Doe v. Purdue University et al

Filing 143

OPINION AND ORDER The Court DENIES the 115 Motion to Quash Subpoena to Testify at a Deposition to Mr. Noel Perry. The Court ORDERS Noel Perry to appear for a deposition at a time and date agreed upon by Mr. Perry, Plaintiff, and Defendants. Finally, the Court DENIES Defendants' request for attorneys' fees and costs incurred in response to the motion to quash. Signed by Magistrate Judge Joshua P Kolar on 1/11/21. (kjp)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOHN DOE,

)
)
)
)
)
)
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Plaintiff,
v.
PURDUE UNIVERSITY, et al.,
Defendants.

CAUSE NO.: 2:17-CV-33-JPK

OPINION AND ORDER
This matter is before the Court on a Motion to Quash Subpoena to Testify at a Deposition
to Mr. Noel Perry [DE 115], filed by non-parties Family Concern Counseling and Noel Perry.
Defendants Purdue University, Purdue University Board of Trustees, Mitchell Elias Daniels, Jr.,
Alysa Christmas Rollock, and Katherine Sermersheim filed a response, and Plaintiff John Doe and
the non-parties filed separate replies. For the following reasons, the motion is denied.
BACKGROUND
Family Concern Counseling and Noel Perry (“the non-parties”) explain that Mr. Perry is a
mental health counselor employed by Family Concern Counseling. (Mot. 2, ECF No. 115).
Mr. Perry is pursuing his state licensure in Indiana and has completed 2,500 of the requisite 3,000
hours. Id. Mr. Perry counseled Plaintiff John Doe from 2018 through 2020. Id.
On September 17, 2020, Mr. Perry was served with a subpoena seeking the production of
documents and a deposition. Id. at 1, 6. Mr. Perry served defense counsel with a written objection
to the command to produce documents and subsequently filed the instant motion to quash the
command to testify at a deposition. Id. at 1.

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STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 45, a party may serve a subpoena commanding
a non-party to testify at a deposition and produce designated documents. Fed. R. Civ.
P. 45(a)(1)(A)(iii). Rule 45 requires a court to quash or modify a subpoena based on timely motion
if the subpoena requires disclosure of privileged or other protected matter, if no exception or
waiver applies. Fed. R. Civ. P. 45(d)(3)(A)(iii).
The non-parties assert that Mr. Perry’s communications with Plaintiff and any
accompanying records are not relevant to this matter and, therefore, they are not discoverable under
Federal Rule of Evidence 401. (Mot. 7, ECF No. 115). But Rule 401 applies to the admission of
evidence, not discovery disputes. The broad scope of discovery, which applies to discovery
requests sent to non-parties as well as parties, permits a party to seek information that is not
privileged, relevant to the party’s claim or defense, and proportional to the needs of the case. Fed.
R. Civ. P. 26(b)(1). “The limits and breadth of discovery expressed in Rule 26 are applicable to
non-party discovery under Rule 45.” Noble Roman’s, Inc. v. Hattenhauer Distrib. Co.,
314 F.R.D. 304, 307 (S.D. Ind. 2016).
ANALYSIS
The arguments advanced by the non-parties, Defendants, and Plaintiff span numerous
issues: 1) timeliness of service of the subpoena; 2) compliance with Northern District of Indiana
Local Rule 37-1; 3) proper service of the subpoena; 4) application of the psychotherapist-patient
privilege to Mr. Perry’s communications with Plaintiff; 5) waiver of the psychotherapist-patient

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privilege; 6) timeliness of the assertion of the psychotherapist-patient privilege; and
7) Defendants’ request for attorneys’ fees and costs. The Court addresses each argument in turn. 1
Before doing so, however, it bears stressing that the proper application of any relevant
privilege, and the related question of whether Plaintiff has waived such a privilege, are the type of
issues that routinely and appropriately require a judicial determination. The remaining chaff the
Court must cut through is perhaps more suitably relegated to a meeting and conference between
the parties. And, though the Court will decide these issues so that the litigation can proceed, the
parties should remain cognizant of their obligation “to secure the just, speedy and inexpensive
determination” of this action. Fed. R. Civ. P. 1.
1. Service of Subpoena: Timeliness
The non-parties contend that the Court could grant the instant motion on the ground that
the subpoena at issue was untimely. (Mot. 6-7, ECF No. 115). Pursuant to Northern District of
Indiana Local Rule 30-1, “[a]ttorneys must schedule depositions with at least 14-days’ notice,
unless opposing counsel agrees to shorter notice or the court orders otherwise.” N.D. Ind.
L.R. 30-1(b). The non-parties state—and it appears uncontested—that Mr. Perry was served with
the subpoena on September 17, 2020, and that the subpoena demanded Mr. Perry’s appearance for
a deposition on September 24, 2020. (Mot. 1, 6, ECF No. 115). As such, if the Court were to
consider only the dates of service of the subpoena and the noticed deposition, it could find a
violation of Local Rule 30-1.
However, the course of the parties’ dealings suggest that this was not an instance of
Defendants waiting until the last minute to schedule a deposition and then unilaterally imposing a

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The non-parties state that the motion to quash pertains solely to the sought deposition of Mr. Perry and not to the
additionally sought documents. (Non-parties’ Reply 2-3, ECF No. 130). Therefore, the Court rules only on the portion
of the subpoena noticing Mr. Perry’s deposition.

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deposition date that was without fourteen days’ notice. Though the parties dispute certain factual
allegations concerning when and how many times Mr. Perry was contacted regarding the
deposition, they agree that, at a minimum, he was contacted in early September 2020. (Resp.
Ex. F ¶ 3, ECF No. 125-7; Non-parties’ Reply Ex. A ¶ 14, ECF No. 130-2). This did not result in
either the scheduling of a deposition or service of a subpoena. When a process server employed
by Defendants attempted to serve the subpoena, police were called to the scene. The police log of
the event supports Defendants’ contention that Mr. Perry refused to accept the subpoena from
either the process server or the responding officer. (Resp. Ex. G, ECF No. 125-8; Resp. Ex. I,
ECF No. 125-10).
The Court rejects the non-parties’ request that their motion be granted based on
Defendants’ failure to strictly comply with Local Rule 30-1. Affidavits from Mr. Perry, the process
server, and Defendants’ paralegal together make clear that Defendants attempted to contact
Mr. Perry at an earlier date and that Mr. Perry ultimately refused service of the subpoena.
As explained by one court:
Failure to comply with the local rules is not merely a “harmless technicality,” but
can be a “fatal” mistake. However, “[w]here a previous error is the result of
negligence or other nonculpable conduct, and when a motion involves important
issues which may affect the outcome of [a] case, like [a] motion to compel, the
dispute is better decided on the merits than on procedural grounds.”
Long v. Anderson Univ., 204 F.R.D. 129, 133-34 (S.D. Ind. 2001) (quoting Servin v. GATX
Logistics, Inc., 187 F.R.D. 561, 562 (N.D. Ill. 1999); Fisher v. Nat’l R.R. Passenger Corp.,
152 F.R.D. 145, 149 (S.D. Ind. 1993)). Perhaps Defendants indeed failed to comport with the
technical requirements of Local Rule 30-1(b). Even so, and though some of the underlying factual
allegations are in dispute, Defendants strove to contact Mr. Perry at an earlier date and any failure
to strictly comply with Local Rule 30-1(b) was not the result of culpable conduct. And, there is

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evidence in the record to suggest that Mr. Perry intentionally complicated Defendants’ efforts in
serving the subpoena. As such, the Court finds that Defendants’ failure to comply with Local
Rule 30-1(b) does not warrant granting the motion to quash, as the dispute is better decided on the
merits.
2. Local Rule 37-1
Defendants assert that the non-parties failed to comply with the meet and confer
requirement of Northern District of Indiana Local Rule 37-1, and argue that the instant motion
may be denied on that ground alone. (Resp. 5, ECF No. 125).
Local Rule 37-1 states that “[a] party filing any discovery motion must file a separate
certification that the party has conferred in good faith or attempted to confer with other affected
parties in an effort to resolve the matter raised in the motion without court action.” N.D. Ind.
L.R. 37-1(a). Further, “[t]he court may deny any motion described in subdivision (a)—except
those motions brought by or against a person appearing pro se—if the required certification is not
filed.” N.D. Ind. L.R. 37-1(b).
The non-parties assert that they called Defendants on September 21, 2020 to discuss the
subpoena. (Non-parties’ Reply 3, ECF No. 130). The non-parties represent that, after a brief
conversation between counsel, it was clear that no agreement could be reached without
involvement of the Court. Id. The non-parties further note that they filed a Local Rule 37-1
certification on October 7, 2020. Id. The certification discusses the September 21, 2020
conversation and explains that the non-parties advised that they objected to the subpoena on
numerous grounds. (Local Rule 37-1 Certification ¶¶ 1-2, ECF No. 126). The certification further
states that defense counsel indicated that he would not withdraw the subpoena, and the non-parties
thus advised that they would file a motion to quash. Id. at ¶¶ 3-4. Accordingly, the non-parties

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assert that the requirement for a good faith attempt to confer to resolve discovery disputes has been
met. (Non-parties’ Reply 3-4, ECF No. 130).
Defendants are correct that the non-parties failed to file the requisite certification with their
motion to quash in compliance with Local Rule 37-1(a). Nonetheless, as explained in the preceding
section, the Court finds that the non-parties’ failure to strictly comply with Local Rule 37-1(a) at
the time of filing the motion to quash was the result of negligence or nonculpable conduct and, as
such, does not warrant granting the instant motion, as the dispute is better decided on the merits.
See Long, 204 F.R.D. at 133-34.
3. Service of Subpoena: Properness
The non-parties assert that the subpoena may be quashed because it was not properly
served. (Mot. 7-8, ECF No. 115). For the reasons explained below, based in part on the allegations
contained in an affidavit provided by the process server and a police log recorded by an officer
present at the scene—both of which state that Mr. Perry attempted to refuse service—the Court
finds that the subpoena was properly served.
Pursuant to Rule 45, “[a]ny person who is at least 18 years old and not a party may serve a
subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena
requires that person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed
by law.” 2 Fed. R. Civ. P. 45(b)(1). “When delivery options other than USPS certified mail or
personal service are used, however, courts within the Seventh Circuit must themselves determine
if the method was a ‘sensible option’ that satisfies the requirement of ‘delivering a copy to the
named person.’” Stepp v. Rexnord Indus., Inc., No. 1:13-CV-00683-TWP, 2014 WL 3866135,
at *2 (S.D. Ind. Aug. 5, 2014) (quoting Fed. R. Civ. P. 45(b)(1)).

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Defendants state that Mr. Perry was served with a check for his fees and mileage at the time of service of the
subpoena, which the non-parties do not dispute. (Resp. 4 n. 1, ECF No. 125).

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The non-parties argue that the method of service used in this matter does not comply with
the requirement that methods other than personal service of a subpoena must be a “sensible
option.” (Mot. 7-8, ECF No. 115). As noted above, Defendants hired a process server, Jay Saine,
to complete service of the subpoena on Mr. Perry. (Resp. 4, ECF No. 125). Mr. Saine represents
that he is an adult resident of Indiana employed as a process server. (Resp. Ex. G ¶¶ 1-2, ECF
No. 125-8).
The record before the Court reveals conflicting accounts of the events that transpired when
Mr. Saine attempted to serve Mr. Perry. In his affidavit, Mr. Saine states that he arrived at the
offices of Family Concern Counseling on September 17, 2020. Id. at ¶ 5. After being rebuffed by
a staff member, Mr. Saine located Mr. Perry’s office on his own. Id. at ¶¶ 6-11. When Mr. Saine
announced himself to Mr. Perry through the open door of Mr. Perry’s office, Mr. Perry closed the
door, locked it, and called the police. Id. at ¶¶ 12-15. When the responding police officer arrived,
Mr. Saine explained who he was and what he was attempting to accomplish. Id. at ¶ 17. The officer
knocked on Mr. Perry’s door and stated that Mr. Saine was there to serve Mr. Perry with a
subpoena. Id. at ¶¶ 18-19. Mr. Saine attempted to hand Mr. Perry the subpoena and, when
Mr. Perry refused to take the papers, the officer took the subpoena from Mr. Saine and placed it
inside Mr. Perry’s office as Mr. Perry was attempting to close the door. Id. at ¶¶ 20-22. This
description of the events is supported by the police officer’s recording of the incident, with the
exception that the officer notes that the subpoena was “placed in the door” of Mr. Perry’s office.
(Resp. Ex. I 2, ECF No. 125-10).
The non-parties dispute several of these allegations. First, they deny that Mr. Saine was
rebuffed by a staff member when he arrived at Family Concern Counseling. (Non-parties’
Reply 10, ECF No. 130; Non-parties’ Reply Ex. C ¶¶ 3-11, ECF No. 130-4). Second, Mr. Perry

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denies that his office door was ajar, represents that he did not see the subpoena until he opened the
door at the end of a counseling session with a client—whose appointment Mr. Perry states was
interrupted by Mr. Saine—and alleges that at no time did Mr. Saine or the police officer state that
Mr. Saine was there to serve a subpoena. (Non-parties’ Reply Ex. A ¶¶ 31-34, 42, 44, ECF
No. 130-2).
“Nothing in [the] language [of Rule 45(b)(1)] suggests that in-hand, personal service is
required to effectuate ‘delivery,’ or that service by certified mail is verboten. The plain language
of the rule requires only that the subpoena be delivered to the person served by a qualified person.” 3
Doe v. Hersemann, 155 F.R.D. 630, 630 (N.D. Ind. 1994); see also Little v. JB Pritzker for
Governor, No. 18 C 6954, 2020 WL 1939358, at *5 (N.D. Ill. Apr. 22, 2020) (“[T]he fundamental
purpose of properly serving a subpoena is to make certain that the recipient receives it.”); King v.
Crown Plastering Corp., 170 F.R.D. 355, 356 (E.D.N.Y. 1997) (“[T]he court sees no reason for
requiring in hand delivery for subpoenas served under Rule 45, so long as service is made in a
manner that reasonably [ensures] actual receipt of the subpoena by the witness.”).
“Courts often look to the service provisions of Rule 5(b) when [a] subpoena is served on a
non-party.” Little, 2020 WL 1939358, at *3. “Rule 5(b) provides six options for serving documents
other than by service to an attorney representing a party,” including “leaving it . . . at the person’s
office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in
the office.” Fed. R. Civ. P. 5(b)(2)(B)(i); Little, 2020 WL 1939358, at *3. Further, “an alternative
means of serving a subpoena can be appropriate once the party seeking evidence demonstrates an
inability to effectuate service after a diligent effort.” Little, 2020 WL 1939358, at *4 (internal

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Although the language of Rule 45(b)(1) was later modified, this change was “not material to the Hersemann
analysis.” Ott v. City of Milwaukee, 274 F.R.D. 238, 241 (E.D. Wis. 2011).

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quotation marks and citation omitted). Predictably, this “includes situations in which the person
on whom service is sought attempts to evade a process server.” Id.
The Court is not wholly unsympathetic to the non-parties’ argument. If Mr. Perry was in a
private counseling session with a client, it is understandable that he would endeavor to avoid
interruption. Nonetheless, Mr. Saine states that he identified himself to Mr. Perry, and both
Mr. Saine and the police officer—who, the Court notes, is seemingly unrelated to and has no
apparent bias in this matter—state that the officer attempted to explain the situation to Mr. Perry
and that the officer placed the subpoena either in Mr. Perry’s office or wedged in the office door,
either of which would place it within his view, after Mr. Perry refused to take possession of it.
And, though Mr. Perry disputes these facts, “the Seventh Circuit has held that affidavits of process
servers are prima facie evidence of service that can be overcome only by strong and convincing
evidence, not by a self-serving affidavit by [an individual] who claims that [he] has not been
properly served with a summons.” Abbott v. Kidder, Peabody & Co., No. 97 C 3251, 1997 WL
337228, at *3 n. 2 (N.D. Ill. June 16, 1997) (citing O’Brien v. R.J. O’Brien & Associates, Inc.,
998 F.2d 1394, 1398 (7th Cir. 1993)). In the face of the affidavit from Mr. Saine and the
accompanying police log, Mr. Perry’s own affidavit does not rise to the level of such strong and
convincing evidence.
Regardless, leaving the subpoena in Mr. Perry’s office or in a crack in his office door
comports with Rule 5(b)’s allowance that a document may be left “in a conspicuous place” in the
office of the individual upon whom service is being attempted. See Fed. R. Civ. P. 5(b)(2)(B)(i);
Little, 2020 WL 1939358, at *3. And, further, both Mr. Saine’s and the police officer’s description
of the events are analogous to the circumstances described in Abbott, in which the court found that
a subpoena was properly served, pursuant to Rule 45(b), where a process server placed the

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subpoena under the windshield wiper arm of a car after the car’s occupant refused to accept the
papers in hand. 1997 WL 337228, at *3. Accordingly, the Court finds that Mr. Perry was properly
served with the subpoena per Rule 45. 4
4. Application of the Psychotherapist-Patient Privilege
“Federal common law determines the scope of privileges available in cases involving a
question of federal law.” Zukley v. Town of Shererville, No. 2:14-CV-347-JVB-JEM, 2016 WL
6994158, at *3 (N.D. Ind. Nov. 30, 2016) (citing Fed. R. Evid. 501). As held by the Supreme Court
of the United States, “confidential communications between a licensed psychotherapist and her
patients in the course of diagnosis or treatment are protected from compelled disclosure under
Rule 501 of the Federal Rules of Evidence.” Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (emphasis
added) (agreeing that “a psychotherapist-patient privilege will serve a ‘public good transcending
the normally predominant principle of utilizing all rational means for ascertaining truth’” (quoting
Trammel v. United States, 445 U.S. 40, 50 (1980)). The Seventh Circuit Court of Appeals has not
issued a definitive ruling on the question of whether the psychotherapist-patient privilege extends
to unlicensed counselors. Moreover, the Court of Appeals has specifically declined to rule on
whether courts should look to the relevant state law in determining this issue. See United States v.
Schwensow, 151 F.3d 650, 657 n. 4 (7th Cir. 1998). Nonetheless, the Court need not determine
whether the psychotherapist-patient privilege applies to communications between Plaintiff and
Mr. Perry as, even if the privilege applies, it has been waived.

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The absence of such a finding would have no effect on the ultimate outcome of the instant dispute. At a telephonic
status conference held on October 29, 2020, counsel for the non-parties represented that they would accept service on
behalf of Mr. Perry for any future subpoena noticing a deposition. Should the Court have declined to make a finding
on the propriety of service of the subpoena at issue here, therefore, Defendants would be entitled to simply serve a
second subpoena on Mr. Perry via this manner.

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In Schwensow, the Court of Appeals noted that its task was to determine whether the district
court erred in concluding that the relevant individuals “failed to qualify as psychotherapists, social
workers, or another kind of counselor entitled to receive privileged communications.” Id. at 657
(emphasis added). In describing why the individuals at issue were not counselors entitled to receive
privileged communications, the Court of Appeals explained that they did not: 1) “possess[]
credentials that might qualify them as licensed to receive privileged communications”; 2) “act or
hold themselves out to be acting in the capacity of counselors, much less licensed counselors”;
3) “identify themselves as therapists or counselors”; or 4) “confer with Schwensow in a fashion
that resembled a psychotherapy session.” Id. Further, the office in which the individuals worked
“did not contain any indicia of being an office that provided counseling services.” Id. And, one of
the relevant individuals testified that he had never received any training in psychotherapy, social
work, or any other kind of counseling, while the other individual testified that she had never had
any kind of mental health training. Id. Finally, Schwensow’s interactions with the two individuals
“did not relate to diagnosis, treatment, or counseling of Schwensow for purposes of attempting to
treat [him] . . . .” Id. at 658. The Court of Appeals concluded that, “[u]nder no circumstances can
these communications be interpreted as ‘confidential communications’ entitled to protection from
disclosure under Rule 501.” Id.
In the instant case, Mr. Perry is a mental health counselor employed by Family Concern
Counseling. (Mot. 2, ECF No. 115). Mr. Perry represents that his patients “have full confidence
that their communications with [him] are privileged unless specifically excepted by statute.”
(Non-parties’ Reply Ex. A ¶ 6, ECF No. 130-2). Further, during his deposition, Plaintiff testified
that he sees Mr. Perry for treatment of Plaintiff’s anxiety and depression and noted his view that

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his communications with Mr. Perry were confidential. (Resp. Ex. D 148:11-14, 149:7-18, ECF
No. 125-5).
On the record before the Court, it appears that Mr. Perry holds himself out, identifies
himself, and acts as a mental health counselor, is actively working toward his licensure in Indiana,
conferred with Plaintiff in a fashion resembling a counseling session, and works in an office that
specifically provides counseling services. If the Court looks solely to these facts and the reasoning
in Schwensow, Plaintiff’s communications with Mr. Perry conceivably fall under the
psychotherapist-patient privilege. See 151 F.3d at 656-58.
Defendants, however, urge the Court to look to Indiana law in determining the issue of
whether there is an applicable psychotherapist-patient privilege in this instance. (Resp. 13-14, ECF
No. 125). Defendants are correct that, should the Court look only to Indiana law, the
psychotherapist-patient privilege may not apply to Plaintiff’s communications with Mr. Perry.
Indiana law provides that “[m]atters communicated to a counselor in the counselor’s official
capacity by a client are privileged information and may not be disclosed by the counselor to any
person” except under certain circumstances. Ind. Code § 25-23.6-6-1. “Counselor” is defined as
“a social worker, a clinical social worker, a marriage and family therapist, a mental health
counselor, an addiction counselor, or a clinical addiction counselor who is licensed” under the
relevant Indiana statute. Ind. Code § 25-23.6-1-3.8. As explained by the Indiana Court of Appeals,
an individual “must be licensed in order to fall within the scope of the counselor/client privilege
found in Indiana Code section 25-23.6-6-1.” Rogers v. State, 60 N.E.3d 256, 266 (Ind. Ct.
App. 2016). Addressing the question of “whether patient communications to a counselor who is
supervised by a psychiatrist fall within the doctor-patient privilege,” the Supreme Court of Indiana
has clarified that “a counselor who is in fact the caregiver and acts largely independently is not an

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adjunct to the psychiatrist and thus is not covered by the privilege.” Matter of C.P.,
563 N.E.2d 1275, 1276, 1277 (Ind. 1990) (explaining that “courts do not extend the scope of the
privilege by implication”).
Mr. Perry states that he is not—or was not, during the time he counseled Plaintiff—a
licensed counselor. (Non-parties’ Reply Ex. A ¶ 4, ECF No. 130-2). Mr. Perry represents that he
counseled Plaintiff from 2018 through 2020, during which time Mr. Perry served as Plaintiff’s sole
counselor at Family Concern Counseling and conducted all sessions with Plaintiff privately. Id. at
¶¶ 10-11. Further, Mr. Perry notes that at no time was another counselor present, nor was Plaintiff
a client of any other counselor at Family Concern Counseling. Id. at ¶ 12. Given these
representations, it appears that the counselor/client privilege provided by Indiana Code
§ 25-23.6-6-1 does not apply to the communications between Plaintiff and Mr. Perry.
Defendants correctly note that, in Schwensow, the Court of Appeals stated that it
“express[ed] no opinion on the extent to which state law should guide [the] analysis . . . .” 151 F.3d
at 657 n. 4. Yet, the Court of Appeals further stated that it was “not convinced that the district
court’s reliance on state law [in determining whether the psychotherapist-patient privilege applied]
was correct.” Id. (noting that, in that instance, the outcome under both federal and state law was
the same). And, the Court of Appeals relegated any discussion of the potentially applicable state
law to a footnote, whereas the relevant portion of the body of the decision refers only to federal
law and an evaluation of whether the communications with the counselors at issue could be
interpreted as “confidential communications” entitled to protection from compelled disclosure
under Federal Rule of Evidence 501. Id. at 656-58.
Nonetheless, as stated above, the Court need not decide whether Indiana law and the
provision of the counselor/client privilege therein is applicable to the instant case. Even if the

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psychotherapist-patient privilege applies to the communications between Plaintiff and Mr. Perry,
it has been waived.
5. Waiver of Privilege: Psychological State in Issue
Defendants assert that Plaintiff has waived the psychotherapist-patient privilege by placing
his mental health at issue in this matter. (Resp. 6-8, ECF No. 125).
As noted above, the Supreme Court of the United States has held that “confidential
communications between a licensed psychotherapist and her patients in the course of diagnosis or
treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of
Evidence.” Jaffee, 518 U.S. at 15. This privilege can serve vital interests. Nevertheless, like other
privileges, it is subject to waiver. Id. at 15 n. 14. As explained by one court, “[a]fter Jaffee, the
courts have been unanimous in holding that a party may surrender the psychotherapist-patient
privilege by affirmatively placing his or her psychological state at issue in the suit.” Flowers v.
Owens, 274 F.R.D. 218, 223 (N.D. Ill. 2011).
There is disagreement among the courts regarding when such a waiver has occurred and,
further, disagreement in this jurisdiction regarding whether the Seventh Circuit Court of Appeals
has issued a definitive ruling on this question. One district court noted that three approaches have
emerged regarding whether a waiver has occurred, explaining:
Under the broad application, the plaintiffs waive the privilege by merely seeking
damages for emotional distress. Under the narrow application, the plaintiffs must
place an affirmative reliance on the psychotherapist-patient communication to
waive the privilege. The middle ground finds that no waiver occurs if the plaintiffs
are only seeking garden variety damages.
Laudicina v. City of Crystal Lake, 328 F.R.D. 510, 513 (N.D. Ill. 2018) (internal quotation marks
and citations omitted).

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In Doe v. Oberweis Dairy, the Court of Appeals held that, “[i]f a plaintiff by seeking
damages for emotional distress places his or her psychological state in issue, the defendant is
entitled to discover any records of that state.” 456 F.3d 704, 718 (7th Cir. 2006). Some district
courts have interpreted this holding to mean that the Court of Appeals endorsed the “broad”
application, as described above, while others believe the Court of Appeals instead endorsed the
“middle ground” application. Compare Flowers, 274 F.R.D. at 223-24 (finding that it is unclear
from Oberweis that the Court of Appeals’ position is that the psychotherapist-patient privilege is
waived when any emotional distress damages are sought) with Laudicina, 328 F.R.D. at 514 (“This
Court believes that the Seventh Circuit in [Oberweis] applied waiver of the psychotherapist-patient
privilege broadly.”).
The court in Laudicina determined that the Court of Appeals intended to embrace the
“broad” approach in Oberweis. 328 F.R.D. at 512-18. The court opined that “[a]llowing for ‘garden
variety’ damages without finding a waiver of the psychotherapist-patient privilege is a half
measure.” Id. at 511. Further, the court noted that the language in Oberweis is broad and sweeping,
and that “the judges on the Seventh Circuit are careful writers: They say what they mean and mean
what they say. The broad language hedges no bets. In Oberweis, the Seventh Circuit is all in. The
use of this type of language must have been employed for a reason.” Id. at 514. Additionally, the
court observed that cases “recognize that the Seventh Circuit applies waiver broadly.” Id.
(collecting cases). Finally, the court explained that “commentators agree that the Seventh Circuit
falls within the broad waiver camp.” Id.
The court in Laudicina further offered several well-reasoned arguments as to why the
“middle ground” approach, under which the privilege is waived only if the plaintiff is seeking
“garden variety” emotional distress damages, is problematic. Id. at 515-18. While the Court finds

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these arguments compelling, it need not delve into them here because Plaintiff has waived the
psychotherapist-patient privilege under both the “broad” and “middle ground” approaches, and the
“narrow” approach finds no support in the case law of this jurisdiction. 5
In his Amended Complaint, Plaintiff asserts that he has “sustained tremendous damages,
including, without limitation, emotional distress, loss of educational, military career opportunities,
economic injuries and other direct and consequential damages.” (Am. Compl. ¶ 124 ECF No. 51).
In the prayer for relief, Plaintiff seeks damages for injury to his “physical well-being, emotional
and psychological damages, damages to reputation, past and future economic losses, loss of
educational and athletic opportunities, and loss of future career prospects . . . .” Id. at ¶ (ii)(a),
p. 66-67. Using the “broad” approach, under which a plaintiff waives the psychotherapist-patient
privilege by seeking any damages for emotional distress, Plaintiff has clearly waived the privilege
in the instant matter.
In reviewing this issue under the “middle ground” approach, the Court must determine
whether Plaintiff has alleged only “garden variety” damages. The term “garden variety” damages
has been defined in various ways. See Laudicina, 328 F.R.D. 513-14 (explaining that the term
“garden variety” in this context has no set definition). One source noted that English dictionaries
define “garden variety” as “[o]rdinary, common, or unexceptional.” Michael D’Ambrosio, The
Psychotherapist-Patient Privilege in Prison Litigation: How Can You Claim “Garden Variety”
Emotional Distress When the Flowers are Made Out of Steel, 43 Fordham Urb. L.J. 915, 946
(2016) (internal quotation marks and citation omitted). Another defined such damages as “the
negative emotions that [the plaintiff] experienced essentially as the intrinsic result of the

5

And, the non-parties do not advance any argument regarding the “narrow” approach but, rather, focus on the
contention that Plaintiff seeks mere garden variety damages for his emotional distress claims. (Non-parties’ Reply 5-6,
ECF No. 130). Plaintiff, in turn, offers no argument on any of the three approaches.

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defendant’s alleged conduct,” such as “humiliation, embarrassment, and other similar emotions,”
but not the “resulting symptoms or conditions that [the plaintiff] might have suffered.” Santelli v.
Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999). And, yet a third explained that they were
“damages limited to the typical negative emotional impact on the plaintiff that obviously flow from
the defendant’s alleged misconduct . . . .” Awalt v. Marketti, 287 F.R.D. 409, 418 (N.D. Ill. 2012).
In addition to these definitions, the court in Flowers collected still more from numerous cases:
Garden variety emotional damages are: “the distress that any healthy, well-adjusted
person would likely feel as a result of being so victimized,” Kunstler v. City of New
York, 2006 WL 2516625, [at *]9 (S.D.N.Y. 2006); “the generalized insult, hurt
feelings and lingering resentment which anyone could be expected to feel” given
the defendant’s conduct, Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 657, 660
(D. Kan. 2004); the “normal distress experienced as a result of the [claimed
injury],” Carr v. Double T Diner, 2010 WL 3522428, [at *]3 (D. Md. 2010); . . .
the “‘generalized insult, hurt feelings, and lingering resentment that does not
involve a significant disruption of the plaintiff’s work life and rarely involves more
than a temporary disruption of the claimant’s personal life,’” Ortiz [v. Potter], 2010
WL 796960, [at *]3 [(E.D. Cal. Mar. 5, 2010)]; the “ordinary or commonplace,”
“simple or usual,” Rhodes v. County of Placer, 2011 WL 130160, [at *]5 (E.D.
Cal. 2011); Valentine v. First Advantage Saferent Inc., 2009 WL 3841967, [at *]1
(C.D. Cal. 2009); those that do not involve psychological treatment or adversely
affect any “‘particular life activities,’” Press v. Concord Mortgage Corp., 2009 WL
6758998, [at *]7 (S.D.N.Y. 2009); those where the plaintiff describes his or her
distress “in vague or conclusory terms,” but does not describe “the[ir] severity or
consequences,” Wallace v. Suffolk County Police Dept., 2010 WL 3835882, [at *]9
(E.D.N.Y. 2010); or those that involve the general pain and suffering and emotional
distress one feels at the time of the complained-of conduct, but not any ongoing
emotional distress. Kim v. Interdent Inc., 2010 WL 1996607, [at *]1 (N.D.
Cal. 2010).
274 F.R.D. at 225-26.
Under these definitions, particularly when they are considered in combination, Plaintiff’s
allegations in the instant matter extend well beyond “garden variety” emotional distress damages.
Plaintiff seeks $100,000.00 in damages for emotional and psychological injuries (Resp. Ex. C 5,
ECF No. 125-4). While the Court agrees that “‘garden variety’ damages are difficult to define,”
there is no support for the argument that damages for severe anxiety that prevented a plaintiff from
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working, or even at times performing menial tasks, are mere “garden variety.” Laudicina,
328 F.R.D. at 517. Yet, those are precisely the type of damages that Plaintiff seeks. During his
June 2020 deposition, Plaintiff testified that he has not worked since 2018 due to severe anxiety
and, further, that this anxiety made it difficult for him to perform menial tasks. (Resp.
Ex. D 191:10-17, ECF No. 125-5). 6 Plaintiff further testified that he sees Mr. Perry for counseling
specifically to treat this anxiety, as well as depression. Id. at 148:11-14. And, perhaps most
importantly, Plaintiff lays the blame for his difficulties in this area squarely at Defendants’ feet.
Id. at 148:11-19. With this testimony, Plaintiff connects his emotional distress claims to his claim
regarding the loss of future career prospects.
Additionally, Plaintiff has refined his request for damages for emotional and psychological
injuries throughout the course of this litigation and his treatment with Mr. Perry. Plaintiff’s initial
disclosures from October 18, 2019 and December 2, 2019 note that he seeks “[n]on-economic
damages (physical well-being, emotional and psychological damages, damages to reputation) not
subject to calculation, to be determined at trial.” (Resp. Ex. A 3, ECF No. 125-2; Resp. Ex. B 4,
ECF No. 125-3). It is not until April 29, 2020, that Plaintiff discloses that he is seeking $100,000
in emotional and psychological damages, noting that “[t]his amount is based upon a computation
derived from considering jury instructions for awarding infliction of emotional distress damages.”
(Resp. Ex. C 5, ECF No. 125-4). On these facts, Plaintiff’s claims for emotional distress damages
rise above any definition of “garden variety” damages. Accordingly, Plaintiff has waived the

6

The Court notes that, while Plaintiff testified that he has not worked since 2018, he further stated that he was able to
begin doing “tasks” in 2019. (Resp. Ex. D 191:17-23, ECF No. 125-5).

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psychotherapist-patient privilege by placing his psychological state in issue via his claim for
damages for emotional distress.
6. Waiver of Privilege: Timeliness
Defendants argue that both Plaintiff’s and the non-parties’ assertions of the
psychotherapist-patient privilege are untimely. (Resp. 8-10, ECF No. 125). The non-parties
contend that Mr. Perry may assert the privilege on Plaintiff’s behalf and has timely done so by
filing the instant motion to quash pursuant to Rule 45. (Non-parties’ Reply 6-7, ECF No. 130).
Defendants, in turn, counter that the privilege has already been waived by Plaintiff’s failure to
timely assert it in response to Defendants’ discovery requests. (Resp. 8-10, ECF No. 125). Once
again, the Court need not reach a determination on this issue. Regardless of whether it was timely
raised, Plaintiff has waived the psychotherapist-patient privilege—if it indeed applies at all—by
placing his psychological state in issue and seeking damages for the injuries discussed above.
Nonetheless, the Court notes that this case is a perfect example of unnecessary complications that
may arise when a party fails to clearly and unequivocally assert a privilege early in the course of
litigation.
7. Defendants’ Request for Attorneys’ Fees and Costs
Defendants request an award of attorneys’ fees and costs incurred in response to the motion
to quash. (Resp. 16, ECF No. 125). As explained above, the law regarding the
psychotherapist-patient privilege is unsettled in this jurisdiction and, while the non-parties raised
at least one unmeritorious argument—namely, whether the subpoena was properly served—the
Court cannot find that it was improper for them to seek a determination from the Court on the issue
of whether Plaintiff’s communications with Mr. Perry are privileged and, further, whether Plaintiff

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waived the privilege. Accordingly, the Court denies Defendants’ request for attorneys’ fees and
costs.
CONCLUSION
Based on the foregoing, the Court hereby DENIES the Motion to Quash Subpoena to
Testify at a Deposition to Mr. Noel Perry [DE 115]. The Court ORDERS Noel Perry to appear for
a deposition at a time and date agreed upon by Mr. Perry, Plaintiff, and Defendants. Finally, the
Court DENIES Defendants’ request for attorneys’ fees and costs incurred in response to the
motion to quash.
So ORDERED this 11th day of January, 2021.
s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT

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