Weber v. The Resource Training Center, Inc. et al

Filing 80

ORDER granting 65 Motion to Quash; denying 69 Motion for Discovery; denying 70 Motion for Discovery, subject to the contingency set forth in the attached order. Ordered by Chief Mag. Judge Steven M. Gold on 12/23/2014. (Gold, Steven)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHELLE WEBER,
Plaintiff,
-against-

ORDER
CV-13-6480 (ENV) (SMG)

THE RESOURCE TRAINING CENTER, INC.,
DONNA MAE DEPOLA, DONA PAGAN,
MICHAEL BUCKLEY and MARIA MENDEZ,
Defendants.
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GOLD, S., U.S.M.J.:
Plaintiff Michelle Weber brings this action pursuant to the Americans with Disabilities
Act and state and local law claiming that defendants discriminated against her when they
terminated her employment. Defendants have served a subpoena seeking testimony and
documents from plaintiff’s psychotherapist. Plaintiff has moved to quash the subpoena, Docket
Entry 65 (“Pl. Mot.”), and defendants have cross-moved to compel production of plaintiff’s
treatment records, Docket Entries 69-70. In addition, plaintiff complains that defendants have
included confidential information in their Memorandum of Law and seeks to have that
information redacted from the publicly filed version of the memorandum. Docket Entries 71, 77.
For the following reasons, and subject to the condition that plaintiff file an affidavit containing
the provisions indicated below, plaintiff’s motion is granted and defendants’ cross-motion is
denied.
Confidential communications between a licensed psychotherapist and a patient, made in
the course of diagnosis or treatment, are privileged. Jaffe v. Redmond, 518 U.S. 1, 15 (1996).
The question raised by the pending cross-motions is whether in this case the privilege has been
waived.

The Second Circuit explored the circumstances under which a party may waive the
psychotherapist-patient privilege in In re Sims, 534 F.3d 117 (2d Cir. 2008). The Court held in
Sims that a party may not affirmatively rely upon privileged communications in support of her
claims or defenses, or make a tactical decision to disclose a subset of confidential
communications, yet shield the remainder of the underlying communications from scrutiny by
her adversary. Id. at 132. On the other hand, partial disclosure does not result in forfeiture
unless the disclosure is made for strategic advantage. Id. at 133-34 (citing Koch v. Cox, 489 F.3d
384, 391 (D.C. Cir. 2007)). Nor does a party forfeit a privilege by taking a position or making
allegations that the privileged communications might contradict. Id. at 132 (citing United States
v. Salerno, 505 U.S. 317, 323 (1992)).
Plaintiff asserts that she is seeking only “garden-variety emotional pain and suffering
damages.” Plaintiff’s Letter Motion dated Nov. 26, 2014, Docket Entry 65 (“Pl. Mot.”) at 1-2.
A party does not put her mental state at issue and waive her psychotherapist-patient privilege by
seeking incidental, garden-variety emotional damages. See, e.g., Pelosi v. Spota, 607 F. Supp. 2d
366, 376 n.11 (E.D.N.Y. 2009).
Defendants argue that plaintiff has waived her privilege by producing some, but not all,
of her psychotherapy records in discovery. However, plaintiff represents that she produced these
records to be complete and open in her discovery responses and has no intention of using the
records – or presumably, the communications they reflect – affirmatively in this litigation. Pl.
Mot. at 1 n.2.
Defendants assert as well that the records plaintiff claims are privileged include
references to her employment by defendants and even refer to individual defendants by name.
Docket Entry 70 at 5-7. This argument establishes only that the records are relevant; it does not

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establish that plaintiff has put their contents at issue or otherwise waived her privilege. Indeed,
as noted above, even communications that might contradict positions taken by a party do not as a
result lose their privileged status.
Defendants also argue that plaintiff has asserted state and local law claims, and contend
that courts have not “capped” emotional damages under state and local law as they have under
federal law. Docket Entry 70 at 8. Even assuming defendants are correct that state and local law
emotional damage awards may be higher than those sustained under federal law, it is of no
moment for purposes of the pending motion. Waiver depends upon the affirmative, strategic use
of privileged information, not upon a limit on the damages recoverable without relying upon
communications that are privileged.
Defendants further point out that plaintiff testified at her deposition that, because of her
experience working for defendants, she is fearful of obtaining a similar position with a different
employer. Docket Entry 70 at 4. Provided, however, that plaintiff does not seek compensation
for this aspect of her emotional damages, and further does not contend that her fear has impeded
her efforts to mitigate her damages, this testimony does not amount to a tactical partial disclosure
resulting in a forfeiture of the patient-psychotherapist privilege. Indeed, in the sole case on point
cited by defendants, the Court permitted plaintiff to avoid a finding of waiver by “explicitly
disavow[ing] any claim to non-garden-variety emotional injury and expressly agree[ing] not to
offer any privileged information or other evidence regarding his psychiatric condition in support
of his claim.” Jacobs v. Conn. Comm. Tech. Coll., 258 F.R.D. 192, 197 (D. Conn. 2009).
Based upon her statements in connection with the pending cross-motions and during prior
proceedings, it appears plaintiff Weber is prepared to make just such an explicit disavowal here.
To avoid any confusion on the point, however, plaintiff is directed to submit an affidavit

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disavowing any claim to non-garden variety emotional injury, expressly agreeing not to offer any
privileged information or other evidence regarding any psychiatric condition she may have at
trial or in connection with dispositive motion practice, and expressly agreeing not to offer any
evidence at trial or in connection with dispositive motion practice of her claimed fear of taking a
position similar to the one she held while employed by defendants. This ruling is not intended to
limit in any way the evidence defendants may offer at trial or in connection with dispositive
motion practice.
Upon plaintiff’s submission of an affidavit including the terms stated above, her motion
to quash will be granted, defendants’ cross-motion to compel will be denied, the Court will seal
the Memorandum of Law filed by defendants to which plaintiff has objected, and defendants will
file an amended memorandum from which the material identified by plaintiff in her letter dated
December 11, 2014 (not filed on ECF) has been redacted.
SO ORDERED.
/s/
STEVEN M. GOLD
United States Magistrate Judge
Brooklyn, New York
December 23, 2014
U:\smg current docs\Weber 122214 final.docx

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