Michaels v. Youth Services for Oklahoma County Inc
Filing
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ORDER granting 19 Motion to Compel. Additional discovery responses or document production required by this order shall be completed by Plaintiff within 14 days. Signed by Honorable Scott L. Palk on 7/17/2019. (md)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BRITNI MICHAELS,
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Plaintiff,
v.
YOUTH SERVICES FOR
OKLAHOMA COUNTY, INC.
Defendant.
Case No. CIV-18-610-SLP
ORDER
Before the Court is Defendant’s Motion to Compel Plaintiff’s Counseling and
Mental Health Records [Doc. No. 19]. The motion is at issue. See Resp., Doc. No. 26.
I.
Background
Per Plaintiff’s Second Amended Petition, Plaintiff, while a minor, was removed
from her home by the City of Edmond’s police department in September 2015. Plaintiff
was taken to Defendant’s Community Intervention Center, which was a youth-specific 24hour holding facility operated (at the time) by Defendant pursuant to a contract with the
Oklahoma Office of Juvenile Affairs.
While at the Center, Plaintiff was raped by
Defendant’s employee. The employee later pleaded guilty to a criminal charge in state
court. Plaintiff sued Defendant, and Plaintiff’s sole remaining claim against Defendant is
one made pursuant to 42 U.S.C. § 1983.
Plaintiff asserts violations of her due process and equal protection rights via § 1983.
Specifically, Plaintiff alleges that Defendant “[f]ail[ed] to enact and implement adequate
policies concerning sexual harassment, misconduct and abuse of adolescents in its facility,”
“[f]ail[ed] to remove [the employee at fault] from its facility,” “[f]ail[ed] to prevent
adolescents from being alone with [the employee],” “[f]ail[ed] to investigate [the
employee] properly, before and after these referenced allegations,” “[f]ail[ed] to hire, train,
supervise, and retain [the employee] properly,” “[f]ail[ed] to adequately train and supervise
. . . its staff and employees,” and “[e]xhibit[ed] deliberate indifference to the sexual
misconduct directed at Plaintiff.” Second Am. Pet. ¶ 17, Doc. No. 2-13. Plaintiff further
alleges that Defendant had unconstitutional customs or policies of “[f]ailing to investigate
criminal misconduct,” “[d]iscounting the credibility of adolescent[s’] allegations,” and
“[f]ailing to adequately train and supervise employees with regard to the investigation and
reporting of sexual abuse of adolescents.” Id. ¶ 18. Plaintiff alleges that Defendant’s
actions and omissions caused her to “suffer[] severe emotional distress and/or
psychological damage and/or significant pain and suffering and/or personal humiliation.”
Id. ¶ 32. She seeks “[c]ompensatory damages [for her] physical damages as well as [for]
psychological and emotional distress.” Id. ¶ 52(a).
Defendant asks the Court to compel Plaintiff to answer two interrogatories to which
she objected. One interrogatory asked for “[identifying information for] every health care
provider providing an assessment, care, and/or treatment (including state agency) to
[Plaintiff] for any physical injuries, mental anguish, emotional distress, and/or mental
disability allegedly resulting from Defendant’s acts or omissions that are the subject matter
of this litigation.” Def.’s Interrog. No. 7, Doc. No. 19-1. Another interrogatory asked for
the same information, but for the past ten years instead of in relation only to the incident at
issue in this lawsuit. See id. at Interrog. No. 8. As to the latter, broader, interrogatory,
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Defendant only asks the Court to compel identification of “mental health professionals who
have provided medical or counseling services regarding the incident at issue and any
treatment received thereafter.”
Mot. 7, Doc. No. 19.
Plaintiff objects to both
interrogatories based on lack of relevance.
Defendant also seeks Plaintiff’s execution of authorizations for the release of her
health information and records by three mental health care providers identified by Plaintiff
in her deposition, as well as any additional providers identified by Plaintiff in response to
the above-indicated interrogatories. See Email from Jessica Dark to Cameron Spralding
(June 14, 2019, 11:11 AM), Doc. No. 19-3; see also Resp. 2-3, Doc. No. 26 (indicating
that Defendant requested medical authorizations from Plaintiff as part of Defendant’s
Request for Production No. 11).1 Plaintiff again objects based on lack of relevance.2
II.
Relevant discovery standard
Federal Rule of Civil Procedure 26(b)(1) applies to Plaintiff’s motion, and it
provides in relevant part:
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
1
Plaintiff indicates that her response to Defendant’s Request for Production No. 5 is also
at issue. See Resp. 2, Doc. No. 26. But the Court finds no mention of this request in
Defendant’s motion. Nor did Defendant attach this request and Plaintiff’s response thereto
to her motion. Because it does not appear that Defendant has placed Plaintiff’s response
to its fifth request for production at issue in its motion, the Court does not address this
request and Plaintiff’s response thereto.
2
Defendant does not argue that Plaintiff waived any privilege claim she has by failing to
assert the same in her initial responses to Defendant’s discovery requests, and Defendant
addressed the issue of privilege in her motion. The Court therefore does not consider the
issue of waiver based on failure to timely raise the issue of privilege by Plaintiff. Because
both parties have addressed privilege in their briefs, the Court may (and will) address it.
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case, considering 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.
“When requested discovery appears relevant, the party objecting to production has the
burden of establishing the lack of relevance by demonstrating that the request falls outside
the scope set forth in Rule 26(b)(1), or that the requested discovery is of such marginal
relevance that the potential harm occasioned by discovery would outweigh the ordinary
presumption in favor of broad disclosure.” Shotts v. Geico Gen. Ins. Co., No. CIV-161266-R, 2017 WL 4681797, at *1 (W.D. Okla. Oct. 17, 2017) (citation omitted).
III.
Discussion and analysis
Plaintiff makes two arguments in opposition to Defendant’s motion. First, Plaintiff
asserts that Defendant cannot ask the Court to compel additional answers and responses to
the discovery requests at issue because the requests were made by Defendant and
responded to by Plaintiff in state court before this case was removed to this Court. Plaintiff
relies on Local Civil Rule 81.2(c), which states that “[i]n the absence of a contrary
stipulation or court order” (neither of which is in play here), “discovery pending in state
court at the time of removal is considered void.” Plaintiff’s mistake is that there was no
discovery “pending”—i.e., propounded by one party and not yet objected or responded to
by the other party—at the time of removal because Plaintiff had already issued her answers
and responses to Defendant’s requests at the time of removal. L. Cv. R. 81.2(c). The Court
therefore finds this local rule not to be applicable in this scenario. Defendant’s pre-removal
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discovery requests to Plaintiff, as well as Plaintiff’s pre-removal responses thereto, are not
void.3
Second, Plaintiff argues that the information and medical authorizations requested
by Defendant are not relevant to this case because “[a]sserting a claim for pain, suffering
or mental anguish does not inject . . . Plaintiff’s physical or mental condition into the case
or permit Defendant to discover Plaintiff’s medical, counseling and psychological
records.” Resp. 4, Doc. No. 26. Plaintiff continues by asserting that she has not waived
any privileges she has with her health care providers “simply because [she] state[d] a claim
for mental pain, suffering, or anguish associated with Plaintiff’s personal injuries sustained
in the subject incident” because her alleged injuries are based in “[g]eneric claims for
mental anguish or suffering . . . [which] does not exceed that which an ordinary person
would likely experience in similar circumstances.” Id. (emphasis added).
Plaintiff,
however, undersells the extent of her own claimed injuries.
Plaintiff relies primarily on case law addressing privileges in state-court or diversity
cases where state-law causes of action were at issue. See, e.g., Resp. 4-5, Doc. No. 26
(discussing and quoting from Shreck v. N. Am. Van Lines, Inc., No. 05-CV-601-TCK-PJC,
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Under Plaintiff’s interpretation of Local Civil Rule 81.2(c), a party hoping to compel
additional discovery responses or the production of documents in a case like this—where
a substantial amount of litigation occurred in state court prior to removal because Plaintiff
had not yet asserted a claim arising from federal law (thereby giving this Court subjectmatter jurisdiction under 28 U.S.C. § 1331)—would have to re-serve discovery requests
post-removal despite already having the opposing party’s responses or answers to those
same requests from the pre-removal period before it could file a motion to compel. This
approach would be inefficient and would not comport with Rule 1’s goal of a “just, speedy,
and inexpensive determination of every action and proceeding.”
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2006 WL 1720545 (N.D. Okla. Jan. 19, 2006)); id. at 5-6 (same, with reliance on other
federal court cases that involved state-law-based claims and state-law-based privileges).
But Plaintiff’s claim is based in federal law and, “[w]hen a party raises [a] privilege in a
federal question case, the federal common law applies.” Hill v. City of Okla. City, No.
CIV-15-881-C, 2017 WL 2271479, at *1 (W.D. Okla. May 23, 2017); see Dalcour v. City
of Lakewood, No. 08-cv-747-MSK-KLM, 2009 WL 1392079, at *3 (D. Colo. May 15,
2009) (“[W]hen federal law governs the rule of decision, federal common law, as opposed
to state law, governs the existence of privilege.” (addressing a claim of physician-patient
privilege in a § 1983 action)). The Court therefore focuses on the parties’ arguments which
are based in or consistent with the federal common law and federal privilege law.
The U.S. Supreme Court recognized a psychotherapist-patient privilege in Jaffee v.
Redmond, 518 U.S. 1, 15 (1996). The question the Court must answer in this case is
whether Plaintiff has waived her psychotherapist-patient privilege by filing this § 1983
action. The Tenth Circuit does not appear to have spoken as to this issue post-Jaffee. But
U.S. Magistrate Judge Kirtan Khalsa of the District of New Mexico has summarized the
approaches taken on this topic:
Federal courts faced with this issue have developed divergent approaches for
ascertaining whether the privilege has been waived. The so-called “narrow”
approach holds that a patient only waives the privilege by putting the
substance of the advice or communication with their psychotherapist directly
at issue in the suit. Courts employing the “narrow” approach will only find
a waiver of the privilege where the emotional distress claims are “severe,”
where the plaintiff relies on communications with a therapist as part of her
case, or where the plaintiff intends to offer expert testimony on the claim of
emotional distress. On the other side of the spectrum, under the so-called
“broad” approach, courts have held that a plaintiff places her mental
condition at issue and waives the privilege simply by making a claim for
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emotional distress damages. Courts employing the “broad” approach will
find a waiver of the privilege merely from the plaintiff putting her emotional
state at issue in the litigation. There is a final approach, the so-called “middle
ground” approach—which has become the majority view—which holds that
where a plaintiff merely alleges “garden variety” emotional distress and
neither alleges a separate tort for the distress, nor any specific psychiatric
injury or disorder, nor unusually severe distress, that plaintiff has not placed
her mental condition at issue to justify a waiver of the psychotherapist-patient
privilege.
Castillo v. Villa, No. 15-344 SCY/KK, 2016 WL 10592207, at *6 (D.N.M. Jan. 22, 2016)
(quotation marks omitted) (quoting Awalt v. Marketti, 287 F.R.D. 409, 417 (N.D. Ill.
2012)). Although neither party is explicit in doing so, Plaintiff advocates for the middleground approach and Defendant advocates for the broad approach.
To apply the middle-ground approach, a court must define what constitutes “garden
variety emotional distress.”
Id.
As summarized by Judge Khalsa, district courts’
definitions have included:
[T]he distress that any healthy, well-adjusted person would likely feel as a
result of being so victimized; the generalized insult, hurt feelings and
lingering resentment which anyone could be expected to feel given the
defendant’s conduct; the normal distress experienced as a result of the
claimed injury; the negative emotions that plaintiff experienced essentially
as the intrinsic result of the defendant’s alleged conduct, but not the resulting
symptoms or conditions that she might have suffered; the generalized insult,
hurt feelings, and lingering resentment that does not involve a significant
disruption of the plaintiff’s work life and rarely involves more than a
temporary disruption of the claimant’s personal life; the ordinary or
commonplace, simple or usual; those that do not involve psychological
treatment or adversely affect any particular life activities; those where the
plaintiff describes his or her distress in vague or conclusory terms, but does
not describe their severity or consequences; or those that involve the general
pain and suffering and emotional distress one feels at the time of the
complained-of conduct, but not any ongoing emotional distress.
Id. at *7 (quoting Flowers v. Owens, 274 F.R.D. 218, 225-26 (N.D. Ill. 2011)).
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The Court need not choose between the broad and the middle-ground approaches to
waiver because Plaintiff has waived her privilege under either standard. Waiver occurs
under the broad approach when a party “mak[es] a claim for emotional distress damages”
and under the middle-ground approach when a party “alleges . . . unusually severe
distress.” Castillo, 2016 WL 10592207, at *6. Here, Plaintiff alleges that Defendant’s
conduct “shocks the conscience” and that Defendant’s actions and omissions caused her
“severe emotional distress and/or psychological damage and/or significant pain and
suffering and/or personal humiliation” for which she seeks to recover in her § 1983 claim.
Second Am. Pet. ¶ 32, Doc. No. 2-13 (emphasis added). She has alleged more severe
emotional distress than simply regular pain and suffering.
Plaintiff’s allegations thus satisfy either standard urged by the parties, and Plaintiff
has waived the psychotherapy-patient privilege. See Castillo, 2016 WL 10592207, at *7
(“extreme emotional distress” not “garden variety emotional distress”); see also West v.
Burch, No. CIV-03-1019-T, 2005 WL 8157531, at *2 (W.D. Okla. May 4, 2005) (finding
that the psychotherapist-patient privilege was waived by a plaintiff who “placed her mental
state at issue by alleging that defendants [in a § 1983 case] caused her to suffer severe
emotional distress”); cf. Jackson v. Chubb Corp., 193 F.R.D. 216, 225 n.8 (D.N.J. 2008)
(“[One of] the most common way[s] for a plaintiff to place his/her mental or emotional
condition at issue is to . . . seek damages for severe emotional distress.” (collecting cases)).
Indeed, Plaintiff’s allegation in her Second Amended Petition arguably satisfies the
“narrow” approach to wavier as well, which “find[s] a waiver of the privilege where the
emotional distress claims are ‘severe.’” Castillo, 2016 WL 10592207, at *6.
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Having found that Plaintiff has waived any applicable psychotherapy privilege, the
Court must still determine whether the information and documents requested by
Defendants are relevant. The Court finds that the information called for by Defendant’s
Interrogatory No. 7 is relevant—i.e., “health care provider[s] providing an assessment,
care, and/or treatment . . . for any physical injuries, mental anguish, emotional distress,
and/or mental disability allegedly resulting from Defendant’s acts or omissions that are the
subject matter of this litigation.” Def.’s Interrog. No. 7, Doc. No. 19-1. As stated in
Defendant’s request, the information that Defendant seeks plainly relates to the subject of
this lawsuit and Plaintiff’s claim arising therefrom.4
The Court likewise finds that the information called for by Defendant’s
Interrogatory No. 8 is relevant to the extent it is sought in Defendant’s motion—i.e., “health
care provider[s] providing an assessment, care, and/or treatment . . . for any physical
injuries, mental anguish, emotional distress, and/or mental disability” (id. at Interrog. No.
8) “subsequent to the incident.” Mot. 6, Doc. No. 19. Defendant does not seek, and the
Court does not rule on, the relevancy of identification of or documents requested from any
persons who provided care to Plaintiff prior to September 3, 2015.
Finally, the Court finds that Plaintiff should be required to execute medical
authorization as to records for the same time period addressed supra. See Mirtes v. Norfolk
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Notably, as to at least one of Plaintiff’s counselors, she responded in the affirmative when
asked whether she was seeing her “because of the [incident at issue in this lawsuit].” Pl.
Dep. 43:17, Doc. No. 19-2. Such information is plainly and facially relevant.
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S. Ry., No. 3:05CV7216, 2005 WL 3527292, at *1 (N.D. Ohio Dec. 22, 2005) (collecting
cases).
The Court finds no indication that Defendant seeks—as Plaintiff posits it does—to
“subject[ Plaintiff] to a gauntlet of pretrial medical and psychological probings.” Resp. 89, Doc. No. 26. Rather, the instant motion only addresses responses to two interrogatories
and execution of medical authorizations by Plaintiff, not any hypothetical to-be-conducted
medical or psychological procedures or evaluations.
IV.
Conclusion
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel Plaintiff’s
Counseling and Mental Health Records [Doc. No. 19] is GRANTED as set forth herein.
Additional discovery responses or document production required by this order shall be
completed by Plaintiff within 14 days.
IT IS SO ORDERED this 17th day of July, 2019.
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