Bose v. Bea et al

Filing 106

ORDER denying 75 Motion to Compel; denying 86 Motion to Compel. Signed by Magistrate Judge Tu M. Pham on 10/6/2017. (Pham, Tu)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

PRIANKA BOSE,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
RHODES COLLEGE and ROBERTO DE
LA SALUD BEA,
Defendants.

16-cv-02308-JTF-tmp

ORDER DENYING MOTIONS TO COMPEL

Before the court by order of reference are two motions to
compel.
Roberto

(ECF
de

la

No.

93.)

Salud

Bea

Defendants

Rhodes

(collectively

Motion to Compel on July 6, 2017.

College

“Rhodes”)

and

filed

(ECF No. 75.)

their

Plaintiff

Prianka Bose (“Bose”) filed a response on July 19, 2017.
No. 80.)

Dr.

(ECF

Rhodes filed a reply on July 26, 2017, and Bose filed

a sur-reply on August 2, 2017.

(ECF Nos. 84, 94.)

her own Motion to Compel on July 27, 2017.
Rhodes filed a response on August 1, 2017.

Bose filed

(ECF No. 86.)

(ECF No. 88.)

On

August 31, 2017, the court conducted a hearing on both motions.
(ECF No. 101.)

Subsequently, on September 6, 2017, the court

conducted a telephonic conference to address additional issues
relating

to

Rhodes’s

Motion

to

Compel.

The

court

directed

Rhodes

to

submit

for

in

camera

review

Bose’s

mental

health

records.
For the following reasons, the court DENIES both motions.
I.

BACKGROUND

According to Bose, this suit stems from a collection of
encounters

that

Bose

had

with

Dr.

Roberto

de

la

Salud

Bea

beginning in July of 2015 and lasting until November of 2015.
(ECF No. 1 at 2.)

In 2015, Bose attended Dr. Bea’s Organic

Chemistry I course in the spring and took his Organic Chemistry
II course in the fall.

(Id.)

After the spring semester, Bose

alleges that Dr. Bea breached the professional nature of their
relationship by giving her special assistance that he did not
provide to other students, asking her personal questions about
her family and her boyfriend, and inviting her to dinner.
at 2–3.)
behavior

Bose states that she “confronted” Dr. Bea about this
on

November

19,

2015,

asking

him

strictly professional relationship with her.”
alleges

(Id.

that,

shortly

after

this

to

“maintain

(Id. at 4.)

confrontation,

Dr.

a

She
Bea

retaliated against her by making it appear that she had cheated
on various exams and quizzes in his Organic Chemistry II class.
(Id.)

As a consequence of Dr. Bea’s accusations of cheating,

Rhodes expelled her.

(Id. at 6.)

According to Rhodes and Dr. Bea, this suit is a result of
Bose trying to avoid punishment for cheating.

-2-

(ECF No. 84 at

4.)

They deny that Dr. Bea ever behaved in an unprofessional

manner.

(ECF No. 53 at 3.)

“under enormous

Rather, they posit that Bose was

pressure (academic, personal, and otherwise)”

and, as a result, she cheated, got caught, and then fabricated
the encounters with Dr. Bea in an attempt to avoid expulsion.
(ECF No. 84 at 4.)
Bose filed the present suit against Rhodes College and Dr.
Bea

on

May

6, 2016.

(ECF

No.

1

at

1–2.)

Bose

initially

asserted claims against Rhodes College for violating Title IX
and Title VII, breach of contract, tortious interference with
business relations, negligent failure to train or supervise, and
violations of the Tennessee Consumer Protection Act.
at 7–17.)

(ECF No. 1

She initially asserted claims against Dr. Bea for

defamation, intentional infliction of emotional distress, and
tortious interference with business relations.

(Id. at 17–18.)

Bose also sought a temporary restraining order and a permanent
injunction.
denied

(Id. at 14, No. 2.)

Bose’s

motion

for

a

Following a hearing, the court

temporary

restraining

order

and

permanent injunction on October 25, 2016.

(ECF No. 51.)

The

court

the

and

granted

Rhodes’s

motion

to

dismiss

defamation claims on October 26, 2016.
Bose’s

own

motion,

the

court

also

Title

VII

(ECF No. 52.)

dismissed

the

intentional

infliction of emotional distress claim on August 31, 2017.
No. 102.)

-3-

Upon

(ECF

The discovery disputes giving rise to the two motions to
compel stem from two sets of interrogatories.

Rhodes’s Motion

to Compel originates from Bose’s refusal on May 22, 2017, to
respond

to

the

following

interrogatories

and

requests

for

information about her medical history:
INTERROGATORY NO. 13: Identify by name, current
address and telephone number any and all physicians or
other
health
care
providers,
psychologists,
psychiatrists, therapists, counselors, social workers,
or other mental health professionals from whom
Plaintiff
has
sought
treatment
or
advice
for
emotional, physical, or psychological issues in the
last (6) years, including, but not limited to, any
illness or condition that Plaintiff contends was
caused or exacerbated by the actions of Defendants.
For each such individual, describe the nature of the
advice or treatment provided and the dates of such
advice or treatment.
REQUEST NO. 12: All documents or other tangible
evidence relating to or concerning treatment provided
to Plaintiff for any physical, mental or emotional
problem in the last six (6) years, including medical
records or other medical reports, correspondence,
notes, test results, office notes or records, claim
forms,
psychological
tests,
vocational
studies,
prescriptions or any other record depicting or
evidencing treatment, diagnosis, consultation or any
other services rendered by any health care provider,
psychiatrist,
psychologist,
therapist,
counselor,
social worker or any other mental health professional
or health care provider.
REQUEST NO. 21: Please execute the attached HIPPA
Authorization
for
Release
of
Protected
Health
Information attached as Exhibit 1 hereto.
(ECF No. 75 at 2–3.)
on

the

grounds

reasonably

that

calculated

Bose refused to provide this information
the
to

requests
lead

-4-

to

were

overly

discovery

broad
of

and

not

admissible

evidence.

(Id.)

In a discovery deficiency letter sent on June

2, 2017, Rhodes took the position that a plaintiff who seeks
damages

for

intentional

“automatically
condition.”

places

infliction

in

of

controversy

(ECF No. 75-2 at 2.)

emotional

a

distress

plaintiff’s

mental

In reply, Bose informed

Rhodes she would be dismissing the intentional infliction of
emotional

distress

claim

and

emotional distress damages.

seeking

only

“garden

(ECF No. 75-3.)

variety”

Dissatisfied with

this response, on July 6, 2017, Rhodes filed a motion to compel
a response to the interrogatories and requests.
Rhodes argues that it
because

Bose

has

a

(ECF No. 75.)

should have access to the information
documented

history

of

providing

false

information to Rhodes Campus Safety and because Bose placed her
mental state at issue by seeking damages for emotional distress.
(Id. at 4–6, No. 84 at 3–4.)

Bose has since disclosed that she

received treatment from the Rhodes Student Counseling Center;
however, she maintains that she has not put her mental state at
issue

and

that

it

would

violate

her

psychotherapist-patient

privilege if the court compelled her to disclose any information
relating to her treatment.
After

a

telephonic

(ECF Nos. 80, 94, 96.)
conference

on

the

matter,

the

court

ordered production of records from Bose’s counseling sessions at
Rhodes for in camera review.
records

reveal

that

Bose

(ECF No. 104.)
received

-5-

Bose’s treatment

treatment

during

three

different periods, first from a licensed clinical social worker
(January 25, 2013 to May 1, 2014), then from a Master of Science
counseling

intern

supervised

by

a

licensed

clinical

social

worker (February 13, 2015 to April 30, 2015), and last from a
Master of Science psychology intern supervised by a licensed
psychologist
supervisors

(October

26,

co-signed

2015

to

of

the

all

December
treatment

session that Bose had with these interns.
Bose’s

sessions

indicating
recorded
periods

that

were
the

sessions
during

recorded,
supervisors

with

which

the

she

the
were

interns.

received

10,

notes

The

for

each

To the extent that

records

contain

required
For

2015).1

to

each

treatment,

of

Bose

a

form

review
the

any

three

signed

an

informed consent form indicating that her discussions with her
treatment provider were confidential.

These informed consent

forms provided in part as follows:
Welcome to the Rhodes Student Counseling Center.
We provide short-term, individual counseling to all
Rhodes students free of charge. Students may meet for
individual therapy up to eight times per semester.
Please notify the Counseling Center in a timely
fashion when you are unable to attend counseling
sessions so that we may make that time available to
other students.
A pattern of missed appointments
without notification may result in termination of
services.
The
Counseling
Center
also
offers
psychiatric evaluation and treatment for students who
wish to meet with Dr. Taylor Williams regarding
medication prescriptions.
Students meeting with Dr.
1

These dates reflect the time periods when Bose had scheduled
treatment sessions; however, they do not necessarily demonstrate
whether she attended those sessions.
-6-

Williams will be billed through their Rhodes College
student account for her services.
When you meet with a therapist for the first
time, the therapist will ask you about your reasons
for coming to the Counseling Center and will develop a
plan with you to meet your goals for counseling.
Whatever you discuss with your treatment provider
is confidential. The Counseling Center staff does not
share information about students 16 years or older
with parents, other students, or any College faculty
or staff. Client information is reviewed in clinical
supervision with other Counseling Center treatment
providers to insure that we provide the highest
quality of service possible. There may be times when
you want the therapist to speak on your behalf to your
parents or with a representative of the College. When
this is the case, you will need to sign a release
allowing your therapist to speak with that person.
There are several circumstances where a therapist
or
psychiatrist
is
required
by
law
to
share
confidential information.
When a student tells the
therapist or psychiatrist about someone under the age
of 18 who is being subjected to abuse or neglect, we
are required to notify the Tennessee Department of
Children’s Services.
If you inform us about a
dependent elder who is being abused or neglected, we
are required to notify Adult Protective Services.
When a student is determined by the therapist or
psychiatrist to be at imminent risk of killing
himself/herself, or of killing someone else, we will
share
confidential
information
consistent
with
applicable laws to prevent or lessen that imminent
threat. We may also disclose confidential information
in the course of any judicial or administrative
proceeding, in response to an order of a court or
administrative tribunal (to the extent that such
disclosure
is
expressly
authorized),
in
certain
conditions in response to a subpoena, discovery
request or other lawful process. Under the Clery Act,
therapists and psychiatrists at universities and
colleges are required by law to provide statistics on
sexual assault to the State Division of Health
Statistics, but NO identifying information is included
in that information. If you have any questions about

-7-

any aspect of confidentiality regarding your medical
records, please ask your therapist.
When you meet with a therapist, he or she will
open an electronic Counseling Center file which will
contain information regarding your conversations with
the therapist and the issues you wish to address.
This file is confidential.
The information in the
file does not become part of a student’s academic
record, and the same rules that apply to conversations
with your therapist will apply to the file . . . .
Bose’s records also show that she signed three different
Consent and Authorization to Release Information forms.

Two of

those forms authorized temporary and limited disclosure of her
treatment
professors.

session

attendance

records

to

certain

Rhodes

The third form authorized temporary and limited

disclosure of her “initial evaluation” and her “recommendations
and coordination of care” to Ike Solas of Campus Safety.
release

specifically

excluded

progress

notes,

This

diagnoses,

and

treatment notes, and it expired on November 15, 2014.
Bose’s
respond

to

Motion
the

to

Compel

following

stems

from

interrogatory

Rhodes’s
about

refusal

Rhodes’s

to

case

preparation, which Bose served on June 9, 2017:
Interrogatory No. 1: State the name, address, and
telephone number of each individual who provided
information to respond to these Interrogatories and/or
who assisted in the preparation of your responses to
these
Interrogatories,
and
identify
which
Interrogatories each individual provided information
in response to and/or assisted in answering.
(ECF No. 86 at 2, No. 86-3.)
information

on

the

grounds

Rhodes declined to provide this
that

-8-

it

was

protected

by

the

attorney-client privilege and work-product doctrine.

(Id.)

In

a discovery deficiency letter sent on July 25, 2017, Bose argued
that the identities of the individuals who aided in answering
interrogatories

were

not

privileged

but

rather

material fact.

(ECF No. 86-2 at 1; No. 88-2.)

amounted

to

In response,

Rhodes pointed out that the 45-day deadline to file a motion to
compel a response to this interrogatory — July 24, 2017 — had
already passed.

(ECF No. 86-3.)

On July 27, 2017, Bose filed a

motion to compel Rhodes to respond to this interrogatory.
No. 86.)

(ECF

In addition to disputing the timeliness of the motion,

Rhodes maintains that the work-product doctrine protects it from
having to disclose the identities of those who helped respond to
Bose’s interrogatories.

(ECF No. 88 at 3–4.)
II.

ANALYSIS

As this case is before the court on the basis of federal
question jurisdiction, the court will “apply the federal law of
privilege.”

Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir.

1992); Pravak v. Meyer Eye Grp., PLC, No. 2:07-2433-MlV, 2009 WL
10664851, at *4 (W.D. Tenn. Oct. 22, 2009) (applying the federal
law of privilege in a case based on both federal question and
diversity jurisdiction).

Accordingly, the court will apply the

federal psychotherapist-patient privilege and the federal workproduct doctrine.
A.

Disclosure of Bose’s Mental Health Treatment

-9-

1.

The Reach of the Psychotherapist-Patient Privilege

The

Supreme

Court,

while

acknowledging

“the

primary

assumption that there is a general duty to give what testimony
one

is

capable

of

giving,”

has

found

that

the

“privilege

protecting confidential communications between a psychotherapist
and her patient ‘promotes sufficiently important interests to
outweigh the need for probative evidence . . . .’”

Jaffee v.

Redmond,

States

518

U.S.

1,

9–10

(1996)

(quoting

United

v.

Bryan, 339 U.S. 323, 331 (1950); Trammel v. United States, 445
U.S. 40, 51 (1980)).
to

include

The Supreme Court extended the privilege

communications

psychologists,

and

social

made

to

licensed

workers.

Id.

at

psychiatrists,

15–16.

It

also

observed that “like other testimonial privileges, the patient
may

of

course

communications.

waive

the

protection”

Id. at 15 n.14.

by

disclosing

the

It left to the lower courts

the tasks of shaping the “full contours” and “defin[ing] the
details” of the psychotherapist-patient privilege.

Id. at 18.

It is beyond dispute that the privilege protects Bose’s
sessions with the licensed clinical social worker.
518 U.S. at 15–17.

See Jaffee

Thus, all of Bose’s communications with the

licensed clinical social worker are privileged. With regard to
Bose’s communications with the
interns,

there

whether

the

is

little

two

supervised, graduate-level

consensus

psychotherapist-patient

-10-

among

the

privilege

courts

as

extends

to
to

unlicensed mental health treatment providers.

Some find the

privilege only covers licensed providers, see United States v.
Wynn, 827 F.3d 778, 787 (8th Cir. 2016); United States v. Romo,
413

F.3d

1044,

1046–47

(9th

Cir.

2005);

Jane

Student

1

v.

Williams, 206 F.R.D. 306, 309–10 (S.D. Ala. 2002), while others
have

concluded

that

it

includes

unlicensed

providers,

see

Oleszko v. State Comp. Ins. Fund, 243 F.3d 1154, 1157–58 (9th
Cir. 2001); Richardson v. Sexual Assault/Spouse Abuse Res. Ctr.,
Inc., 764 F. Supp. 2d 736, 740 (D. Md. 2011); United States v.
Lowe, 948 F. Supp. 97, 99–100 (D. Mass. 1996).
oppose

applying

treatment
between

the

providers

unlicensed

privilege
emphasize

and

to

that

licensed

unlicensed
Jaffee

treatment

drew

Courts that
mental
a

health

clear

providers.

line

United

States v. Durham, 93 F. Supp. 3d 1291, 1295 (W.D. Okla. 2015).
They

further

mental

explain

health”

protected

that

when

demonstrated

some

a

that
gives

the

public

rise

to

mental

health

threshold

level

interest
the

“promoting

privilege

treatment
of

in

ability

is

only

provider

“has

to

assist

the

patient in improving her mental health” by obtaining a license.
Jane Student 1, 206 F.R.D. at 309.
For the reasons discussed below, this court is persuaded
that

the

psychotherapist-patient

privilege

may

extend

beyond

licensed mental health treatment providers and, based upon the

-11-

facts in this case, covers Bose’s communications with the two
supervised, graduate-level interns.
To begin, given that the Supreme Court specified that the
district courts would be tasked with shaping the privilege, the
court is unconvinced that Jaffee established a bright line rule
requiring treatment providers to be licensed.

518 U.S. at 18.

Instead, the court finds that the rationale of Jaffee supports
extending the privilege to cover Bose’s communications with the
two unlicensed, graduate-level interns who were supervised by
licensed mental health treatment providers.

The Supreme Court

created the privilege in order to protect a relationship that
can only flourish if the legal system recognizes and respects
its

“imperative

need

for

confidence

(quoting Trammel, 445 U.S. at 51).

and

trust.”

Id.

at

10

“Effective psychotherapy . .

. depends upon an atmosphere of confidence and trust in which
the patient is willing to make a frank and complete disclosure
of facts, emotions, memories, and fears.”

Id.

Patients will be

far less likely to trust a treatment provider to the extent
necessary

for

effective

treatment

if

they

information they share will be used against them.
This

court

exists

believes

regardless

licensed

mental

of

that

the

whether

health

need
a

treatment

-12-

for

patient

believe

Id. at 10–12.

confidence
is

provider

and

speaking

or

the

an

trust

with

a

unlicensed,

graduate-level intern who is supervised by a licensed treatment
provider.
Furthermore, the two unlicensed interns who treated Bose
provided the type of care that Jaffee sought to protect.
Court

explained,

public

interest

“[t]he
by

psychotherapist

facilitating

the

privilege

provision

of

As the

serves

the

appropriate

treatment for individuals suffering the effects of a mental or
emotional problem.”

Id. at 11.

Here, the treatment notes for

the two interns demonstrate that their work was supervised by
licensed treatment providers who co-signed all treatment notes
and apparently were required to review any recorded treatment
sessions with the interns.
level

training

therapist

in

Further, the interns had graduate-

psychology

relationship

and

and

type

of

counseling.
treatment

Thus,

that

the

these

two

supervised, graduate-level interns provided to Bose mirrors the
therapist relationship and type of treatment that Jaffee set out
to preserve.
In addition, part of the reason the privilege should cover
these communications is because Bose reasonably believed her
treatment would be kept confidential.

A patient’s reasonable

belief about the confidentiality of a communication is a valid
consideration when determining if the privilege should apply.
See United States v. Hayes, 227 F.3d 578, 587 (6th Cir. 2000)
(noting it would be “grossly unfair” to

-13-

deem

communications

between

a

patient

and

unlicensed

treatment

provider

not

privileged where the patient had no reason to believe that the
communications were unprotected); United States v. Landor, 699
F. Supp. 2d 913, 925 (E.D. Ky. 2009) (same).

In this case, the

circumstances of Bose’s treatment indicate it was reasonable for
her to believe that all of her communications over the course of
her treatment would be treated as confidential, regardless of
who treated her.

At the start of each of her treatment periods,

Bose signed informed consent forms.

These forms reassured her

that both her treatment sessions and her treatment file would
remain confidential.

These forms made no distinction between

sessions with unlicensed treatment providers and sessions with
licensed ones.

Thus, it was reasonable for Bose to believe that

all of her communications would remain confidential.
In

sum,

the

court

finds

that,

based

on

the

court’s

application of Jaffee to the documents reviewed in camera, the
psychotherapist-patient

privilege

applies

to

all

of

the

of

the

treatment Bose received at Rhodes.2
2.

Waiver of the Psychotherapist-Patient Privilege

Rhodes

argues

that,

despite

the

application

privilege, it is entitled to access Bose’s mental health records

2

The issue of whether the privilege applies to communications
between patients and unsupervised, unlicensed mental health
treatment providers is not before the court. Therefore, the
court does not reach this issue.
-14-

because

Bose’s

overcomes

the

purported
privilege

history

and

of

because

making

she

has

false
put

reports

her

mental

condition at issue by seeking emotional distress damages.

As to

Rhodes’s first point, the Supreme Court has dismissed this exact
argument.

In Jaffee, the Supreme Court expressly rejected a

privilege

balancing

test

utilized

by

the

Seventh

Circuit,

finding that “[m]aking the promise of confidentiality contingent
upon a trial judge's later evaluation of the relative importance
of the patient's interest in privacy and the evidentiary need
for

disclosure

privilege.”

would

eviscerate

the

effectiveness

of

the

518 U.S. at 17. Thus, any history Bose may have for

making false reports does not render her psychotherapist-patient
privilege waived.3
With respect to Rhodes’s second point, Bose has not waived
the privilege by placing her mental state at issue.

In the

process of defining the contours of the privilege, courts have
developed

“three

divergent

approaches”

to

determining

if

a

plaintiff has waived the psychotherapist-patient privilege by
“plac[ing]

his

psychological

condition

at

issue.”

Burke

v.

Lawrence, No. 1:11-CV-1044, 2013 WL 2422883, at *2 (W.D. Mich.
The case Rhodes has cited to support its argument, Altman v. New
Rochelle Public School District, is unpersuasive because it
stands for a different proposition than the one Rhodes suggests.
No. 13 CIV. 3253 (NSR), 2017 WL 66326, at *8–10 (S.D.N.Y. Jan.
6, 2017) (holding that evidence of a party’s litigious character
was inadmissible to show modus operandi since the evidence was
overly prejudicial).
3

-15-

June 3, 2013).

First, there is the broad approach, where a

court finds a patient has waived her or his privilege when the
patient simply “claims damages for emotional distress.”
v.

Sanders,

914

F.

(citations omitted).

Supp.

2d

864,

867–69

(E.D.

Griffin

Mich.

2012)

Then, there is the narrow approach, where

a court finds a waiver of the privilege if the patient “puts a
confidential communication expressly at issue as part of her
case” such as when “the cause of action relies on advice or
findings

of

the

psychotherapist.”

Gray

v.

Romero,

No.

113CV01473DADGSAPC, 2016 WL 6821855, at *3–4 (E.D. Cal. Nov. 17,
2016) (citations omitted).

Finally, there is the middle-ground

approach where a court finds waiver if a party seeks more than
“garden variety emotional distress damages.”

See Santifer v.

Inergy Auto. Sys., LLC, No. 5:15-CV-11486, 2016 WL 1305221, at
*2–3 (E.D. Mich. Apr. 4, 2016) (collecting cases).
Under the middle-ground approach, courts have identified
five occasions when a party claiming the privilege has asserted
more than garden variety emotional distress, thereby waiving the
privilege:
(1) a tort claim is asserted for intentional
infliction or negligent infliction of emotional
distress; (2) an allegation of a specific mental or
psychiatric injury or disorder is made; (3) a claim of
unusually severe emotional distress is made; (4)
plaintiff intends to offer expert testimony in support
of a claim for emotional distress damages; and/or (5)
plaintiff concedes that her mental health condition is
in controversy within the meaning of Rule 35.

-16-

Santifer, 2016 WL 1305221, at *3 (quoting Stevenson v. Stanley
Bostitch, Inc., 201 F.R.D. 551, 554 (N.D. Ga. 2001)); Pliego v.
Hayes, 86 F. Supp. 3d 678, 691 (W.D. Ky. 2015)(listing the first
four occasions); Langenfeld v. Armstrong World Indus., Inc., 299
F.R.D. 547, 552 (S.D. Ohio 2014) (listing all five occasions);
Johnson v. Peake, 273 F.R.D. 411, 412 (W.D. Tenn. 2009) (listing
all five occasions).
The

court

appropriate

finds

test

that

because

the
it

middle-ground
takes

into

approach

account

is

both

the
the

patient’s privacy interests as well as circumstances in which a
party in fairness should be allowed to access the patient’s
mental health information.4

At the start of this case, Rhodes

had reason to argue that two of the five occasions that trigger
waiver under the middle-ground approach were present.

However,

Bose has since dismissed the intentional infliction of emotional
distress claim.

Therefore, the only remaining basis for the

During the phone conference on September 6, 2017, Rhodes argued
that the court should not apply the garden variety approach
because it has never been recognized by the Sixth Circuit and
runs contrary to the holding in Maday v. Public Libraries of
Saginaw, 480 F.3d 815 (6th Cir. 2007).
It is true that the
Sixth Circuit has not addressed the application of the middleground approach.
However, with regard to Maday, that holding
does not govern the outcome of this case because in Maday, the
plaintiff put her mental state expressly at issue by introducing
excerpts from her mental health records to support her emotional
distress claim.
Id. at 820–21.
Unlike in Maday, Bose has
expressly stated that she will not use her mental health
information in this case.
4

-17-

waiver

of

the

privilege

would

“a

claim

of

unusually

severe

emotional distress.”
Rhodes argued in its briefs, during the motion hearing, and
during

the

phone

conference

that

Bose’s

claims

of

distress are especially severe and even “lurid.”
101, 104.)

emotional

(ECF Nos. 84,

During the phone conference on September 6, 2017,

Rhodes suggested that if this court reviewed the transcript from
a preliminary injunction hearing on June 7, 2016, the court
would hear in Bose’s testimony proof that her allegations of
emotional distress are more than garden variety.

(ECF No. 104.)

At Rhodes’s suggestion, the court has reviewed all of Bose’s
testimony from the two-day preliminary injunction hearing that
began on June 7, 2016, and finished on June 27, 2016.
40,

44.)

Contrary

testimony,

the

court

to

Rhodes’s

has

found

(ECF Nos.

characterization

no

indication

of

from

the

Bose’s

testimony or her motions that she is claiming anything beyond
garden

variety

testified

her

emotional

distress.

interactions

with

At
Dr.

the

hearings,

Bea

made

uncomfortable, intimidated, and at times afraid.
35, 42, 50, 51, 92, 110, 148.)

her

Bose
feel

(ECF No. 40 at

Bose’s statement that she is

seeking damages for personal embarrassment is consistent with
the general nature of her emotional distress claims.
80 at 3–5.)
distress

are

(ECF No.

These types of generalized allegations of emotional
insufficient

to

put

-18-

a

party’s

mental

state

at

issue.

See Ferrari v. Ford Motor Co., No. 13-CV-14857, 2014 WL

12550552,

at

*2

(E.D.

Mich.

Oct.

27,

2014)

(finding

that

allegations of “emotional distress, outrage, and humiliation”
were “garden-variety”); Johnson, 273 F.R.D. at 413 (finding that
allegations of “deep pain, humiliation, anxiety, and emotional
distress” were garden variety); cf. Langenfeld, 299 F.R.D. at
553 (finding emotional distress claims exceeded garden variety
where “Plaintiff testified in her deposition that Defendant’s
conduct caused her to suffer stress and sleep deprivation that
is

still

ongoing”).

Thus,

Bose

has

not

waived

her

psychotherapist-patient privilege by pursuing emotional distress
damages.
The

court

further

finds

that

Bose

did

not

waive

the

psychotherapist-patient privilege by signing three Consent and
Authorization
waive

the

Release

Information

psychotherapist-patient

voluntarily
substance

to

relinquishing

of

therapy

it,

forms.

privilege

such

sessions

to

as

“A
by

by

unrelated

patient

may

knowingly

and

disclosing
third

the

parties.”

United States v. Kokoski, 435 F. App’x. 472, 476–77 (6th. Cir.
2011) (citing Hayes, 227 F.3d at 586).
Bose

signed

attendance

to

authorized
Rhodes

releasing

professors

and

Two of the forms that
information

one

about

authorized

her

releasing

information about her initial evaluation and recommendations and
coordination

of

care

to

Ike

Solas

-19-

of

Campus

Safety.

The

disclosures that Bose allowed the counseling center to make to
Rhodes professors did not amount to waiver because evidence that
a patient is receiving treatment is not privileged.
Zuniga, 714 F.2d 632, 640 (6th Cir. 1983).

The disclosure to

Ike Solas of Campus Safety was not a waiver.
limited

to

her

initial

evaluation

and

See In re

The release was

recommendations

and

coordination of care; it excluded any progress notes, diagnoses,
and treatment notes; and it expired on November 15, 2014.
on

the

record

narrow
before

parameters
the

of

court,

the
it

disclosure
does

not

and

the

appear

Based
current

that

any

confidential information was disclosed.

Accordingly, the court

finds

psychotherapist-patient

that

Bose

did

not

waive

the

privilege by disclosing information about her treatment sessions
to third parties.5

Thus, the court denies Rhodes’s Motion to

Compel disclosure of this information.
3.

Relevance of Unprivileged Information Sought

5

The court notes that the Informed Consent forms, which Bose
signed at the start of her three treatment periods, identified
“several circumstances where a therapist or psychiatrist is
required by law to share confidential information.”
However,
the court finds that none of the circumstances apply to this
case.
The court reads the provision that Rhodes “may also
disclose confidential information in the course of any judicial
or administrative proceeding” to be limited to instances where
Rhodes is required by law to disclose this information such as
“in response to an order of a court.”
Otherwise, an
interpretation of this language that would permit Rhodes to
disclose a student’s mental health information any time Rhodes
is involved in litigation would be wholly inconsistent with the
purpose of the consent form and Jaffee.
-20-

There is some information Rhodes seeks that is not covered
by the psychotherapist-patient privilege but is nonetheless not
discoverable.
health

The

treatment

possibly,

the

specific

at

dates

Rhodes

contact

when

Student

information

Bose

received

Counseling

and

treatment providers are not privileged.

mental

Center

identities

of

and,
Bose’s

See Zuniga, 714 F.2d at

640 (noting that the identities of patients and the dates of the
treatment were not privileged); Langenfeld, 299 F.R.D. at 551–52
(noting that the identities of patients and providers and the
dates

of

treatment

were

not

privileged).

However,

this

information must still be “relevant to any party’s claim or
defense” and not unreasonably cumulative or duplicative.
R.

Civ.

P.

26(b)(1)–(2).

It

is

unclear

how

the

names

Fed.
and

contact information of Bose’s mental health care providers at
Rhodes Student Counseling Center would be relevant, particularly
in

light

of

the

fact

that

this

order

prohibits

Rhodes

from

obtaining further information from the providers about Bose’s
treatment.

As for the dates of treatment, Bose has already

disclosed to Rhodes all of the time periods during which she
received

treatment

from

its

counseling

center,

discovery on this point would be redundant.

so

further

Thus, the court

denies Rhodes’s Motion to Compel disclosure of this information.
For these reasons, the court denies Rhodes’s Motion to Compel in
its entirety.

-21-

B.

Disclosure of Persons Responsible for Interrogatory Answers
As an initial matter, Bose acknowledges that her Motion to

Compel is untimely.
filing

when

neglect.”

“the

Courts have the discretion to accept a late
party

Fed.

R.

failed

Civ.

P.

to

act

6(b).

because
The

of

excusable

excusable-neglect

determination requires balancing the following five factors: (1)
prejudice to opposing party, (2) length of delay, (3) cause of
delay, (4) if the late-filing party had control of delay, and
(5) absence of good faith.

Nafziger v. McDermott Int'l, Inc.,

467 F.3d 514, 522 (6th Cir. 2006)(citation omitted).

Here,

there is no evidence that Rhodes was prejudiced by the delayed
filing,

which

was

only

three

days

late.

The

cause

was

an

apparent misunderstanding by Bose while the parties were working
toward agreed extensions of various deadlines in the scheduling
order.

And, although Bose could have avoided the delay, she

acted in good faith.

Thus, the court will address merits of the

motion.
The information that Bose seeks in her Motion to Compel,
identification

of

the

persons

who

aided

Rhodes

in

answering

interrogatories, is protected by the work-product doctrine and
not discoverable.

The Supreme Court adopted the work-product

doctrine in Hickman v. Taylor.

329 U.S. 495, 507–511 (1947).

After recognizing that “[m]utual knowledge of all the relevant
facts

gathered

by

both

parties

-22-

is

essential

to

proper

litigation,” the Supreme Court found that “it is essential that
a

lawyer

work

with

a

certain

degree

of

privacy,

free

from

unnecessary intrusion by opposing parties and their counsel.”
Id. at 507.
intangible”

Thus, the Supreme Court found that “tangible and
evidence

of

how

an

attorney

“sift[s]

what

he

considers to be the relevant from irrelevant facts” fell into
the privileged category of work product.

Id. at 511–12.

There are two different types of work product.
v. United States, 449 U.S. 383, 401 (1981).
opinion

work

impressions,
theories.”

product,
opinions,

involves

“an

conclusions,

Upjohn Co.

The first type,

attorney’s

judgments,

mental

or

legal

In re Antitrust Grand Jury, 805 F.2d 155, 163 (6th

Cir. 1986) (citations omitted).

The Sixth Circuit has found

that “absent waiver, a party may not obtain the ‘opinion’ work
product of his adversary.”

In re Columbia/HCA Healthcare Corp.

Billing Practices Litig., 293 F.3d 289, 294, 304–305 (6th Cir.
2002) (quoting Antitrust Grand Jury, 805 F.2d 155 at 163–64).
The second type, fact work product, consists of “all other work
product.”

See Restatement (Third) of the Law Governing Lawyers

§ 87; see also Upjohn, 449 U.S. at 400.

Attorneys may obtain

discovery of another party’s fact work product “upon a showing
of

substantial

need

and

inability

to

evidence] without material hardship.”
Corp.,

293

F.3d

at

294

(citing

-23-

otherwise

obtain

[the

Columbia/HCA Healthcare

Toledo

Edison

Co.

v.

G.A.

Technologies, Inc., 847 F.2d 335, 339–40 (6th Cir. 1988)).
addition, regardless
product

doctrine

disclosure.
In

In

of the type of work product, the work-

does

not

protect

underlying

facts

from

identify

the

Upjohn, 449 U.S. at 395.

this

case,

Bose’s

request

that

Rhodes

persons who helped answer interrogatories is tantamount to a
request
Whether

for

a

the

list

of

individuals

identification

of

whom

the

Rhodes

persons

interviewed.

whom

a

party

interviewed when preparing for litigation is an underlying fact
or protected work product is a source of extensive debate.

See

generally United States v. All Assets Held at Bank Julius Baer &
Co.,

Ltd.,

(D.D.C.

No.

Sept.

CV

04-798

13,

2017)

(PLF/GMH),

2017

(collecting

WL

4075154,

cases).

at

Although

*3
the

question is a close one, the court finds that the identification
of

the

product.

persons

whom

a

party

interviewed

is

protected

work

See id.; Hammett v. Am. Queen Steamboat Operating Co.,

LLC, No. 14-CV-2540-SHL-TMP, 2015 WL 12805697, at *4 (W.D. Tenn.
July 17, 2015) (“[A] party seeking the identities of individuals
interviewed

by

opposing

counsel

.

.

.

raises

work

product

concerns.”).
As discussed above, attorneys can obtain work product in
certain limited circumstances, but none of those circumstances
are present in this case.

There is no evidence that Rhodes

waived the work-product privilege in any way.

-24-

See Columbia/HCA

Healthcare Corp., 293 F.3d at 294.

Nor has Bose demonstrated

significant need and undue hardship.

Upjohn, 449 U.S. at 400.

Thus, this court concludes that all of the information that Bose
requests

in

her

Motion

to

Compel

is

product doctrine and not discoverable.

protected

by

the

work-

For these reasons, the

court denies Bose’s Motion to Compel.
III. CONCLUSION
For the reasons set forth above,

the court

DENIES both

parties’ Motions to Compel.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
October 6, 2017
Date

-25-