Shakerdge v. Tradition Financial Services, Inc. et al
Filing
52
Ruling on Discovery Disputes Concerning Privileged Material. Signed by Judge Victor A. Bolden on 10/19/2017.(Giammatteo, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JO LAYLA SHAKERDGE,
Plaintiff,
v.
No. 3:16-cv-01940 (VAB)
TRADITION FINANCIAL SERVICES, INC.,
TFS ENERGY LLC,
Defendants.
RULING ON DISCOVERY DISPUTES CONCERNING PRIVILEGED MATERIAL
Jo Layla Shakerdge (“Plaintiff”) filed this lawsuit alleging that her former employer,
Tradition Financial Services, Inc. and TFS Energy, LLC (together, “TFS” or “Defendants”),
discriminated against her on the basis of her gender and retaliated against her for filing a civil
rights complaint. On August 18, 2017, the parties jointly requested a discovery conference to
address several outstanding issues and objections regarding discovery. Joint Mot. for Discovery
Conference, ECF 40 (“Joint Mot.”). The Court held oral argument on September 19, 2017,
Minute Entry, ECF No. 45, but did not resolve whether Ms. Shakerdge must comply with
Defendants’ request for information about any mental health care.
For the reasons stated below, Defendants’ request is GRANTED with respect to the names
of providers and dates of visits and DENIED as to other information sought.
I.
Factual and Procedural Background
Defendants previously employed Shakerdge as an energy commodities broker. See
Ruling on Defendants’ Motion to Dismiss, ECF No. 46 at 1. She alleges that “crassness and bias
. . . pervaded” the trading floor, and filed this lawsuit alleging that TFS discriminated against her
on the basis of her gender and in violation of both Title VII and the Connecticut Fair
Employment Practices Act (CFEPA). Amend. Compl. at ¶ 114-120. She also alleges that TFS
retaliated against her for engaging in protected activity under Title VII and CFEPA. Id. at ¶ 121127. On September 26, 2017, the Court denied Defendants’ motion for partial summary
judgment. See Ruling on Defendants’ Motion to Dismiss, ECF No. 46.
As part of the discovery process, Defendants submitted two interrogatories and two
requests for production that are at issue here. The parties now request that the Court resolve a
discovery dispute regarding provision of certain mental health records. See Joint Mot. at 1-2.
In Defendants’ Interrogatory 4, TFS sought information about the name, address, and
telephone number of “each and every doctor, psychiatrist, psychologist, social worker, counselor
or other mental health care provider with whom you have treated in the past ten (10) years for
any mental or emotional condition, or physical symptom related to a mental or emotional
condition.” Pl. Response to Defs. First Set of Interrogatories, Defs. Supplemental Br., Ex. A,
ECF No. 43-1 at 3 (“Defs. Discovery Requests”). The interrogatory also requests that Plaintiff
identify the purpose of each interaction, the physical location of the medical records and whether
“any written report or memorandum was prepared relative to the consultation, examination
and/or treatment.” Id.
In Defendants’ Interrogatory 5, TFS sought information about the name, address, and
telephone number of “each and every expert, doctor, psychiatrist, psychologist, social worker or
health care professional with whom you treated” for care “in connection with any emotional or
physical distress. . . .” Id. at 4. Like Interrogatory 4, the interrogatory seeks information about the
purpose of the visit or treatment, the physical location of the medical records, and whether any
written report was produced as a result. Id.
Defendants also submitted two related requests for production. See Defs. Discovery
Requests at 10 (detailing Defendants’ Requests 37 and 38). First, Defendants sought production
of “any and all documents substantiating, relating or referring to any treatment you have received
from, or consultations you have had with any physicians, surgeons, therapists, nurses,
psychiatrists, psychologists, counselors or anyone else, relating to any mental or emotional care
you have received.” Id. Additionally, Defendants requested that Plaintiff sign a “release for each
of the doctor, psychiatrist, psychologist, social worker, counselor or other mental health care
provider with whom you have treated or consulted as identified in Interrogatory Nos. 4 and 5 . . .
.” Id.
Ms. Shakerdge objected to each of these requests, arguing that the information
Defendants sought was protected by the federal psychotherapist-client privilege. The joint
motion followed.
II.
Discussion
Defendants, in essence, seek two distinct types of information related to Plaintiff’s mental
health care: the names of health care providers and dates of visits, and information based on
confidential communication between those providers and Ms. Shakerdge in the form of reports,
the purposes of visits, and other records. Ms. Shakerdge raises two objections. First, she argues
that the information is privileged and therefore exempt from disclosure. Second, she argues that,
to the extent that detailing names of providers and the dates of visits is not shielded from
disclosure, both are not relevant to her claim for garden variety damages.
The Court agrees with Ms. Shakerdge, in part. The law on privilege shields from
disclosure confidential communications between mental health care providers and their clients,
and Ms. Shakerdge has not waived that privilege. The names of those providers, however, and
dates of visits do not fall within the privilege and therefore must be disclosed.
A.
Communications With Providers Within The Psychotherapist Privilege
Federal common law — which controls this case — recognizes that confidential
communications between a party and a mental health professionals are privileged. See Jaffee v.
Redmond, 518 U.S. 1 (1996) (recognizing the psychotherapist privilege and applying it to
communications between defendant and a licensed social worker); In re Sims, 534 F.3d 117, 131
(2d Cir. 2008) (noting the broad reach of Jaffee and rejecting respondents’ argument that
protected communication should be disclosed if it addressed the plaintiff’s state of mind and
causation).
In Jaffee, the Supreme Court noted that, unlike other forms of health care, “effective
psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is
willing to make a frank and complete disclosure of fact, emotions, memories, and fears.” Id. at
10. The Court protected those communications, rejecting any balancing test regarding invocation
of the privilege: “Making the promise of confidentiality contingent upon a trial judge’s later
evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need
for disclosure would eviscerate the effectiveness of the privilege.” Id. at 17. Like other
testimonial privileges, the Court noted that the psychotherapist-patient privilege could be
waived. Id. at 15 n. 14. But, in the absence of such a waiver, confidential communications were
to be protected.
TFS does not address Jaffee’s broad protections for this type of information, instead
characterizing their request as one for “medical treatment, dates of such treatment, and providers
. . . .” Defs. Supplemental Br., ECF No. 43 at 2; they characterize Plaintiff as seeking to assert a
physician-patient privilege not recognized by federal law. Id. at 4. They seek, however, records
related to “any mental or emotional condition, or physical symptom related to a mental or
emotional condition,” Defs. Discovery Requests at 3, and the purpose of visits to doctors,
psychiatrists, psychologists, social workers specifically “in connection with any emotional or
physical distress.” Id. at 4. They also request that the plaintiff complete a records release form
for each of the doctor, psychiatrist, psychologist, social worker, counselor or other mental health
care provider.” Defs. Discovery Requests at 10.
TFS’s request is limited to mental health care, and communications between Ms.
Shakerdge and providers of this mental and emotional care would be within the scope of the
psychotherapist-patient privilege.1 Therefore, the communications are protected from disclosure,
unless Ms. Shakerdge has waived that privilege. She has not.
1.
At-Issue Waiver
Like other categories of privilege, a plaintiff can waive the psychotherapist-patient
privilege either explicitly or implicitly. Defendants argue that “to the extent a psychotherapist-
1
At oral argument and in briefings, Defendants seemed to suggest that it only applied to a
narrow category of providers. This argument misreads the privilege: it is the content of the
communication that matters, and less about formal categorization of the treater doing the
communication. Doctors, licensed social workers, psychiatrists, psychologists — the categories
of treaters included in TFS’s request — come within the boundaries of privilege if they are
communicating about mental health care or mental health conditions. See Jaffee, 518 U.S. at 17
n. 16 (noting with approval that the “Judicial Conference Advisory Committee's proposed
psychotherapist privilege defined psychotherapists as psychologists and medical doctors who
provide mental health services.”); Finley v. Johnson Oil Co., 199 F.R.D. 301, 303 (S.D. Ind.
2001) (“Given Jaffee's express holding that the federal common law mental health records
privilege encompasses communications made to “more readily accessible social workers,” this
court will conclude that communications to general practitioners at health clinics fall within the
scope of the federal common law privilege.”). But see E.E.O.C. v. Nichols Gas & Oil, Inc., 256
F.R.D. 114 (W.D. N.Y. 2009) (declining to extend privilege to communications with medical
providers who referred patient to mental health practioner or prescribed medication to treat
depression or anxiety.)
patient privilege could apply to any of Plaintiff’s medical records, it has been waived.” Defs.
Supplemental Br. at 5 (citing Bagley v. Yale University, No. 3:13-CV-1890 (CSH), 2016 WL
1531341, at *2 (D. Conn. Apr. 15, 2016)). Defendants appear to argue, by citing Bagley, that Ms.
Shakerdge has implicitly waived the privilege by putting her mental state at issue.
Plaintiff argues that there has been no waiver: she seeks “only ‘garden-variety’
emotional distress damages; will not rely on medical testimony to establish her emotional
distress damages; and does not claim damages for physical injuries.” Pl. Supplemental Br., ECF
No. 42 at 4. Therefore, Ms. Shakerdge argues that, under Second Circuit precedent, Defendants
are not entitled to discovery of information protected by the psychotherapist-patient privilege. Id.
(citing Sims, 534 F.3d at 117).
Courts in this Circuit agree that a plaintiff must seek more than a claim of a “garden
variety injury” to waive the psychotherapist-patient privilege. See Sims, 534 F.3d at 117 (holding
alleging “garden variety” injuries does not waive privilege); MacCluskey v. Univ. of Connecticut
Health Ctr., No. 3:13-CV-01408 MPS, 2014 WL 7404565, at *2 (D. Conn. Oct. 20, 2014)
(holding that Title VII plaintiff did not waive privilege).
In MacCluskey, which Defendants cite, this Court noted that “[e]motional distress arising
from discrimination—which is what MacCluskey is claiming—is, on its own, generally a garden
variety form of emotional distress.” Id. The plaintiff might have brought a tort action, for
instance, which would have waived the privilege. But without it, “Courts that have used the
garden variety standard to address claims for emotional distress related to discrimination, not
accompanied by a tort action for infliction of emotional distress or claims of a specific mental
disorder, have found that the psychotherapist-patient privilege is not waived by such claims.” Id.
(collecting cases).
The same reasoning applied in Sims and MacCluskey applies here. Ms. Shakerdge has not
brought a tort action for emotional damages.2 She represents that she is only seeking gardenvariety damages of the sort that would be consistent with her allegations of sex discrimination
and retaliation. Thus, she has not waived the privilege in this case.
2.
Defendants’ Alternative Arguments
Despite clear precedent, Defendants argue that they should have access to Plaintiff’s
records because those records “are likely sources of evidence relevant to [several] fundamental
issues, and should be produced.” Defs. Supplemental Br. at 4. Primarily, Defendants argue that
they are entitled to discovery of these records because the information would be useful for
addressing causation, that is, “whether any act of the Defendants caused the Plaintiff’s alleged
emotional distress” or whether there was some “other potential causes” Id. at 3.3 Defendants also
argue that they are entitled to this information because Plaintiff’s hostile workplace claim
requires a subjective element. Defs. Supplemental Br. at 4. Therefore, records “might reasonably
show, for example, that Plaintiff was reporting — or not reporting —to her medical care provider
that she was experiencing (or had experienced) hostility at work due to the allegedly sexual
conduct” and that this hostility was sustained and not an isolated incident. Id.
Defendants support their waiver proposition by citing Bagley v. Yale University, No. 3:13-CV1890 (CSH), 2016 WL 1531341, at *2 (D. Conn. Apr. 15, 2016). The plaintiff in Bagley,
however, had brought a much broader action, had testified about mental health care, and
included claims for “specific and particularized claim[s] for emotional distress” not at issue in
this case. Id.
3
In supporting their claimed entitled to discovery based on causation, Defendants rely on two
district court cases: Bruno v. CSX Transportation, 262 F.R.D. 131, 133 (N.D.N.Y. 2009) and
Cleveland v. International Paper Co., No. 96-CV-1068 (RSP/DNH), 1997 WL 309408, at *2
(N.D.N.Y. June 5, 1997). Cleveland predates the Second Circuit’s decision in Sims, which
clarified that merely seeking garden variety damages does not waive the privilege. In Bruno, the
court found, unlike here, that Plaintiff had sought non-garden variety damages and therefore
waived privilege.
2
Following Defendants’ arguments to its logical conclusion would have startlingly broad
implications. A plaintiff, seeking to vindicate his or her right to work in an environment free of
harassment, would license a fishing expedition through the most intimate details of his or her
life, regardless of whether the plaintiff put those details at issue. This would have precisely the
chilling effect on client-provider communications the Supreme Court sought to guard against
when it adopted the psychotherapist privilege in Jaffee. 518 U.S. at 18 (“We reject the balancing
component of the privilege implemented by [the Court of Appeals.] Making the promise of
confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the
patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the
effectiveness of the privilege.”) And Defendants’ arguments are nearly identical to those rejected
by the Second Circuit in Sims. In Re Sims, 534 F.3d at 141 (“In reality respondents simply seek
to have the privilege breached whenever there is a possibility that the psychiatric records may be
useful in testing the plaintiff's credibility or may have some other probative value. To accept
these contentions would inject the balancing component that Jaffee foreclosed.”)
Thus, to the extent that Defendants seek communications between Ms. Shakerdge and
any mental health care provider — the purpose of an appointment, records of those
appointments, reports, or similar documents — the Court holds that these are barred from
disclosure under the psychotherapist-patient privilege.
B.
Names and Dates of Treatment
The names of providers and the dates of treatment of treatment present a different
question. Defendants argue that this information is not protected by the psychotherapist-patient
privilege, even if other information about those visits is shielded. Defs. Supplemental Br. at 4-5
Ms. Shakerdge raises a distinct concern regarding these records: that they are not relevant.
Without the content of the visits themselves and “[s]ince Shakerdge is not claiming more than
garden-variety emotional distress, whether she saw a therapist for other reasons or at other times
has no relevance to this matter.” Pl. Supplemental Br. at 4. At oral argument, Plaintiff’s counsel
further refined this argument, noting that without the underlying records from each visit, the
names of providers and the dates of visits would “encourage a jury or a fact-finder to speculate
about the reasons that she was going.” Transcript, ECF No. 48 at 27.
As a general matter, the names of providers and the dates of visits are not
“communications” within the meaning of the psychotherapist-patient privilege. See MacCluskey
v. University of Connecticut Health Ctr., No. 3:13-cv-01408 (MPS), 2014 WL 7404565, at *2
(D. Conn. Oct. 20, 2014) (“While communications with psychotherapists are privileged, the
dates of any psychotherapy and the names of providers are not protected by the privilege; the
Health Center may request this information to the extent that it is reasonably calculated to lead to
admissible evidence.”); accord Perry v. City of New Haven, No. 3:11-cv-1485 (RNC), 2012 WL
3887061, at *2 (D. Conn. Sept. 6, 2012) (“The names, dates of treatment and diagnoses of
medical providers who treated the plaintiff for emotional distress are relevant within the meaning
of Rule 26(b)(1) to his damages claim of emotional distress.”); Torcasio v. New Canaan Bd. of
Ed., No. 3:15-cv-00053(AWT), 2016 WL 299009, at *3 (D. Conn. Jan. 25, 2016) (same).
Therefore, Plaintiff must produce the requested records regarding names of providers and
dates of visits, if any. The Court puts both parties on notice, however, that it will carefully
review any use of this information at trial under Fed. R. Evid. 403, in order to determine whether
its limited probative value is outweighed by any of the Rule 403 grounds, including misleading
the jury.
Additionally, the Court notes that both parties are precluded from using the asserted
privilege as both a sword and a shield. Plaintiffs “will be bound by her representations to the
Court that she will not offer evidence regarding any mental or emotional disorders, severe
emotional distress, or anything beyond the so-called ‘garden variety’ emotional distress that
might result from discrimination.” MacCluskey, 2014 WL 7404565, at *2. And Defendants will
not be allowed to use Plaintiff’s invocation of privilege to lead the trier of fact to speculate
regarding the content of privileged communications between Ms. Shakerdge and any mental
health care provider.
III.
Conclusion
Based on the considerations above, Plaintiffs are ordered to produce information
regarding the names of providers and dates of visits to those providers responsive to Defendants’
interrogatories. Defendants’ request for disclosure of any other information related to the
provision of mental health care is DENIED.
SO ORDERED at Bridgeport, Connecticut this 19th day of October, 2017.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT
JUDGE
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