for RBG also represent non-party Sullivan in connection with his objections to Plaintiff’s subpoena. 7 12cv2167-BEN (DHB) 1 disclosure is required, the court must indulge in a ‘careful balancing’ of the right of a civil 2 litigant to discover relevant facts, on the one hand, and the right of the third parties to 3 maintain reasonable privacy regarding their sensitive personal affairs, on the other.” Id. 4 (citing Schnabel v. Superior Court, 5 Cal. 4th 704, 712 (Cal. 1993)). “The court must 5 consider the purpose of the information sought, the effect that disclosure will have on the 6 affected persons and parties, the nature of the objections urged by the party resisting 7 disclosure and availability of alternative, less intrusive means for obtaining the requested 8 information.” Id. (citing Valley Bank, 15 Cal. 3d at 657-58). “Based on an application of 9 these facts, the more sensitive the nature of the personal information that is sought to be 10 discovered, the more substantial the showing of the need for the discovery that will be 11 required before disclosure will be permitted.” Id. (citing Johnson v. Superior Court, 80 Cal. 12 App. 4th 1050, 1070 (Cal. Ct. App. 2000); Hinshaw, Winkler, Draa, Marsh & Still v. 13 Superior Court, 51 Cal. App. 4th 233, 237 (Cal. Ct. App. 1996)). 14 In the instant case, the Court finds that records disclosing Sullivan’s financial 15 condition and retirement planning and accounts are protected under the California 16 Constitution’s right to privacy. However, documents or communications that simply 17 evidence Sullivan’s intent to retire (without disclosing his financial condition or account 18 information) are not. For example, Sullivan’s banking and retirement account statements are 19 protected, but a hypothetical correspondence to a superior at RBG indicting his intent to 20 retire would not be. 21 The Court further finds that Sullivan’s right to keep his financial and retirement 22 account information private outweighs Plaintiff’s need for the information. The Court 23 believes that, although relevant, the likelihood that disclosure of Sullivan’s financial and 24 retirement account information would lead to admissible evidence is remote. Indeed, any 25 claim by Plaintiff that Sullivan’s financial status was not adequate to retire in 2010 is 26 speculative, particularly because the amount of resources necessary to support retirement 27 varies widely from person to person. Accordingly, because disclosure of Sullivan’s financial 28 and retirement account information would invade his right to privacy under the California 8 12cv2167-BEN (DHB) 1 Constitution, and because such information is sought to pursue a speculative argument, the 2 Court believes that Sullivan’s interest in maintaining the privacy of these records outweighs 3 Plaintiff’s need for the records. 4 Moreover, Plaintiff is not left without alternative, less intrusive means to inquire into 5 Sullivan’s intent regarding whether he planned to retire in 2010. As noted above, Sullivan 6 is not entitled to withhold documents or communications relating to his plans or intent to 7 retire, if they exist, although any portions of those documents also containing financial 8 account information may be redacted. Further, Plaintiff has already questioned Sullivan 9 regarding his plans or intent to retire. (See, e.g., ECF No. 14-11 at 10-12.) The fact that 10 Sullivan’s testimony did not support Plaintiff’s allegations in this case does not justify 11 Plaintiff’s attempt to delve into Sullivan’s personal financial information. Finally, Plaintiff 12 is not precluded from seeking testimony from other witnesses concerning Sullivan’s alleged 13 intent to retire in 2010 and his alleged representations to Plaintiff of that intent. 14 Based on the above discussion, and pursuant to Federal Rule of Civil Procedure 15 45(c)(3)(A)(iii)4, the Court MODIFIES Plaintiff’s subpoena in that Sullivan is only required 16 to produce documents and electronically stored information evidencing his intent to retire, 17 if such documents exist and have not already been produced. To the extent such documents 18 also disclose Sullivan’s financial condition or account information, such information may 19 be redacted prior to production. Sullivan shall produce responsive documents on or before 20 May 3, 2013. 21 C. Sullivan’s Deposition Testimony 22 Plaintiff also seeks an order compelling Sullivan to respond to deposition questions 23 concerning his financial and retirement information. Specifically, Plaintiff “seeks an order 24 requiring Mr. Sullivan to provide testimony as to his own retirement information and as to 25 RBG’s financial information without limitation.” (ECF No. 14 at 13:1-3.) However, for the 26 reasons stated above, Plaintiff’s motion to compel further deposition testimony from Sullivan 27 4 28 Rule 45(c)(3)(A)(iii) provides that “[o]n timely motion, the . . . court must quash or modify a subpoena that . . . (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies.” (Emphasis added.) 9 12cv2167-BEN (DHB) 1 is DENIED. 2 D. Subpoena to Psychotherapist 3 Finally, Plaintiff seeks to quash RBG’s subpoena to her psychotherapist, Dr. Keith 4 Auerbach. The subpoena seeks production of Dr. Auerbach’s records related to Plaintiff’s 5 consultations with Dr. Auerbach and any drugs, therapies or treatments he administered to 6 Plaintiff, documents demonstrating Plaintiff’s psychiatric history, Dr. Auerbach’s 7 observation notes and any documents reflecting communications Dr. Auerbach had with 8 Plaintiff or with a third party about Plaintiff. (ECF No. 14-9 at 5:21-6:5.) 9 1. Parties’ Positions 10 Plaintiff contends that RBG’s subpoena to Dr. Auerbach should be quashed because 11 (1) the psychotherapist-patient privilege protects against disclosure of psychological records; 12 (2) the subpoena is overbroad; (3) the records sought are not directly relevant inasmuch as 13 Plaintiff has withdrawn her claim for emotional distress5 damages; and (4) RBG cannot 14 demonstrate a compelling public need for the disclosure of the records that outweighs 15 Plaintiff’s right to privacy. (ECF No. 14 at 13:4-16:28.) Plaintiff also argues that in the 16 event the Court is not inclined to quash the subpoena, the Court should review her 17 psychological records in camera prior to ordering disclosure. (Id. at 17:18-18:6.) 18 RBG contends that although Plaintiff has withdrawn her claim for emotional distress 19 damages, RBG is nevertheless entitled to discover Dr. Auerbach’s records because they are 20 relevant in that they will reflect whether Plaintiff “was complaining [to Dr. Auerbach] at the 21 time about not being made manager, not being paid what she was allegedly promised, not 22 ‘getting her brokers back,’ and whether she left RBG voluntarily or involuntarily.” (Id. at 23 24 25 26 27 28 5 Plaintiff also argues that the subpoena to Dr. Auerbach should be quashed because the parties had previously agreed in writing that Plaintiff would only assert “garden variety” emotional distress claims in exchange for RBG agreeing not to require Plaintiff to submit to a medical or mental examination. (ECF No. 14 at 17:1-17.) RBG contends that this agreement did not amount to RBG waiving its right to conduct other discovery into Plaintiff’s psychological records. (Id. at 26:17-25.) However, both parties now agree that Plaintiff has affirmatively withdrawn her claim for emotional distress damages. (Id. at 7:8.) Thus, the Court finds the parties’ prior agreement regarding “garden variety” emotional distress claims to be irrelevant to determining whether the psychotherapist-patient privilege applies. 10 12cv2167-BEN (DHB) 1 23:27-24:6.) 2 2. Analysis 3 As recognized by the California Supreme Court, California6 has enacted “a broad, 4 protective psychotherapist-patient privilege” to promote “an environment of confidentiality 5 of treatment [that] is vitally important to the successful operation of psychotherapy.” In re 6 Lifschutz, 2 Cal. 3d 415, 422 (Cal. 1970).7 The psychotherapist-patient privilege provides 7 that a “patient, whether or not a party, has a privilege to refuse to disclose, and to prevent 8 another from disclosing, a confidential communication between patient and psychotherapist.” 9 CAL. EVID. CODE § 1014. “[A] patient’s interest in keeping such confidential revelations 10 from public purview, in retaining this substantial privacy, has deeper roots than the 11 California statute and draws sustenance from our constitutional heritage.” Lifschutz, 2 Cal. 12 3d at 431. Indeed, “the confidentiality of the psychotherapeutic session falls within one” of 13 the “zones of privacy” guaranteed by the Bill of Rights. Id. at 431-32 (quoting Griswold v. 14 Conn., 381 U.S. 479, 484 (1965)). 15 However, “[t]here is no privilege . . . as to a communication relevant to an issue 16 concerning the mental or emotional condition of the patient if such issue has been tendered 17 by . . . [t]he patient.” CAL. EVID. CODE § 1016(a). Moreover, the psychotherapist-patient 18 privilege can also be waived by a patient who, “without coercion, has disclosed a significant 19 part of the [privileged] communication or has consented to such disclosure made by anyone.” 20 CAL. EVID. CODE § 912. 21 /// 22 23 6 26 7 As Plaintiff correctly recognizes (ECF No. 14 at 9:18-20), claims of privilege in this diversity action are governed by California privilege laws. See FED. R. EVID. 501 24 (“[I]n a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”); Star Editorial, Inc. v. Dist. Court, 7 F.3d 856, 859 25 (9th Cir. 1993). As recognized by the Supreme Court, “all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege.” Jaffe v. Redmond, 518 27 U.S. 1, 12 (1996). In addition, the privilege is recognized under federal law. Id. at 15 (holding “that confidential communications between a licensed psychotherapist and her 28 patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.”). 11 12cv2167-BEN (DHB) 1 2 As stated above, California Evidence Code § 1016(a) sets forth a “patient-litigant exception” to the psychotherapist-patient privilege. 7 The patient-litigant exception . . . allows only a limited inquiry into the confidences of the psychotherapist-patient relationship, compelling disclosure of only those matters directly relevant to the nature of the specific “emotional or mental” condition which the patient has voluntarily disclosed and tendered in his pleadings or in answer to discovery inquiries. Furthermore, even when confidential information falls within this exception, trial courts, because of the intimate and potentially embarrassing nature of such communications, may utilize the protective measures at their disposal to avoid unwarranted intrusions into the confidences of the relationship. 8 Lifschutz, 2 Cal. 3d at 431. “[S]ince the exception compels disclosure only in cases in which 9 the patient’s own action initiates the exposure, ‘intrusion’ into a patient’s privacy remains 10 essentially under the patient’s control.” Id. at 433. “In interpreting this exception [courts 11 should be] mindful of the justifiable expectations of confidentiality that most individuals 12 seeking psychotherapeutic treatment harbor.” Id. at 431. If the patient-litigant exception is 13 given too 3 4 5 6 14 15 16 17 18 19 broad an effect . . . it might effectively deter many psychotherapeutic patients from instituting any general claim for mental suffering and damage out of fear of opening up all past communications to discovery. This result would clearly be an intolerable and overbroad intrusion into the patient’s privacy, not sufficiently limited to the legitimate state interest embodied in the provision and would create an opportunity for harassment and blackmail. Id. at 435. Moreover, 22 [i]n light of these considerations, the “automatic” waiver or privilege contemplated by section 1016 must be construed not as a complete waiver of the privilege but only as a limited waiver concomitant with the purposes of the exception. Under section 1016 disclosure can be compelled only with respect to those mental conditions the patient-litigant has “[disclosed] . . . by bringing an action in which they are in issue. 23 Id. (quoting City & Cnty. of San Francisco v. Superior Court, 37 Cal. 2d 227, 232 (Cal. 24 1951)). 20 21 25 26 27 28 [C]ommunications which are not directly relevant to those specific conditions do not fall within the terms of section 1016’s exception and therefore remain privileged. Disclosure cannot be compelled with respect to other aspects of the patient-litigant’s personality even though they may, in some sense, be ‘relevant’ to the substantive issues of litigation. The patient thus is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which 12 12cv2167-BEN (DHB) 1 the patient-litigant himself has brought before the court. 2 Id. at 435; see also Roberts v. Superior Court, 9 Cal. 3d 330, 339 (Cal. 1973) (“[W]here 3 there is no specific mental condition of the patient at issue, and discovery of the privileged 4 communications is sought merely upon speculation that there may be a ‘connection’ between 5 the patient’s past psychiatric treatment and some ‘mental component’ of his present injury, 6 those communications should remain protected by the [psychotherapist-patient] privilege.”). 7 Finally, “[e]ven when the confidential communication is directly relevant to a mental 8 condition tendered by the patient, and is therefore not privileged, the codes provide a variety 9 of protections that remain available to aid in safeguarding the privacy of the patient.” 10 Lifschutz, 2 Cal. 3d at 437. For example, “the patient . . . may apply to the trial court for a 11 protective order to limit the scope of the inquiry or to regulate the procedure of the inquiry 12 so as to best preserve the rights of the patient.” 13 psychotherapist-patient privilege ‘is to be liberally construed in favor of the patient.’” 14 Lifschutz, 2 Cal. 3d at 437 (quoting Newell v. Newell, 146 Cal. App. 2d 166, 177 (Cal. Ct. 15 App. 1956)). Id. “[I]n general, the statutory 16 Here, any confidential communications between Dr. Auerbach and Plaintiff clearly 17 fall within the ambit of California’s psychotherapist-patient privilege. The question before 18 the Court is whether the patient-litigant exception applies. Whether Plaintiff has waived the 19 privilege is complicated by the fact that she initially sought to recover for emotional distress 20 damages. The Court has found no prior case addressing a situation analogous to the one 21 presented here, where initial emotional distress claims have been affirmatively withdrawn. 22 However, in recognition of the policy considerations supporting the privilege, including the 23 general recognition that the privilege should be applied liberally in favor of the patient, the 24 Court finds that because Plaintiff has affirmatively withdrawn her intent to pursue her 25 emotional distress claims there is presently no waiver of the privilege. Indeed, “there is no 26 specific mental condition of the patient at issue.” Roberts, 9 Cal. 3d at 339. 27 RBG’s argument that the communications between Dr. Auerbach and Plaintiff are 28 relevant is unpersuasive. Clearly, such communications would be relevant to the extent they 13 12cv2167-BEN (DHB) 1 encompassed discussions about Plaintiff not being made manager, her employment with and 2 salary from RBG and the reasons why she was no longer employed by RBG. However, 3 relevancy alone is insufficient when a privilege applies. 4 confidential communication should be disclosed in discovery simply because it is relevant 5 to the issues in dispute would essentially ameliorate the psychotherapist-patient privilege.8 6 The Court further concludes that any documents that RBG seeks from Dr. Auerbach 7 beyond confidential communications (e.g., consultation notes, treatment information and 8 communications with third parties about Plaintiff) are likely no longer relevant in this case 9 and should not be produced. To the extent such other documents are relevant in that they go 10 beyond Plaintiff’s mental condition by disclosing Plaintiff’s statements about her work with 11 RBG, the Court concludes that such documents should not be produced in order to protect 12 Plaintiff from “annoyance, embarrassment, [and] oppression.” FED. R. CIV. P. 26(c)(1). 13 14 To hold that a privileged Accordingly, Plaintiff’s motion to quash RBG’s subpoena to Dr. Auerbach is GRANTED. III. CONCLUSION 15 16 For the reasons discussed above, IT IS HEREBY ORDERED: 17 1. The parties shall file a joint motion for determination of discovery dispute 18 concerning any remaining disputes regarding Plaintiff’s Request for Production 19 of Documents Nos. 9-13 and 16-19 shall be filed on or before May 3, 2013. 20 2. RBG’s objections to Plaintiff’s Request for Production of Documents No. 14 21 are OVERRULED and Plaintiff’s request that RBG be compelled to produce 22 documents in response to this Request is GRANTED. 23 8 24 25 26 27 28 A more compelling argument that RBG does not make is that because Plaintiff initially placed her mental condition at issue by asserting claims for emotional distress damages Plaintiff waived the privilege and that her subsequent withdrawal of the emotional distress claims does not revive the privilege. While there is some merit to this argument, the Court believes that in the instant case it would be inappropriate to find that a waiver of the privilege cannot be revived, especially in light of the fact that the confidential communications have not been disclosed but have remained confidential. Further, to hold otherwise could create problems when the initial emotional distress allegation is contained only in a complaint prepared by counsel, and a particular plaintiff may not understand at the outset of the litigation the effect that such a claim might later have on confidential psychiatric communications. 14 12cv2167-BEN (DHB) 1 3. Plaintiff’s subpoena to non-party witness Dennis Sullivan is MODIFIED as set 2 forth above. Sullivan shall produce responsive documents in compliance with 3 the above discussion, to the extent such documents exist, on or before May 3, 4 2013. 5 4. DENIED. 6 7 8 9 10 Plaintiff’s motion to compel further deposition testimony from Sullivan is 5. Plaintiff’s motion to quash RBG’s subpoena to Dr. Keith Auerbach is GRANTED. IT IS SO ORDERED. DATED: April 18, 2013 11 DAVID H. BARTICK United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 12cv2167-BEN (DHB)

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