Rutledge v. Elliot Health System et al

Filing 36

ORDER denying without prejudice 21 Motion to Compel. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Lonnie Rutledge
v.

Civil No. 17-cv-110-JD
Opinion No. 2018 DNH 031

Elliot Health System and
Elliot Hospital

O R D E R
Lonnie Rutledge brings claims against her former employer,
Elliot Health System and Elliot Hospital, for age discrimination
and wrongful termination.

The defendants move to compel

Rutledge to provide more complete answers to certain
interrogatories and to execute authorizations to allow them to
obtain her medical and psychotherapy records.

In response,

Rutledge objects to producing her psychotherapy and
authorizations for those records, and in her “Reply Memorandum,”
filed separately, objects to providing more complete answers.
Standard of Review
“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 . . . .”
26(b)(1).

Fed. R. Civ. P.

When disputes arise, a party may move to compel

discovery, after first attempting in good faith to resolve the

problem without court action.

Fed. R. Civ. P. 37(a).

Initially, the party moving to compel bears the burden of
showing that the discovery it seeks is relevant.

Koninklijke

Philips N.V. v. Wangs Alliance Corp., 2018 WL 283893, at *1 (D.
Mass. Jan. 2, 2018) (citing Continental Western Ins. Co. v.
Opechee Constr. Corp., 2016 WL 1642626, at *1 (D.N.H. Apr. 25,
2016)).

If that burden is met, “the objecting party bears the

burden of showing that a discovery request is improper.”
Continental Western, 2016 WL 1642626, at *1.
A.

Interrogatory Concerning Allegations That Others Were Forced
Out Because of Age or Salary
In their motion, the defendants sought a more complete

answer to the following interrogatory propounded on June 1,
2017:
5. Please state in detail and with particularity all
facts on which you base your allegations as set forth
in Paragraph 6 of your Complaint that you witnessed a
pattern of Defendant allegedly “forcing out or
terminating many of the most senior nurses whose
salary and benefit packages were at or near the
highest levels of salary and benefits available at the
hospital, and they were routinely replaced, if at all,
by younger nurses,” identifying as set forth in the
Instructions and Definitions section above all
evidence (documentary or testimonial) that supports
your claims.
Rutledge responded that “[t]here were many instances in which
senior nurses were treated badly or unfairly, and where
preference was given to the younger nurses.”

2

Rutledge then

listed seven instances that she believed supported her claim.
The defendants represent that Rutledge responded to supplemental
interrogatories on December 5, 2017, which included additional
information pertaining to Interrogatory 5.
The defendants contend that Rutledge’s answers to
Interrogatory 5 are insufficient because she “failed to provide
the date(s) the incidents occurred, the source(s) of the
information set forth in each example, whether she observed the
event, heard about the event from another employee and/or
received documents regarding the event, and did not identify the
basis for her conclusions that the discipline was imposed by the
Elliot for the reasons stated in her response.”

Rutledge did

not respond in her objection to that part of the motion to
compel.
The defendants pointed out in their proposed reply
(attached to their motion for leave to file a reply) that
Rutledge had failed to respond to the motion to compel a more
complete answer to Interrogatory 5.

Rutledge then filed a

“Reply Memorandum” in which she explained her lack of additional
information in her responses to Interrogatory 5.

Rutledge’s

“Reply Memorandum” might be construed as an anticipatory request
to file a surreply, see Local Rule 7.1(e)(3).

In essence,

Rutledge represents that she has provided all the information

3

she knows about the incidents that she listed to support her
claim in paragraph 6 of her complaint.
The court cannot compel a party to provide information that
does not exist.

See Moulton v. Bane, 2015 WL 12990224, at *2

(D.N.H. Nov. 10, 2015).

Because Rutledge represents that she

does not have the information that the defendants seek, however,
she will not be allowed to use or present such information in
support of her claims.1

Rutledge is limited to the answers she

has provided, which may or may not constitute competent evidence
for purposes of summary judgment and trial.
B.

Discovery of Psychotherapy Records
The defendants move to compel Rutledge to provide signed

authorizations for them to obtain her psychotherapy records,
which were requested in two interrogatories propounded on June
1, 2017.

In her supplementary response to the interrogatories,

Rutledge asserted that her psychotherapy records were not
subject to discovery, based on Desclos v. S. N.H. Med. Ctr., 153
N.H. 607, 613 (2006).

The defendants contend that Rutledge has

waived the privilege for her psychotherapy records by making a

To the extent Rutledge faults the defendants for failing
to ask her follow up questions on these topics during her
deposition, she has not shown that a party waives the right to
compel a response to an interrogatory by not including the same
question during a deposition.
1

4

claim for emotional distress and that under Desclos she is
required to produce the records.
In her responses to the motion to compel, Rutledge
clarified her claims for emotional distress.

She explains that

she does not claim that her termination caused her to have colon
cancer but instead claims that her suffering due to losing her
job was made worse because she had colon cancer.

She also

asserts that a jury can assess the emotional distress she
suffered because of losing her job without the need for expert
testimony.
In light of that clarification, along with the defendants’
related assumption that Rutledge is not claiming emotional
distress beyond “garden variety” or “generic mental suffering,”
the defendants represent that they will not pursue
authorizations for Rutledge’s psychotherapy records.

They also

state that they will move in limine to preclude Rutledge from
making any reference at trial to her treatment for cancer.
Rutledge brings a federal claim for age discrimination in
violation of the Age Discrimination in Employment Act, 29 U.S.C.
§ 623 with a claim for age discrimination under RSA Chapter 354A.
law.

She also alleges wrongful termination under New Hampshire
Federal law provides the rule for a claim of privilege for

a federal claim, while “state law governs privilege regarding a

5

claim or defense for which state law supplies the rule of
decision.”

Fed. R. Evid. 501.

Therefore, this case implicates

both federal and state law with regard to the application of a
psychotherapist-patient privilege.

See, e.g., Wamala v. City of

Nashua, 2010 WL 3746008, at *5 (D.N.H. Sept. 2010); Saalfrank v.
Town of Alton, 2009 WL 3578459, at *5, n.7 (D.N.H. Oct. 27,
2009).
Under federal law, confidential communications made to
licensed providers in the course of psychotherapy are
privileged.

Jaffee v. Redmond, 518 U.S. 1, 15 (1996).

Like the

state privilege addressed in Desclos, the federal privilege can
be waived.

See, e.g., Gunzinger v. John Lucas Tree Experts Co.,

2017 WL 5340370, at *4-*6 (D. Me. Nov. 12, 2017); Silvestri v.
Smith, 2016 WL 778358, at *3-*4 (D. Mass. Feb. 26, 2016); Cabot
v. Lewis, 2015 WL 13648107, at *1-*2 (D. Mass. July 8, 2015).
Courts disagree, however, about what constitutes waiver of the
federal privilege.

See, e.g., United States v. Lara, 850 F.3d

686, 690 (4th Cir. 2017) (describing knowing and voluntary
waiver); Maday v. Public Libraries of Saginaw, 480 F.3d 815, 821
(6th Cir. 2007) (putting emotional state at issue waives the
privilege by implication); United States v. Bolander, 722 F.3d
199, 222-23 (4th Cir. 2013) (describing waiver by conduct);

6

United States v. Ghane, 673 F.3d 771, 786-87 (8th Cir. 2012)
(waiver by consent form given by a psychotherapist not valid);
Fisher v. Southwestern Bell Tel. Co., 361 Fed. Appx. 974, 978
(10th Cir. 2010) (placing mental condition at issue waives
privilege; Morgan v. Spivey, 2017 WL 6210896, at *4 (E.D.N.C.
Dec. 8, 2017) (explaining circumstances of waiver under Fourth
Circuit precedent); Marsteller v. Butterfield 8 Stamford LLC,
2017 WL 5769903, at *2-*3 (D. Conn. Nov. 27, 2017) (waiver
occurs when plaintiff puts mental condition at issue).
In this case, it is not clear whether the psychotherapistpatient privilege is still an issue, and if so, whether Rutledge
has shown that her records are protected under both the state
and federal privileges.

To avoid making an unnecessary

determination of the application of the privileges in uncertain
circumstances, the court directs counsel to confer in order to
determine whether an issue remains as to the need for
authorizations for Rutledge’s psychotherapy records.

Any

further issues may be addressed in an appropriate motion that
thoroughly addresses the privilege issues in the context of
specifically disputed discovery.

7

Conclusion
For the foregoing reasons, the defendants’ motion to compel
(document no. 21) is denied without prejudice.
SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge

February 13, 2018
cc:

Debra Weiss Ford, Esq.
Samuel V. Maxwell, Esq.
Leslie C. Nixon, Esq.
David P. Slawsky, Esq.
Martha Van Oot, Esq.

8