Marsteller v. Butterfield 8 Stamford LLC et al
ORDER granting in part and denying in part 92 Motion to Compel. See attached order for details. Signed by Judge Sarah A. L. Merriam on 11/27/2017. (Gust, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LAUREN E. MARSTELLER
BUTTERFIELD 8 STAMFORD LLC,
Civil No. 3:14CV01371(AWT)
November 27, 2017
ORDER ON MOTION TO COMPEL [Doc. #92]
Defendants Butterfield 8 Stamford LLC, Public House
Investments LLC, John Gazzola, Douglas Newhook, and Ryan Slavin
(“defendants”)1 have filed a motion seeking to compel plaintiff
to (1) provide authorizations for release of her medical records
and (2) provide access to her social media accounts or, in the
alternative, copies of certain social media communications.
[Doc. #92]. Plaintiff has filed a memorandum in opposition to
defendants’ Motion to Compel [Doc. #97]. For the reasons set
forth below, the Court GRANTS, in part, and DENIES, in part,
defendants’ Motion to Compel.
Plaintiff brings this action asserting claims of sexual
The motion does not indicate that it is being brought on behalf
of defendant Lolas Stamford LLC. See Doc. #92 at 1.
harassment and retaliation under Title VII and Connecticut law;
violation of the Fair Labor Standards Act and Connecticut Wage
and Hour Act; intentional infliction of emotional distress; and
common law privacy claims. See generally Doc. #7. Plaintiff
alleges that defendants Douglas Newhook and Ryan Slavin, both
employees of the other defendants, repeatedly sexually harassed
her, watched her changing her clothes on a company security
camera in a private office, and showed the video of her changing
clothes to other employees of defendants. See id. Plaintiff
alleges that she experienced “severe emotional distress” as a
result of this conduct. Id. at 11, 14, 16.
On October 10, 2017, Judge Alvin W. Thompson referred this
matter to the undersigned to address discovery issues. See Doc.
#78. On October 20, 2017, the Court held a telephonic status
conference. See Doc. #89. Following that conference, the Court
set a deadline of November 14, 2017, for the filing of any
motions to compel. See Doc. #91. Defendants timely filed a
motion to compel, and plaintiff filed an objection. See Docs.
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1). The advisory committee’s notes to the
recent amendment of Rule 26 further explain that
[a] party claiming that a request is important to resolve
the issues should be able to explain the ways in which
the underlying information bears on the issues as that
party understands them. The court’s responsibility,
using all the information provided by the parties, is to
consider these and all the other factors in reaching a
case-specific determination of the appropriate scope of
Fed. R. Civ. P. 26 advisory committee’s note to 2015 amendment.
Nevertheless, “[t]he party resisting discovery bears the burden
of showing why discovery should be denied.” Cole v. Towers
Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009).
Motion to Compel Disclosure of Medical Records
Defendants seek to compel plaintiff to provide a response
to the following request for production: “Request No. 4: Copies
of any and all hospital and/or treatment records and bills
regarding the Plaintiff’s medical treatment ... relating to the
injuries described in the Complaint.” Doc. #92-3 at 3 (cited in
Doc. #92-1 at 2). Defendants request that plaintiff execute an
Authorization for Release of Health Information that would allow
them to access her medical files directly, as a response to this
request. See Doc. #92-1 Plaintiff objects that her medical files
are privileged, and disclosure therefore would be inappropriate.
See Doc. #97 at 3-5.
As plaintiff notes, Connecticut recognizes “a broad
privilege in the confidentiality of their psychiatric
communications and records.” Falco v. Inst. of Living, 757 A.2d
571, 575 (Conn. 2000). However, in this case, in which subject
matter jurisdiction is premised on a federal question, see Doc.
#17 at 2, and the state law claims in issue (such as intentional
infliction of emotional distress) are addressed under the
Court’s supplemental jurisdiction, “the asserted privileges are
governed by the principles of federal law.” von Bulow by
Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987).
Federal common law recognizes “a privilege protecting
confidential communications between a psychotherapist and her
patient.” Jaffee v. Redmond, 518 U.S. 1, 9 (1996). “Like other
testimonial privileges, the patient may of course waive the
protection.” Id. at 15 n.14. Waiver of a privilege need not be
It is well established doctrine that in certain
circumstances a party’s assertion of factual claims can,
out of considerations of fairness to the party’s
adversary, result in the involuntary forfeiture of
privileges for matters pertinent to the claims asserted.
The loss of the privilege in these circumstances is
sometimes described as implied waiver, [and] sometimes
as “at issue” waiver because it results from the party
having placed a contention at issue.
John Doe Co. v. United States, 350 F.3d 299, 302 (2d Cir. 2003),
as amended (Nov. 25, 2003) (internal citations omitted).
“Despite the strict protection it affords, the
psychotherapist-patient privilege may be waived. Waiver occurs
when a plaintiff puts his or her mental condition at issue in
the case.” Jacobs v. Conn. Cmty. Tech. Colleges, 258 F.R.D. 192,
195 (D. Conn. 2009) (internal citation omitted). Indeed, a
plaintiff waives this privilege when bringing a claim for
intentional infliction of emotional distress. See, e.g., Bagley
v. Yale Univ., No. 3:13CV01890(CSH), 2016 WL 1531341, at *2 (D.
Conn. Apr. 15, 2016) ( holding that a plaintiff’s “specific and
particularized claim for emotional distress, allegedly caused by
her employment ‘situation’ ... results in a forfeiture of her
psychotherapist-patient privilege”); Green v. St. Vincent’s Med.
Ctr., 252 F.R.D. 125, 129 (D. Conn. 2008)(“[T]he plaintiff has
placed her mental or emotional state in issue by asserting
claims for both negligent and intentional infliction of
emotional distress, and by seeking damages for severe emotional
distress.”); cf. MacCluskey v. Univ. of Conn. Health Ctr., No.
3:13CV01408(MPS), 2014 WL 7404565, at *2 (D. Conn. Oct. 20,
2014) (Plaintiff did not waive privilege where she had “not
brought a tort action for infliction of emotional distress.”).
In her amended complaint, plaintiff asserts a claim for
intentional infliction of emotional distress, alleging: “The
emotional distress sustained by Plaintiff was severe.” Doc. #7
at 16. This is a required element of the claim. A plaintiff
asserting a claim for intentional infliction of emotional
distress under Connecticut law must prove that “the emotional
distress sustained by the plaintiff was severe. In Connecticut,
the distress must be so severe that no reasonable person could
be expected to endure it.” Craig v. Yale Univ. Sch. of Med., 838
F. Supp. 2d 4, 12 (D. Conn. 2011) (internal citations and
quotation marks omitted). “By claiming intentional infliction of
emotional distress in [her] Amended Complaint, Plaintiff has
waived the psychotherapist-patient privilege [she] would
otherwise enjoy.” Sanabria v. Martins, 568 F. Supp. 2d 220, 229
(D. Conn. 2008).
Plaintiff seeks to avoid this waiver by asserting that she
is only seeking damages for “garden variety” emotional distress.
However, “it is the complaint that defines the claims.” See
Green, 252 F.R.D. at 129. Whatever damages plaintiff seeks, her
claims require a showing of severe emotional distress, and
defendants are entitled to discovery of her treatment records to
provide a reasonable opportunity to defend against these claims.
Accordingly, the Court GRANTS defendants’ Motion to Compel
production of medical records. However, the Court leaves the
method of response up to plaintiff. Plaintiff may provide
defendants with an executed authorization form, or provide
defendants with “[c]opies of any and all hospital and/or
treatment records and bills regarding the Plaintiff’s medical
treatment ... relating to the injuries described in the
Complaint.” Doc. #92-1 at 2. If plaintiff elects to provide an
authorization form, she shall provide the executed form to
defendants on or before December 1, 2017. If plaintiff elects to
provide copies of her records, plaintiff shall produce such
materials on or before December 18, 2017.
Motion to Compel Disclosure of Social Media Communications
Defendants next seek to compel plaintiff to provide them
with direct access to her social media accounts, or in the
alternative, to compel plaintiff to provide copies of her social
media communications. See Doc. #92-1 at 3. Defendants’ requests
for production sought, as relevant here:
Request No. 13: Copies of any and all statements, signed
or unsigned, written or recorded, of any and all
witnesses to the Incident(s) described in the Complaint.
Request No. 25: Copies of all communications, including,
but not limited to, emails, text messages, regarding or
relating to the Incident as alleged in the Complaint.
Doc. #92-3 at 5, 7, (cited in Doc. #92-1 at 3). Defendants argue
that plaintiff’s social media communications encompassing
materials responsive to these requests are relevant to her
allegations of emotional distress. Plaintiff objects, asserting
that she has testified that she never “posted anything relevant
to her employment or the allegations in her Complaint.” Doc. #97
“Plaintiff’s routine status updates and/or communications
on social networking websites are not, as a general matter,
relevant to her claim for emotional distress damages, nor are
such communications likely to lead to the discovery of
admissible evidence regarding the same.” Giacchetto v.
Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 116
(E.D.N.Y. 2013). But the mere fact that social media was the
method of communication used, rather than a handwritten letter
or email, does not insulate relevant materials from disclosure
in discovery. See id. (requiring the plaintiff to produce “any
specific references [on social media] to the emotional distress
she claims she suffered or treatment she received in connection
with the incidents underlying her Amended Complaint”); see also
Caputi v. Topper Realty Corp., No. 14CV02634(JFB)(SIL), 2015 WL
893663, at *6 (E.D.N.Y. Feb. 25, 2015) (same).
Requiring plaintiff to provide her social media passwords
to defendants would constitute a wholesale invasion of her
privacy, and would be far outside the bounds of proportionality.
One can hardly imagine a better example of a fishing expedition.
Defendants offer no support for this demand, and the Court can
find none. Accordingly, it is denied.
Defendants’ alternative request for copies of social media
materials responsive to the cited requests for production,
however, is reasonable and likely to lead to admissible
evidence. The Court notes that defendants’ motion attempts to
modify the requests for production actually served. In their
motion, defendants seek “social media communications and
photographs that reveal, refer or relate to any emotion or
feeling or mental state of the Plaintiff.” Doc. #92 at 1. As
noted above, the requests actually cited in the motion seek
“statements ... of any and all witnesses to the Incident(s)
described in the Complaint” and “communications, including, but
not limited to, emails, text messages, regarding or relating to
the Incident as alleged in the Complaint.” Doc. #92-3 at 5, 7
(emphases added). Defendants may not now expand or amend these
requests to seek information about plaintiff’s mental or
emotional state generally.
Accordingly, the Court GRANTS, in part, and DENIES, in
part, defendants’ motion to compel production of social media
communications. Plaintiff shall provide defendants with copies
of any social media materials responsive to the two requests
cited above, on or before December 18, 2017. Plaintiff’s
attorney shall supervise the search for relevant materials to
ensure that all relevant social media materials are produced,
and shall provide a certification describing the nature and
scope of the search conducted.
For the reasons set forth herein, the Court GRANTS, in
part, and denies, in part, defendants’ Motion to Compel
Production. [Doc. #92].
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 27th day of
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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