Wilson v. Decibels of Oregon, Inc. et al
ORDER: The plaintiff has waived his physician-patient and psychotherapist-patient privileges, and the plaintiff's treatment records pertaining to his mental or emotional health dating back five years are discoverable. Additionally, the Court finds the plaintiff's personnel files from past employers to be relevant and thus discoverable. Signed on 01/26/2017 by Magistrate Judge Mark D. Clarke. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 1:16-cv-00855-CL
DECIBELS OF OREGON,
INC., and DENNIS
CLARKE, Magistrate Judge
The plaintiff alleges violations of state and federal minimum wage and overtime laws.
The plaintiffs minimum wage and overtime claims are brought pursuant to the Fair Labor
Standards Act and related Oregon state statutes. In addition to these claims, the plaintiff brings a
claim for unlawful employment discrimination and wrongful deduction of ·wages; these claims
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are brought exclusively under Oregon law. The defendants seek the written reports and notations
of the plaintiff's primary health care provider addressing the plaintiff's medical history dating
back five years. In addition, the defendants request personnel files from the plaintiffs past
employers. For the reasons discussed below, the requests are granted. 1
In his First Amended Complaint [ECF No. 13.], the plaintiff contends he "is entitled to
recover non-economic damages for the garden variety emotional distress, humiliation, and loss
of enjoyment of life" resulting from the defendants' unlawful employment discrimination. The
plaintiff's claim for "garden variety emotional distress" goes only to his claim of unlawful
employment discrimination under Oregon law; the plaintiff does not seek emotional distress
damages for the defendants' alleged violations of federal law.
Because the plaintiff requests emotional distress damages, the defendants seek the
plaintiff's primary health care provider's reports and notations on the plaintiff's medical history
dating back five years. The plaintiff objects to the discovery of such material; he indicates he
does not intend to introduce medical records or expert testimony to support his emotional distress
claim. Hence, the plaintiff argues, he has not put his mental or physical health at issue and any
such medical records are shielded by the psychotherapist-patient and/or physician-patient
privileges. By contrast, the defendants assert the plaintiff waived any privileges by alleging
damages for emotional distress; such allegations, the defendants contend, necessarily put the
plaintiffs mental conditions at issue.
011 January 19, 2017, the Court held a status conference in an attempt to resolve this matter informally.
The parties, however, disagreed on the applicable law. As will be discussed, after reviewing the current parameters
of the law, both state and foderal, the Court finds the sought-after medical records and personnel files to be
discoverable, with discussed limitations.
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In addition to medical records, the defendants intend to issue subpoenas to the plaintiff's
past employers seeking the plaintiffs personnel files. The plaintiff believes these files are
irrelevant and therefore objects.
Because this case involves both federal- and state-law claims, the issue is whether the
federal law of privilege or state law of privilege applies. The federal law of privilege in this area
is not settled, but many district courts in the Ninth Circuit, including this Court, apply what has
been termed the narrow approach to waiver. See Kinnee v. Shack, Inc., Civ. No. 07-1463-AC,
2008 WL 1995458, at *5 (D. Or. May 6, 2008) (stating that the plaintiff did not waive the
psychotherapist-patient or the physician-patient privileges "by her general allegation of
emotional distress"). Under this theory, when a plaintiff makes a claim for garden-variety
emotional distress damages, "without relying on medical records or medical expert testimony for
proof at trial," the psychotherapist-patient privilege and/or the physician-patient privilege are not
waived, and the plaintiff's medical records remain shielded by such privileges. Equal Emp '/
Opportunity Comm 'n v. Wal-.Mart Stores, Inc., 276 F.R.D. 637, 640 (E.D. Wash. 2011). Rather,
it is when the plaintiff relies on the testimony of a psychotherapist or physician, or claims
specific disability or medical conditions resulting from the defendant's conduct, that the
privileges are waived. Kinnee, 2008 WL 1995458, at *5.
By contrast, in Oregon, which also protects confidential physician-patient and
psychotherapist-patient communications, see ORS § 40.235 and ORS § 40.230, a plaintiff
waives these privileges if he places his psychological condition into question by claiming
emotional distress damages; Oregon makes no garden-variety distinction. See Baker v. English,
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134 Or. App. 43, 46-4 7 (1995) aff'd in part, rev 'd in part, 324 Or. 585 (1997) ("There is no
dispute that [plaintiffs] records, as they pertained to plaintiff himself, were not privileged,
because plaintiff put his own psychological condition into question by claiming emotional
distress damages"); see also Or.R.Civ.P. 44(c) ("In a civil action where a claim is made for
damages for injuries to the party ... , upon the request of the [opposing] party, the claimant shall
deliver ... a copy of all written reports and existing notations of any examinations relating to
injuries for which recovery is sought. ... ").
Here, the state Jaw of privilege applies. Federal Rule of Evidence 501 specifically states
that "in a civil case, state law governs privilege regarding a claim or defense for which state faw
supplies the rule of decision." See also Platypus Wear, Inc. v. K.D. Co., Inc., 905 F. Supp. 808,
812 (S.D. Cal. 1995) (state privilege law applies to claims "arising under state law ... where the
evidence sought can be relevant only to state law claims ...."). As stated, the plaintifI's claim
for "garden variety emotional distress" goes only to his claim of unlawful employment
discrimination under Oregon law, and the plaintiff docs not seek emotional distress damages for
the defendants' alleged violations of federal law. Thus, because the plaintiffs employment
discrimination claim arises only under state lmv, Oregon privilege law applies.
Applying Oregon's approach to the present case, the Court finds that the plaintiff has
waived his physician-patient and psychotherapist-patient privileges. As discussed, in Oregon, a
plaintiff ·who puts his own psychological condition into question by claiming emotional distress
damages waives such privileges; this is true even in cases where the plaintiff's emotional distress
damages are garden variety, or in cases where the plaintiff does not intend to introduce medical
records or expert testimony to support their emotional distress claims. Accordingly, the
plaintiff's treatment records dating back five years are discoverable. The Court notes, however,
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that nothing in the plaintiff's First Amended Complaint indicates that he has put his physical
health at issue in this case; therefore, discovery is limited to medical records pertaining to his
mental or emotional health. See Hansen v. Combined Tram.p., Inc., No. 1:13-CV-01993-CL,
2014 WL 1873484, at *3 (D. Or. May 8, 2014) (limiting discovery of medical records to mental
or emotional health where the plaintiff has not put his physical health at issue).
The defendants intend to issue subpoenas to the plaintiff's past employers seeking the
plaintiff's personnel files. The plaintiff believes these files are irrelevant and thus objects. Under
the Federal Rl.llcs of Civil Procedure, a party is entitled to "obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense .... " Fcd.R.Civ.P. 26(b)(l).
"Relevancy is construed broadly to encompass any matter that bears on, or that reasonably could
lead to other matters that could bear on any issue that is or may be in the case." Amini Innovation
Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Cal. 2014) (internal
quotations and citations omitted).
The plaintiff's past personnel files arc relevant. Plaintiff is suing his former employer,
alleging, among other things, that his former employer wrongfully terminated him for protected
conduct. See First Am. Compl.
56. The defendants deny this allegation. Thus, information
contained in the plaintiffs past personnel files could certainly lead to matters that bear on the
issue of termination and whether it was justified; for instance, past personnel files may
corroborate the defendant's stated rationale for the plaintiff's termination, or may corroborate
any future defense for the defendants' decision to terminate the plaintiff. Such matters, then, are
plainly within Rule 26's purview and arc therefore discoverable.
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For the foregoing reasons, the plaintiff has waived his physician-patient and
psychotherapist-patient privileges, and the pJaintifI's treatment records pertaining to his mental
or emotional health dating back five years are discoverable. Additionally, the Court finds the
plaintiffs personnel files from past employers to be relevant and thus discoverable.
the aforementioned January 19, 2017, status conference, the plaintiff indicated that, in order to preserve
the record, he may wish to formally file a motion to quash subpoenas related to his medical history and/or personnel
files. This Order does not limit the plaintiff's right to do so.
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