Dekany v. City of Akron, Ohio et al
Order granting in part and denying in part Defendant Paull's Motion for protective order (Related Doc # 30 ); resolving the objections to the R&R prepared by the Magistrate Judge. Please see order for specific details. Judge John R. Adams on 1/9/17.(L,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-vsCITY OF AKRON, et al.,
) CASE NO. 5:16CV1829
) JUDGE JOHN R. ADAMS
On November 23, 2016, Defendant Eric Paull sought a protective order from this Court.
Specifically, Paull sought to prevent discovery of his medical records and his mental health care
records. On that same day, this Court referred the matter to Magistrate Judge Burke for a report
and recommendation. Plaintiff Alexis Dekany opposed the motion on November 29, 2016, and
Paull replied on December 5, 2016. On December 7, 2016, the Magistrate Judge issued a Report
and Recommendation, opining that the motion should be granted in part and denied in part.
Paull objected to the Report, and the Court now resolves those objections.
With respect to Paull’s medical records, the Report concluded that a protective order
should issue with respect to Paull’s non-psychological medical records.
Dekany did not
challenge that aspect of the Report. Accordingly, that portion of the Report is ADOPTED and a
protective order shall issue preventing discovery of Paull’s non-psychological records.
With respect to his psychological records, Paull contends that the Report erred when it
concluded that he had waived any privilege attached to those records. With respect to these type
of records, the Supreme Court has noted: “Because we agree with the judgment of the state
legislatures and the Advisory Committee that a psychotherapist-patient privilege will serve a
“public good transcending the normally predominant principle of utilizing all rational means for
ascertaining truth,” Trammel, 445 U.S., at 50, 100 S.Ct., at 912, we hold 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
Jaffee v. Redmond, 518 U.S. 1, 15 (1996).
A patient may waive the
psychotherapist—patient privilege by knowingly and voluntarily relinquishing it, such as by
disclosing the substance of therapy sessions to unrelated third parties. United States v. Hayes,
227 F.3d 578, 586 (6th Cir.2000). The burden rests on the person invoking the privilege to
demonstrate its applicability, including the absence of any waiver of it.” United States v.
Bolander, 722 F.3d 199, 222 (4th Cir. 2013). In addition to recognizing the privilege, the Sixth
Circuit has held that “the identity of a patient or the fact and time of his treatment does not fall
within the scope of the psychotherapist-patient privilege.” In re Zuniga, 714 F.2d 632, 640 (6th
Paull relies heavily on Zuniga and its logic in support of his objection. Specifically, Paull
contends that he did nothing more than disclose the fact that he was in treatment and did not
disclose the substance of his therapy sessions. In addition, Paull notes that a district court in the
District of Columbia has previously found no waiver when a patient “identified her mental health
diagnoses and described to the Court what medications she was taking and the impact those
medications had on her emotional and cognitive abilities.” United States v. Babarinde, 126 F.
Supp. 3d 22, 25 (D.D.C. 2015).
Upon review, this Court finds that Paull has not met his burden to demonstrate the
absence of a waiver. In her affidavit, Dekany swears that “Paull discussed his mental health and
counseling” with her during their relationship. Dekany’s statement is bolstered by text messages
sent to her by Paull. Within those messages, Dekany asked Paul what his therapist had told him
to do during a prior session. Paull responded: “Concentrated on my gun and depression and
staying safe this week.” Doc. 36-2 at 3. Paull continued: “We did talk a lot about things to
work on irritability anger and depression.” Doc. 36-2 at 3. Paull also texted Dekany: “It was ok
… talked about anger management and control issues she wants me to log my anger incidents
and all kinda  stuff about them for the week.” Doc. 36-2 at 8. In another text, Paull wrote:
“Can you talk I want to share this paper I wrote for my counselor.” Doc. 36-2 at 11. While
arguing that he had not disclosed the substance of his sessions, Paull wholly ignores all of the
evidence to the contrary presented in the above communications. Those messages demonstrate
time and again that Paull openly discussed the specific communications that occurred during his
sessions with a third party, Alexis Dekany. Accordingly, Paull has fallen well short of his
burden to demonstrate the absence of a waiver of the privilege. The Report made no error when
it found waiver of the privilege.
Paull, however, also contends that the Report should have found that his mental health
records were beyond the scope of discovery. The Court finds no merit in this contention. It is
clear from the pleadings and the case management conference that Paull’s mental health records
could lead to the discovery of admissible evidence. Those records may ultimately be used to
rebut affirmative defenses and it is conceivable that they may bolster claims against the other
defendants in this matter. In any event, they are well within the broad scope of discovery
permitted by the civil rules.
Finally, Paull contends that the Report erred when it did not place a temporal limitation in
the records at issue.
In that respect, the Court agrees.
Paull’s waiver is tied to his
communications with Dekany about his counseling at or around the time of their relationship.
Accordingly, only those records that were created from the inception of their relationship to the
current date are subject to the waiver. As such, the Report is modified to allow for discovery of
all of Paull’s psychological records from August of 2012 to the present.
Dekany shall forthwith re-issue her discovery requests with this limitation in mind. The
motion for a protective order is GRANTED IN PART AND DENIED IN PART as detailed in
the Report and herein.
IT IS SO ORDERED.
Dated: January 9, 2017
/s/ John R. Adams_______________
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE
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