Garvin et al v. Siouxland Mental Health Center et al
Filing
52
ORDER denying 45 Appeal of Magistrate Judge Decision to District Court re 44 Motion to Compel and affirming Judge Zoss's ruling. Signed by Judge Mark W Bennett on 8/14/12. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SERENA GARVIN & KATHERINE
MURPHY,
Plaintiffs,
No. C10-4107-MWB
vs.
SIOUXLAND MENTAL HEALTH
SERVICES, INC. d/b/a SIOUXLAND
MENTAL HEALTH CENTER; KIM
FISCHER-CULVER and JIM RIXNER,
ORDER REGARDING PLAINTIFFS’
APPEAL OF MAGISTRATE’S
ORDER REGARDING MOTION TO
COMPEL
Defendants.
____________________
I. INTRODUCTION AND BACKGROUND
This case is before met on plaintiffs Serena Garvin and Katherine Murphy’s
Objection to Magistrate Order Denying Motion to Compel (docket no. 45). On May 22,
2012, then Chief United States Magistrate Judge Paul A. Zoss denied plaintiffs’ Motion
to Compel. Plaintiffs, a former female mental health therapist and a female community
support specialist of a mental health services provider, allege that they were subjected to
a sexually hostile work environment and retaliation in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Iowa Civil Rights Act, IOWA CODE
CH. 216. In their Motion to Compel, plaintiffs asked that defendant Kim Fischer-Culver
be ordered to produce documents and answer questions relating to her sexual orientation.
Specifically, plaintiffs ask that Fischer-Culver be ordered to produce “all medical records
that reflect mental health issues and mental health and counseling records for the last 15
years.” Plaintiff’s Mot. to Compel at ¶ 2 (docket no. 23). Plaintiffs also ask that Fischer-
Culver be ordered to appear at a deposition to answer questions about her sexual
orientation. Judge Zoss concluded that while Fischer-Culver’s sexual orientation was
relevant and admissible, her medical and mental health records were privileged and
protected from disclosure under Federal Rule of Evidence 501.
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Judge Zoss further
concluded that Fischer-Culver had done nothing to waive her privilege. Judge Zoss
additionally found that plaintiffs had already deposed Fischer-Culver and questioned her
about her sexual orientation and sexual preferences. Judge Zoss found that the only
questions Fischer-Culver had refused to answer were questions about what she had
discussed during therapy sessions. Judge Zoss concluded that Fischer-Culver was properly
instructed not to answer these questions since delved into privileged matters.
Plaintiffs have appealed that portion of Judge Zoss’s order finding that FischerCulver had not waived her privilege. Plaintiffs contend that Fischer-Culver waived her
privilege by discussing her therapy with plaintiffs. Defendants have not filed a response
to plaintiffs’ appeal.
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Rule 501 provides that:
The common law--as interpreted by United States courts
in the light of reason and experience--governs a claim of
privilege unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But in a civil case, state law governs privilege regarding a
claim or defense for which state law supplies the rule of
decision.
FED. R. EVID. 501.
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II. LEGAL ANALYSIS
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, “[t]he district judge
in the case must consider timely objections [to a magistrate judge’s ruling on
nondispositive matters] and modify or set aside any part of the order that is clearly
erroneous or contrary to law.” Fed. R. Civ. P. 72(a). Here, I find that Judge Zoss’s
decision denying plaintiffs’ Motion to Compel is neither clearly erroneous nor contrary to
law.
The Eighth Circuit Court of Appeals recently discussed evidentiary privileges,
observing that:
All evidentiary privileges asserted in federal court are
governed, in the first instance, by Federal Rule of Evidence
501. Federal privilege law, as conceived by Rule 501, is
determined by “the principles of common law as they may be
interpreted by the courts of the United States in the light of
reason and experience.” Fed. R. Evid. 501. “The beginning of
any analysis under Rule 501 is the principle that ‘the public
has a right to every man’s evidence.’” Carman, 114 F.3d at
793 (quoting Hardwicke, L.C.J., quoted in 12 Cobbett’s
Parliamentary History, 675, 693 (1742)). Thus, in the
development of testimonial privileges, courts “start with the
primary assumption that there is a general duty to give what
testimony one is capable of giving, and that any exemptions
which may exist are distinctly exceptional, being so many
derogations from a positive general rule.” Jaffee v. Redmond,
518 U.S. 1, 9, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996)
(quotations omitted). Accordingly, “these exceptions to the
demand for every man’s evidence are not lightly created nor
expansively construed, for they are in derogation of the search
for truth.” United States v. Nixon, 418 U.S. 683, 710, 94 S.
Ct. 3090, 41 L. Ed. 2d 1039 (1974).
United States v. Ghane, 673 F.3d 771, 780 (8th Cir. 2012) (footnote omitted).
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In Jaffee v. Redmond, 518 U.S. 1, 9 (1996), the United States Supreme Court
recognized 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.” Id. at 15. The Court observed that a testimonial “privilege protecting
confidential communications between a psychotherapist and her patient ‘promotes
sufficiently important interests to outweigh the need for probative evidence.’” Id. at 9–10
(quoting Trammel v. United States, 445 U.S. 40, 51 (1980)). The Court noted:
Effective psychotherapy . . . depends upon an atmosphere of
confidence and trust in which the patient is willing to make a
frank and complete disclosure of facts, emotions, memories,
and fears. Because of the sensitive nature of the problems for
which individuals consult psychotherapists, disclosure of
confidential communications made during counseling sessions
may cause embarrassment or disgrace. For this reason, the
mere possibility of disclosure may impede development of the
confidential relationship necessary for successful treatment.
Id. at 10. The Court went on to recognize that:
The psychotherapist privilege serves the public interest by
facilitating the provision of appropriate treatment for
individuals suffering the effects of a mental or emotional
problem. The mental health of our citizenry, no less than its
physical health, is a public good of transcendent importance.
Id. at 11.
In Jaffee, the Court extended the psychotherapist-patient privilege to licensed social
workers. Id. at 15. The Court reasoned that licensed social workers provide important
mental health treatment and their clients often include individuals unable to afford a
psychiatrist or psychologist. The Court observed that counseling sessions with a social
worker serve the same public goals as those with a psychiatrist or psychologist. Thus, the
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Court held that conversations and notes taken during counseling sessions are protected
from compelled disclosure under Rule 501. Id. at 16.
The psychotherapist-patient privilege can be waived. Jaffee, 518 U.S. at 15 n.14;
Ghane, 673 F.3d at 786.
The issue here is whether Fischer-Culver waived her
psychotherapist-patient privilege by her actions. The record shows that, at most, FischerCulver mentioned to co-workers that she was in recovery for alcoholism and was
undergoing psychotherapy. Federal courts have held that the psychotherapist-patient
privilege can be waived if the patient discloses the substance of the therapy sessions to
third parties. See United States v. Kokoski, 435 Fed. App’x 472, 477 (6th Cir. 2011);
United States v. Bishop, No. 97-1175, 1998 WL 385898, at *5 (6th Cir. July 1, 1998);
Doe v. Ensey, 220 F.R.D. 422, 425-26 (M.D. PA 2004). In this case, based on the
limited record before me, Fischer-Culver merely told Garvin and Murphy that she was
undergoing therapy. Garvin and Murphy’s deposition transcripts do not indicate, nor have
plaintiffs otherwise demonstrated, that the substance of Fischer-Culver’s therapy sessions
was disclosed by her to Garvin, Murphy, or any other person.
Thus, I conclude that
Fischer-Culver did not waive the psychotherapist-patient privilege as to the content of her
therapy sessions. See Koch v. Cox, 489 F.3d 384, 391 (D.C. Cir. 2007) (holding that “a
plaintiff does not put his mental state in issue merely by acknowledging he suffers from
depression. . .”); Richardson v. Sexual Assault/Spouse Abuse Resource Ctr., Inc., 764 F.
Supp.2d 736, (D. MD 2011) (holding that “disclosure of an individual’s receipt of services
is not tantamount to a disclosure of confidential information and does not waive the
privilege that may be associated with any confidential information.”); Sorenson v. H&R
Block, Inc., 197 F.R.D. 199, 205 (D. Mass. 2000) (holding that plaintiffs did not waive
psychotherapist privilege by identifying treating health care providers as well as the dates
and costs of their treatments). Consequently, Judge Zoss’s decision denying plaintiffs’
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Motion to Compel is neither clearly erroneous nor contrary to law, and I deny plaintiffs’
appeal and affirm Judge Zoss’s ruling.
IT IS SO ORDERED.
DATED this 14th day of August, 2012.
__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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