GUNZINGER v. JOHN LUCAS TREE EXPERTS CO et al

Filing 27

MEMORANDUM DECISION AND ORDER ON DEFENDANTS' MOTION TO COMPEL PRODUCTION OF PLAINTIFF'S MENTAL HEALTH RECORDS By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

RYAN GUNZINGER,
Plaintiff
v.
JOHN LUCAS TREE EXPERTS
CO., et al.,
Defendants

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No. 2:17-cv-00125-GZS

MEMORANDUM DECISION AND ORDER ON DEFENDANTS’ MOTION
TO COMPEL PRODUCTION OF PLAINTIFF’S MENTAL HEALTH RECORDS
In this employment action, the defendants seek to compel the production of records
generated during the course of the plaintiff’s psychotherapy treatment by a licensed social worker
on the bases that the plaintiff expressly waived his psychotherapist-patient privilege and, in any
event, the denial of access to those records would be unfairly prejudicial. In the alternative, the
defendants seek an order clarifying that certain damages do not qualify as “garden-variety”
emotional distress damages. Finally, they seek to depose the plaintiff’s treating social worker
regardless of whether access to her records is granted.
Treating the discovery dispute as a motion to compel, and with the benefit of letter briefs
and responses that I directed the parties to submit, see ECF No. 20, I deny the motion for the
reasons that follow.
I.

Applicable Legal Standard

Rule 26(b) of the Federal Rules of Civil Procedure outlines the general scope of permissible
discovery in a civil action.
Unless otherwise limited by court order, the scope of discovery is as follows:
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
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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 be discoverable.
Fed. R. Civ. P. 26(b)(1).
“[A] party resisting discovery has the burden of showing some sufficient reason why
discovery should not be allowed[.]” Flag Fables, Inc. v. Jean Ann’s Country Flags & Crafts, Inc.,
730 F. Supp. 1165, 1186 (D. Mass. 1989) (citation and internal quotation marks omitted). In
addition, the proponent of a privilege bears the burden of demonstrating entitlement to its
protection. See, e.g., In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.),
348 F.3d 16, 22 (1st Cir. 2003) (“Despite a grand jury’s vaunted right to every man’s evidence, it
must, nevertheless, respect a valid claim of privilege. But the party who invokes the privilege
bears the burden of establishing that it applies to the communications at issue and that it has not
been waived.”) (citations omitted).
II.

Factual Background

As relevant here, the plaintiff’s complaint alleges the following:
The plaintiff began working for the defendant John Lucas Tree Experts Co. (“Lucas Tree”)
as a laborer on August 15, 2011. See Complaint and Request for Jury Trial and Injunctive Relief
(“Complaint”) (ECF No. 1) ¶ 17. On February 27, 2015, the plaintiff went home after working a
full day and woke up in the emergency room after passing out from dehydration. See id. ¶ 19. The
next day, he informed his supervisor of his condition, and was told to remain home and rest. See
id. ¶ 20. On March 2, 2015, the plaintiff returned to work but did not feel well, and he called out
of work on March 3, 2015. See id. ¶¶ 21-22. He never returned to work. See id. ¶¶ 23-89.

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On March 26, 2015, the plaintiff’s doctor cleared him to return to work after treating him
for potential liver and pancreas ailments. See id. ¶¶ 26, 29. Lucas Tree refused to allow the
plaintiff to return to work until he received an additional evaluation by defendant Concentra
Medical Centers (“Concentra”). See id. ¶ 31. Concentra never cleared the plaintiff to return to
work, see id. ¶¶ 38-40, 54-70, and he was terminated by Lucas Tree on May 27, 2015, see id. ¶ 83.
The plaintiff alleges that Lucas Tree violated his rights pursuant to the Americans with
Disabilities Act (“ADA”), the ADA Amendments Act of 2008 (“ADAAA”), the Maine Human
Rights Act (“MHRA”), the Family and Medical Leave Act (“FMLA”), and the Maine Family
Medical Leave Requirements Act (“MFMLR”), and that Concentra violated his rights pursuant to
the ADA, ADAAA, and MHRA.1 See id. ¶¶ 91-183. As to several of these claims, the plaintiff
seeks damages for, inter alia, “severe emotional pain and suffering, mental anguish, humiliation,
[and] loss of enjoyment of life[.]” Id. ¶¶ 101, 114, 125, 137.
During the course of written discovery, the plaintiff was asked to identify the health care
providers who provided treatment in relation to the incident at issue in the suit. See Letter Brief
dated October 19, 2017, from Katherine I. Rand, Esq. to Hon. John H. Rich III (“Defendants’
Brief”) at 2.2 In response to that interrogatory, the plaintiff disclosed that he had seen Catherine
Ouellette beginning in September 2015 “for assistance in dealing with the impact of his
termination, the fact that [his] parents had to support him now and the financial and emotional
impact on them having to do that.” See id. (quoting the plaintiff’s response to Lucas Tree’s
Interrogatory Number 10). In his responses to requests for production of documents that sought

The plaintiff’s suit also names an individual, Kathy Buxton, whom he alleges violated his FMLA rights. See
Complaint ¶¶ 3, 148-59, 165-75.
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Attorney Rand, who represents Lucas Tree and Buxton, noted that Concentra joined in the Defendants’ Brief. See
Defendants’ Brief at 1.
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records from his health care providers, he noted that he had requested Ouellette’s records and
would produce them to the defendants when he received them. See id.
On July 24, 2017, the plaintiff notified the defendants that he was designating Ouellette as
a treating expert witness. See id. at 3. At the same time, he provided the defendants with a letter
from Ouellette outlining and describing her treatment of him. See id. The letter described, inter
alia, conditions that the plaintiff alleged stemmed from his firing by Lucas Tree. See id. The letter
also noted Ouellette’s assessment that the plaintiff’s termination had specific detrimental effects
on his mental health. See id.
On September 21, 2017, the plaintiff’s counsel confirmed to opposing counsel that she had
received the plaintiff’s medical file from Ouellette, but she refused to provide it to the defendants
because she had determined that it contained sensitive information about the plaintiff’s children.
See id. She stated that the plaintiff would withdraw his designation of Ouellette as an expert
witness and seek only “garden variety” emotional distress damages.

See id.

Counsel for

defendants Lucas Tree and Buxton suggested that, instead, the plaintiff’s counsel redact portions
of the records discussing the plaintiff’s children. See id. In a letter dated September 22, 2017, the
plaintiff’s counsel declined to do so, reiterating that the plaintiff would not produce Ouellette’s
records, invoking the psychotherapist-patient privilege, and stating that the plaintiff agreed to
adopt the four limitations on emotional distress damages set forth in Doe v. Brunswick Sch. Dep’t,
No. 2:15-cv-257-DBH, 2016 WL 8732370, at *4 (D. Me. Apr. 29, 2016). See id. at 3. Those
limitations are:
1. The plaintiff[] do[es] not pursue any claims for damages due to a medically
diagnosable mental health condition.
2. The plaintiff[] do[es] not rely on any medical or mental health experts,
providers, or records to prove damages.

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3. The plaintiff[] do[es] not seek any damages based on hospitalizations or
medical or mental health treatment or evaluation.
4. The plaintiff[] do[es] not seek damages for emotional distress beyond that
which would likely be felt by any healthy, well-adjusted person as a result of
the causes of action that [he] continue[s] to allege[.]
See Doe, 2016 WL 8732370, at *4.
Several days later, the plaintiff sat for his deposition. See Defendants’ Brief at 3. There,
the plaintiff’s counsel restated these positions for the record. See id. Over objection, the plaintiff
responded to several inquiries from defense counsel about the nature of his treatment with
Ouellette and the issues they discussed. See Exh. B to Letter Brief dated October 19, 2017, from
Rebecca S. Webber, Esq. to Judge John H. Rich III (“Plaintiff’s Brief”); Defendants’ Brief at 3-4
n.2.
III.

Discussion

The defendants argue that they are entitled to the patient notes and records of Ouellette on
two grounds: that the plaintiff expressly waived the psychotherapist-patient privilege with his
disclosures earlier in the case, and that they would be unfairly prejudiced if the plaintiff were
allowed to shield the records, which appear to contain information relevant not only to damages
but also to liability. See Defendants’ Brief at 4-6. In the alternative, they seek an order declaring
certain damages outside the scope of garden-variety emotional distress damages. See id. at 7.
Finally, regardless of whether access to the records is granted, they seek to depose Ouellette for
the limited purpose of inquiring into the substance of her July 24, 2017, letter to the plaintiff’s
counsel, which was provided to them. See id. For the reasons set forth below, I deny all relief
sought.

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A. The Plaintiff’s Asserted Waiver of the Psychotherapist-Patient Privilege
The Supreme Court has affirmed the principle that confidential communications between
a psychotherapist and patient “in the course of diagnosis or treatment” are privileged and, thus,
“protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.” Jaffee
v. Redmond, 518 U.S. 1, 15 (1996) (footnote omitted). The privilege extends to confidential
communications made to licensed social workers in the course of psychotherapy. See id. In so
holding, the Court made clear that the “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 (citation and internal punctuation omitted). The Court
recognized that “[e]ffective 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[,]” and that “the mere possibility of disclosure may impede development of
the confidential relationship necessary for successful treatment.” Id. at 10 (footnote omitted).
In adopting the privilege, the Court rejected the notion that the privilege could or should
be subject to a balancing test, whereby it could be vitiated if a trial court found that, “in the interests
of justice, the evidentiary need for the disclosure of the contents of a patient’s counseling sessions
outweighs that patient’s privacy interests.” Id. at 7 (citation and internal quotation marks omitted);
see also id. at 17-18. The Court reasoned:
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.
. . . [I]f the purpose of the privilege is to be served, the participants in the
confidential conversation “must be able to predict with some degree of certainty
whether particular discussions will be protected. An uncertain privilege, or one
which purports to be certain but results in widely varying applications by the courts,
is little better than no privilege at all.”
Id. at 17-18 (quoting Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)).
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Despite these strong protections, the psychotherapist-patient privilege can be either
impliedly or expressly waived in certain circumstances. For example, it can be impliedly waived
when a plaintiff seeks damages “for the inducement or aggravation of a diagnosable dysfunction
or equivalent injury[,]” inherently placing his or her psychotherapeutic treatment at issue, Davis v.
Global Montello Grp. Corp., No. 2:16-cv-00418-JDL, 2017 WL 875782, at *1 (D. Me. Mar. 3,
2017) (citation and internal quotation marks omitted), although “the mere assertion of a damages
claim for ‘garden variety’ or ‘incidental’ emotional distress is not sufficient to constitute waiver
of the psychotherapist-patient privilege[,]” Morrisette v. Kennebec Cty., No Civ. 01-01-B-S, 2001
WL 969014, at *1 (D. Me. Aug. 21, 2001).
And it can be expressly waived “[w]hen otherwise privileged communications are
disclosed to a third party,” destroying “the confidentiality upon which the privilege is premised[,]”
In re Keeper of Records, 348 F.3d at 22.

Indeed, “a party cannot partially disclose privileged

communications or affirmatively rely on privileged communications to support its claim . . . and
then shield the underlying communications from scrutiny by the opposing party.” In re Sims, 534
F.3d 117, 132 (2d Cir. 2008) (citation and internal quotation marks omitted) (emphasis in original).
Here, the defendants do not argue that the plaintiff impliedly waived the privilege but,
rather, that he expressly did so by his earlier conduct in the case, to wit: designating Ouellette as
an expert witness, agreeing, without objection, to provide Ouellette’s patient file and treatment
notes from her work with him, providing the defendants with Ouellette’s detailed letter
summarizing her treatment of him, and answering questions at his deposition about his treatment
with Ouellette. See Defendants’ Brief at 5. They contend that, “having intentionally revealed the
substance of his treatment with Ouellette, including testifying to the substance after indicating his
intent to assert the privilege, [the plaintiff] has expressly waived the privilege.” Id. Finally, they

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assert that the mere fact that the plaintiff has withdrawn any previous claims of extreme emotional
distress and pledged to seek only garden-variety emotional distress damages does not, and cannot,
un-ring the bell of his earlier pleadings and actions. See id. at 5-6 (asserting that the plaintiff “has
expressly waived the privilege, and . . . he may not ‘un-waive’ it by dialing back his claim for
emotional distress”) (emphasis in original).
For the reasons that follow, I conclude that the plaintiff meets his burden of demonstrating
that he has not expressly waived the privilege. As discussed below, there are circumstances in
which a privilege-holder who has made initial disclosures pertaining to psychotherapy can change
his or her mind and, in effect, “un-ring the bell” by means of a timely disavowal of further reliance
on the testimony or records of the psychotherapist and a pledge to seek only “garden variety”
emotional distress damages. The plaintiff effectively did so here.
The parties do not cite, nor do I find, a First Circuit case addressing whether a privilegeholder who has made psychotherapy disclosures can preserve the psychotherapist-patient privilege
through such a disavowal. However, as the plaintiff argues, see Reply Letter Brief dated October
23, 2017, from Rebecca S. Webber, Esq. to Judge John H. Rich III (“Plaintiff’s Reply”) at 2-4, his
case aligns more closely with Sims, in which the United States Court of Appeals for the Second
Circuit held that a privilege-holder’s disclosures did not waive the privilege, than with United
States v. Bolander, 722 F.3d 199, 223 (4th Cir. 2013), or Jacobs v. Conn. Cmty. Tech. Colleges,
258 F.R.D. 192, 196 (D. Conn. 2009), the cases cited by the defendants for the proposition that the
privilege was waived, see Defendants’ Brief at 5-6.
The court in Sims held that a privilege-holder had not waived the privilege in circumstances
in which, (i) during his deposition, at which he appeared pro se, he testified regarding his mental
distress as a result of the incident at issue and mental health treatment, (ii) he had not asserted a

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claim for emotional distress damages in his complaint, and, (iii) after obtaining representation by
counsel, he invoked the patient-psychotherapist privilege and withdrew any claim he may have
asserted to recover for non-garden-variety emotional distress damages. See Sims, 534 F.3d at 12125, 142.
The court recognized that the privilege-holder, “as a plaintiff in a civil case, was entitled
not to pursue a claim he had asserted[,]” as a result of which “his subsequent counseled express
disavowal of any claim for unusual emotional distress – whether such a claim was actually asserted
or was merely imputed to him by respondents – should have been given effect.” Id. at 136. The
court explained: “In light of the transcendent importance of the psychotherapist-patient privilege
as discussed in Jaffee, we agree . . . that a plaintiff may withdraw or formally abandon all claims
for emotional distress in order to avoid forfeiting his psychotherapist-patient privilege[.]” Id. at
134.
In the absence of controlling authority from the First Circuit, I adopt the Sims court’s wellreasoned approach, which both recognizes “the transcendent importance of the psychotherapistpatient privilege as discussed in Jaffee[,]” id., and comports with the principle that the plaintiff is
the “master[] of the complaint,” Caterpillar Inc. v. Williams, 482 U.S. 386, 395 (1987).
The defendants cite Bolander for the proposition that a privilege-holder waived the
psychotherapist-patient privilege when he willingly provided privileged material to a third party
and did not timely assert the privilege, and Jacobs for the proposition that a privilege-holder’s
disavowal of non-garden-variety emotional distress damages fell far short of remedying a waiver
when the privilege-holder had produced letters from a treating psychotherapist addressed to his
attorney detailing his mental health diagnoses. See Defendants’ Brief at 5-6.

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In my view, however, Bolander and Jacobs are materially distinguishable. The privilegeholder in Bolander failed to assert the psychotherapist-patient privilege at his deposition, “openly
discuss[ing]” his participation in therapy, and waited until approximately one month before his
evidentiary hearing to assert the privilege although “the case had been pending in the district court
for quite some time.” Bolander, 722 F.3d at 223. The Bolander court held, “By failing to timely
assert the psychotherapist-patient privilege, [the privilege-holder] waived whatever privilege he
may have had. Put another way, it was incumbent upon [the privilege-holder] to assert the
psychotherapist-patient privilege in a timely fashion, rather than waiting until the eleventh hour to
do so.” Id.
In this case, by contrast, the plaintiff did not wait until the eleventh hour but, rather, asserted
the privilege prior to his deposition, upon learning that he had reason to do so. See Plaintiff’s
Reply at 2.
The defendants argue that the plaintiff’s counsel “made a strategic decision to designate
Ouellette and to produce a detailed summary of [the plaintiff’s] treatment” and that “[i]t would be
patently unfair, and contrary to the basic principles of waiver, to permit her to reverse that decision
now that she has apparently decided the witness and related evidence will do more harm than good
to her client’s case.” Reply Letter Brief dated October 23, 2017, from Katherine I. Rand, Esq. to
Hon. John H. Rich III (“Defendants’ Reply”) at 2.
However, as the plaintiff explains, see Plaintiff’s Brief at 5, he designated Ouellette as a
treating expert in compliance with the court’s scheduling order, which required him to designate
any experts, including treating physicians, by August 17, 2017, see ECF No. 15 at 2. In similar
vein, he answered interrogatories and agreed to produce requested documents.

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While it is true that, as the defendants point out, see Defendants’ Reply at 2, the plaintiff
could have chosen not to disclose Ouellette and, in that sense, made a deliberate, strategic choice
to disclose her, I perceive no waiver in his decision to preserve the right to call her by making
disclosures in compliance with discovery requests and deadlines during the period when he lacked
information material to the decision whether to waive his psychotherapist-patient privilege. Upon
receiving that information (the Ouellette file), the plaintiff’s counsel promptly reviewed it and
conveyed in writing to the defendants, three days prior to the plaintiff’s September 25, 2017,
deposition, her client’s decision to withdraw Ouellette and abide by the Doe limitations. See
Plaintiff’s Brief at 5.3 To the extent that the defendants argue that it is unfair to permit the plaintiff
to “reverse” his waiver, see Defendants’ Reply at 2, they overlook the fact that the plaintiff has
elected to forgo potentially greater financial recovery in the form of higher emotional distress
damages in favor of preservation of his psychotherapist-patient privilege.
Finally, unlike the privilege-holder in Bolander, the plaintiff did not simply testify freely
and openly at deposition regarding his treatment with Ouellette. Instead, his counsel objected
when defendant Concentra’s counsel began to inquire into that subject matter. See Exh. B to
Plaintiff’s Brief. While the plaintiff’s counsel allowed the plaintiff to answer some questions over
objection on that subject, she eventually instructed him not to answer. See Plaintiff’s Brief at 5.
Nor does Jacobs help the defendants.

Jacobs held that the psychotherapist-patient

privilege was waived in circumstances in which, although the privilege-holder argued that “his
psychiatric condition is not part of the litigation and that his claim is nothing more than generalized

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In federal court, the rules governing discovery seek to encourage disclosure in order to foster the ability of both sides
to assess the strength of their claims or defenses, reach a resolution, or prepare for trial. A finding against the plaintiff
in these circumstances could have a chilling effect, deterring privilege-holders from engaging in full discovery on a
theory or issue they may later wish to reconsider for fear of waiving this sensitive privilege.

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emotional distress damages[,]” he had “placed his emotional state in issue through his responses
to the defendant’s interrogatories” and his disclosure to the defendant of two letters to his attorney
from treating psychotherapists. Jacobs, 258 F.R.D. at 197 (citation and internal punctuation
omitted).
Jacobs distinguished the controlling authority of Sims on the basis that, “[a]lthough the
plaintiff in Sims was able to avoid waiver of the psychotherapist-patient privilege by expressly
abandoning any claim to non-garden-variety emotional injury and by expressly agreeing not to
offer privileged communications or other evidence of his psychiatric condition in support of his
claim, here, the plaintiff’s disavowal falls far short.” Id.
In this case, the plaintiff’s “disavowal” is specific and express, and thus much closer to that
made in Sims than that made in Jacobs. He does not rely, as in Jacobs, on mere argument that his
psychiatric condition is not part of the litigation. Rather, as in Sims, he expressly abandoned any
claim to non-garden-variety emotional distress damages and agreed not to offer privileged
communications in support of his claim. I perceive no material distinction in the fact that the
privilege-holder’s disclosures in Sims were made solely by way of deposition testimony whereas,
here, the plaintiff designated Ouellette as an expert witness, provided her letter, and discussed her
treatment of him at deposition over his counsel’s objection and following his express renunciation
of intent to rely on Ouellette.
In sum, I find that the plaintiff did not waive the psychotherapist-patient privilege by virtue
of his earlier disclosures because he effectively negated their significance when, promptly upon
learning that he had reason to do so upon receiving the Ouellette file, he timely invoked the

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privilege by letter dated September 22, 2015, withdrew his designation of Ouellette as a witness,
and agreed to abide by the four Doe limitations.4
B. Asserted Prejudice to Defendants of Shielding Records from Discovery
The defendants argue, in the alternative, that they are entitled to Ouellette’s treatment
records because they “apparently contain information relevant to issues other than emotional
distress, including his alcohol use, as well as his behavior at Concentra, which Concentra maintains
prevented it from completing its fitness for duty examination.” Defendants’ Brief at 6. They
assert, for example, that in February 2015 the plaintiff experienced a 24-hour period of amnesia
during which he performed dangerous work for Lucas Tree, that this event was of concern to
Concentra, and that it is highly relevant to the plaintiff’s claims, including whether he was a
qualified individual with a disability for purposes of his ADA and MHRA claims. See id. As a
result, they contend, the plaintiff’s agreement to abide by the Doe factors does not render his
mental health treatment records irrelevant, and the defendants will be prejudiced by a denial of
access to them. See id.
Yet, as noted above, the Supreme Court in Jaffee made clear that the psychotherapistpatient privilege is not subject to a balancing test to be employed by a trial judge to determine if
the patient’s interest in privacy is outweighed by the evidentiary need for the records. See Jaffee,

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The plaintiff cites Clay v. Woodbury Cty., Iowa, 965 F.Supp.2d 1055, 1059 (N.D. Iowa July 17, 2013), for the
proposition that there are circumstances in which a possible waiver can be “dissolved.” Plaintiff’s Brief at 6; see also
Clay, 965 F. Supp.2d at 1059 (“While I see no reason why a litigant could not dissolve [Iowa’s] patient-litigant
exception by clearly and unambiguously removing a medical condition from his or her case, that has not happened
here.”). As the defendants observe, see Defendants’ Reply at 2-3, this observation by the Clay court pertained to an
implied waiver of the privilege by virtue of the application of Iowa’s patient-litigant exception. The Clay court went
on to rule, in addition, that the privilege-holder had expressly waived the privilege by conduct that included providing
the opposing side with copies of her psychotherapist’s records. See Clay, 965 F. Supp.2d at 1060. The defendants
argue that “this case is precisely like Clay.” Defendants’ Reply at 3. In this case, the plaintiff has not shared the
Ouellette file with the defendants. In any event, to the extent that Clay stands for the proposition that a privilegeholder cannot dissolve a possible express waiver by renouncing reliance on a treating psychotherapist and
appropriately cabining his or her damages claim, it interprets Iowa state law and is neither controlling nor persuasive.

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518 U.S. at 17-18. That is precisely what the defendants are asking this court to do: to determine
that their need to develop or supplement their defense outweighs the plaintiff’s interest in
protecting his confidential communications with Ouellette. Under Jaffee, this argument cannot
succeed.
C. Defendants’ Request for Ruling on Certain Categories of Damages
The defendants request that, if the court denies them access to the Ouellette file, it deem
some of the plaintiff’s potential damage claims beyond the bounds of garden-variety emotional
distress damages. See Defendants’ Brief at 7. Specifically, they seek a ruling that, to the extent
that the plaintiff seeks damages flowing from his relapse into alcohol abuse and/or the dissolution
of his engagement to his former fiancée, such damages are not garden-variety. See id.
I deny this request without prejudice on the basis that it is premature and is appropriately
resolved by the trial judge. I note, however, that the plaintiff has pledged to abide by the Doe
limitations, and will be held to those limitations at trial.
D. Defendants’ Request To Depose Ouellette
Finally, the defendants assert that, regardless of whether or not they are granted access to
Ouellette’s file, they are entitled to depose her “concerning the subjects set forth in her July 24,
2017 letter” to the plaintiff’s counsel. Defendants’ Brief at 7. They contend that, having produced
the letter to the defendants, the plaintiff expressly waived his psychotherapist-patient privilege at
the very least with respect to the information contained therein. See id. I deny this request.
As discussed above, the plaintiff effectively dissolved any waiver of the privilege by
withdrawing Ouellette as a witness and agreeing to abide by the four Doe limitations on emotional
distress damages. The treatment of the plaintiff by Ouellette, including information disclosed in
her July 24 letter, therefore is no longer relevant to this case.

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IV.

Conclusion

For the foregoing reasons, I DENY the defendants’ motion to compel the production of the
Ouellette patient notes and records.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file an
objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 12th day of November, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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