Shelley et al v. Interfor U.S. Inc.
Order on Request for Discovery. For the reasons stated in this Order, the defendant's oral request for discovery of plaintiffs' medical and counseling records is denied. Please access entire text by document number hyperlink. Signed on 01/10/2017 by Magistrate Judge Mark D. Clarke. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEVEN CHARLTON, and
Case No. 1: 16-cv-O 1415-CL
INTERFOR U.S. INC., d/b/a
Interfor Pacific Inc.
CLARKE, Magistrate Judge
The plaintiffs allege federal claims for gender discrimination and retaliation, as well as
state-law gender discrimination, retaliation, whistlcblower, injured worker, and negligence
claims, against the defendant. At a status conference held on January 10, 2017, the defendant
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made an oral request for discovery of the plaintiffs' medical and counseling records. For the
reasons discussed below, the request is denied.
In their complaint [ECF No. 1.], the plaintiffs indicated that they will seek emotional
distress damages. Consequently, the defendant made an oral request for discovery of the
plaintiffs' medical and counseling records. The plaintiffs object to the discovery of such
material; they indicate that they have not sought medical treatment for their emotional distress
and do not intend to introduce medical records or expert testimony to support their emotional
distress claims. Hence, they argue, they have not put their mental health at issue and any such
medical records arc shielded by the psychotherapist-patient and/or physician-patient privileges.
By contrast, the defendant asserts the plaintiffs waived any privileges by alleging damages for
emotional distress; such allegations, the defendant contends, necessarily put the plaintiffs'
mental conditions at issue.
Because this case involves both federal- and state-law claims, "the federal law of
privilege applies to both the state and federal claims.'' 1 Fitzgerald v. Cassi!, 216 F.R.D. 632, 635
(N.D. Cal. 2003). 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. 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
In support of their argument that the plaintiffs have waived psychotherapist-patient and/or physicianpatient privileges, the defendants cite to Hansen v. Combined Transp., Inc., No. I: 13-CY-O 1993-CL, 2014 WL
1873484 (D. Or. May 8, 2014). That case dealt exclusively with state-law privileges and is therefore inapposite.
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records or medical expert testimony for proof at trial," the psychotherapist-patient privilege
and/or the physician-patient privilege are not waived, and the plaintiffs medical records remain
shielded by such privileges. Equal Emp 't Opportunity Comm 'n v. Wal-Mart Stores, Inc., 276
F.R.D. 637, 640 (E.D. Wash. 2011). Rather, it is when the plaintiff relics on the testimony of a
psychotherapist or physician, or claims specific disability or medical conditions resulting from
the defendant's conduct, that the privileges arc waived. Kinnee, 2008 WL 1995458, at* 5.
Applying the narrow approach to the present case, the Court agrees with the plaintiffs and
denies the defendant's oral discovery request. Here, the plaintiffs have made a garden-variety
claim for emotional distress damages, stating simply that, "[a]s a result of Defendant's unlawful
employment actions, Plaintiffs suffered and continue to suffer emotional distress." Comp!.
Fm1hermore, the plaintiffs have stated that they do not intend to introduce medical records or
expert testimony to support their emotional distress claims. Accordingly, the plaintiffs have not
waived the psychotherapist-patient or the physician-patient privileges, and the defendant's
request to compel medical and counseling records is denied. If, however, during the course of
discovery, the defendant discovers a basis for concluding that particularized mental or physical
health issues arc at issue and arc central to the plaintiffs' legal theories, including theories for
damages, then the defendant may reapply to the Court for an order compelling production of
medical and/or counseling records.
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For the foregoing reasons, the defendant's oral request for discovery of the plaintiffs'
medical and counseling records is denied.
It is so ORDERED and DATED this _ _ _ _ day of January, 2017.
United States Magistrate Judge
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