Charalambopoulos v. Grammer
Filing
214
Unsealed, redacted version of #211 Sealed MEMORANDUM OPINION AND ORDER granting in part and denying in part #105 and #111 and ordering in camera inspection. (Ordered by Judge Sidney A Fitzwater on 3/22/2017) (Judge Sidney A Fitzwater)
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DIMITRI CHARALAMBOPOULOS,
§
§
Plaintiff-counterdefendant, §
§
VS.
§
§
CAMILLE GRAMMER,
§
§
Defendant-counterplaintiff. §
Civil Action No. 3:14-CV-2424-D
*This memorandum opinion and order was filed under seal
on March 8, 2017. This unsealed version contains
redactions to which both parties have agreed.
MEMORANDUM OPINION
AND ORDER
Plaintiff-counterdefendant Dimitri Charalambopoulos (“Charalambopoulos”) moves
to compel discovery pertaining to defendant-counterplaintiff Camille Grammer’s
(“Grammer’s”) treating psychiatrist, and Grammer moves for sanctions based on
Charalambopoulos’ initially filing the motion to compel and attached exhibits as public
documents. For the reasons that follow, the court grants in part and denies in part both
motions, and in part orders an in camera inspection.
I
This case is the subject of several prior memorandum opinions and orders. See, e.g.,
Charalambopoulos v. Grammer, 2017 WL 606639 (N.D. Tex. Feb. 15, 2017) (Fitzwater, J.);
Charalambopoulos v. Grammer, 2015 WL 2451182 (N.D. Tex. May 22, 2015) (Fitzwater,
J.); Charalambopoulos v. Grammer, 2015 WL 390664 (N.D. Tex. Jan. 29, 2015) (Fitzwater,
J.). The court will therefore pretermit a general discussion of the background facts and
procedural history and will discuss the matters that are pertinent to the motions it is now
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deciding.
Charalambopoulos brings defamation and related claims against Grammer, alleging,
inter alia, that Grammer falsely and publicly accused him of physically abusing and
assaulting her on October 16, 2013 (the “Alleged Assault”). Grammer asserts counterclaims
against Charalambopoulos for assault, battery, and defamation per se.
Grammer has designated her treating psychiatrist, Bethany J. Tucker, M.D. (“Dr.
Tucker”), as a combined fact/non-retained rebuttal expert who
may offer expert testimony in rebuttal to the expert testimony
offered by Ms. Joanna Collins and/or Dr. Amy Gruszecki
regarding their opinions that Charalambopoulos did not assault
Grammer, that Grammer gave inconsistent descriptions of the
assault, and intimations that Grammer was being untruthful . . . .
Dr. Tucker may also offer expert testimony regarding medical
implications of what Grammer told Dr. Tucker following the
October 16, 2013 assault; that Grammer’s statements about the
October 16, 2013 assault have been consistent in description,
believability, and truthfulness; that Grammer’s actions following
the incident on October 16, 2013 are consistent with someone
who had recently been assaulted; and the reasons someone in
Grammer’s situation may choose to seek a restraining order
following an assault.
P. 4/29/16 App. 3-4. Dr. Tucker has treated Grammer since 2005.
In response to Charalambopoulos’ discovery requests, Grammer produced Dr.
Tucker’s treatment and billing records that cover therapy sessions dated June 13, 2011 (the
first session during the month when Grammer and Charalambopoulos met) through January
14, 2016. Grammer has not produced any treatment or billing records that predate June 13,
2011; Grammer has redacted portions of Dr. Tucker’s treatment records from sessions dated
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September 27, 2015, September 29, 2015, and January 13, 2016; and during Dr. Tucker’s
April 6, 2016 deposition, she declined to answer questions relating to her treatment of
Grammer prior to June 13, 2011.
Charalambopoulos now moves to compel Grammer and Dr. Tucker to produce the
following: all treatment notes and records related to Grammer from 2005 to the present; all
documents related to Grammer’s becoming a patient; correspondence between Dr. Tucker
and any individual representing Grammer; and the information redacted from the treatment
notes Grammer produced. Charalambopoulos requests that the court order Dr. Tucker to
answer questions regarding the information that Grammer’s counsel redacted from Dr.
Tucker’s session notes and regarding Grammer’s treatment prior to June 2011.
Charalambopoulos did not initially file his motion to compel or attached exhibits under seal.
Grammer opposes the motion to compel. She also separately moves for sanctions,
contending that Charalambopoulos’ failure to file the motion to compel and attachments
under seal violated the September 3, 2015 protective order (“Protective Order”) entered in
this case, and resulted in conferring access to Grammer’s confidential mental health
information to various media outlets, causing her damages.
II
The court begins with Charalambopoulos’ motion to compel.
A
Charalambopoulos moves the court to compel Grammer and Dr. Tucker to produce
the following: all treatment notes and records related to Grammer from 2005 to the present;
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all documents related to Grammer’s becoming a patient, including, but not limited, to patient
questionnaires and patient medical history forms; any correspondence between Dr. Tucker
and any individual representing Grammer; and the information redacted from the treatment
notes Grammer produced. Charalambopoulos also moves the court to require Dr. Tucker to
answer Charalambopoulos’ questions regarding the information that Grammer’s counsel
redacted from her session notes, and to answer questions regarding Grammer’s treatment
prior to June 2011. He contends that Grammer’s counsel has obstructed his efforts to
discover Dr. Tucker’s entire treatment of psychiatric symptoms regarding Grammer, and that
Dr. Tucker’s treatment of Grammer prior to the Alleged Assault is relevant because it shows
that the symptoms on which Dr. Tucker relied to diagnose Grammer with Post Traumatic
Stress Disorder (“PTSD”) as a result of the Alleged Assault were present before October 16,
2013.
Grammer responds that, under Texas and California law,1 information relating to
Grammer’s treatment by Dr. Tucker is privileged, and because she only seeks damages for
past pain and suffering (i.e., her claim for bodily injuries as a result of the Alleged
Assault)—not for mental anguish—her mental health information prior to June 2011 (the
month when Grammer and Charalambopoulos met) is irrelevant, and the narrowly-construed
patient-litigant exception does not apply.
Grammer contends that, to the extent
Charalambopoulos seeks discovery regarding her prior mental health condition to prove
1
Grammer contends that the information relating to her treatment is privileged under
both Texas and California law, and a full choice-of-law analysis is therefore unnecessary.
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overlapping symptoms with some of the symptoms Dr. Tucker relied on in diagnosing
Grammer’s PTSD after the Alleged Assault, “a defensive assertion such as this does not
make the mental health condition a part of a party’s claim or defense so as to waive the
privilege.” D. 5/20/16 Br. 9. She maintains that Dr. Tucker has been retained primarily as
a fact witness—not a retained expert witness—who may also be qualified to express opinions
based on her knowledge, skill, experience, training, or education2—and that Grammer’s
decision to make this designation does not require Dr. Tucker to disclose more than six years
of privileged information. Finally, Grammer posits that the equities weigh in favor of not
permitting further discovery from Dr. Tucker. Regarding Charalambopoulos’ motion to
compel discovery of the redacted portions of Dr. Tucker’s treatment notes, Grammer
contends that the redacted portions of the September 27, 2015 and September 29, 2015
session notes pertain to communications between Dr. Tucker and one of Grammer’s
attorneys for the purpose of ensuring that the legal advice contemplated by Grammer’s
counsel would not be harmful to Grammer’s mental health, and are privileged. She maintains
that the redacted portions of the session notes from January 13, 2016 pertain solely to a
separate legal matter, wholly unrelated to this lawsuit, and are privileged and irrelevant.
2
Grammer contends that she designated Dr. Tucker to offer rebuttal testimony to
Charalambopoulos’ experts’ opinions that Charalambopoulos did not assault Grammer, that
Grammer gave inconsistent descriptions of the assault, and that Grammer was being
untruthful. She also designated Dr. Tucker to offer rebuttal testimony regarding the nature
of certain of Grammer’s romantic relationships, the medical implications of what Grammer
told Dr. Tucker after the Alleged Assault, the reasons a person might seek a restraining order
after an assault, and her opinion that Grammer’s actions were consistent with those of
someone who had been the object of family violence.
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Finally, Grammer contends that Charalambopoulos’ request for communications between Dr.
Tucker and any individual representing Grammer is overbroad and calls for privileged
communications.
Charalambopoulos argues in his reply that, by designating Dr. Tucker as a nonretained rebuttal expert to testify concerning her PTSD diagnosis of Grammer, her opinion
related to Grammer’s truthfulness, and her opinion related to whether the Alleged Assault
occurred, Grammer has waived any psychiatrist-patient privilege, and that “Grammer is not
permitted to use portions of privileged information as a ‘sword’ to gain evidence in support
of her defense and then use the psychiatrist-patient privilege as a ‘shield’ to protect
information [Charalambopoulos] is legally entitled to use during cross examination of Dr.
Tucker.” P. 6/7/16 Reply 4 (citation omitted). Regarding the redacted portions of Dr.
Tucker’s records and Grammer’s attorneys’ conversations with Dr. Tucker,
Charalambopoulos argues that this information is not privileged and is relevant because the
communications can be used to show bias.
B
The court considers first whether Charalambopoulos’ motion to compel should be
granted to the extent he seeks discovery relating to Dr. Tucker’s treatment of Grammer prior
to June 2011.
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1
The Texas Rules of Evidence3 recognize a “physician-patient” privilege and a
“mental-health-information privilege.” Tex. R. Evid. 509(c) provides:
[i]n a civil case, a patient has a privilege to refuse to disclose
and to prevent any other person from disclosing: (1) a
confidential communication between a physician and the patient
that relates to or was made in connection with any professional
services the physician rendered the patient; and (2) a record of
the patient’s identity, diagnosis, evaluation, or treatment created
or maintained by a physician.
Similarly, Rule 510(b) provides:
[i]n a civil case, a patient has a privilege to refuse to disclose
and to prevent any other person from disclosing: (A) a
confidential communication between the patient and a
professional; and (B) a record of the patient’s identity,
diagnosis, evaluation, or treatment that is created or maintained
by a professional.4
Although Grammer’s communications with, and treatment records maintained by, Dr. Tucker
appear generally to fall within the protective scope of Rules 509(b) and 510(b), the court
3
Fed. R. Evid. 501 provides that, “in a civil case, state law governs privilege regarding
a claim or defense for which state law supplies the rule of decision.” Charalambopoulos and
Grammer appear to agree that California or Texas law governs Grammer’s claim of privilege
in this case, and that the court need not engage in a choice-of-law analysis because the
outcome is the same under California or Texas law. Because Charalambopoulos and
Grammer appear to agree that the outcome is the same under Texas or California law, the
court in this memorandum opinion and order will rely primarily on Texas law.
4
California law recognizes a similar privilege, providing, in Cal. Evid. Code § 1014,
that a patient “whether or not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between patient and
psychotherapist[.]”
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must determine whether Grammer’s actions in this litigation have waived the privilege.
2
In the analogous context of the attorney-client privilege, courts generally recognize
that a privilege cannot be used simultaneously as both a sword and a shield. See, e.g., Willy
v. Admin. Review Bd., 423 F.3d 483, 497 (5th Cir. 2005) (stating that under doctrine of
implied waiver, “a party may not use privileged information both offensively and defensively
at the same time”); Nguyen v. Excel Corp., 197 F.3d 200, 207 n.18 (5th Cir.1999) (“In accord
with this principle is a client’s inability to, at once, employ the privilege as both a sword and
a shield . . . . Attempts at such improper dual usage of the privilege result in waiver by
implication.”); see also Valero Energy Corp. v. M.W. Kellogg Constr. Co., 866 S.W.2d 252,
255 (Tex. App. 1993, writ denied) (“Texas law will not permit a party to raise a claim or
defense in a lawsuit, then attempt to stave off discovery related to that allegation through the
use of privilege.”). “In other words, when a party entitled to claim [a] privilege uses
confidential information against his adversary (the sword), he implicitly waives its use
protectively (the shield) under that privilege.” Willy, 423 F.3d at 497.
The principle is often expressed in terms of preventing a party
from using the privilege as both a shield and a sword. In
practical terms, this means that parties in litigation may not
abuse the privilege by asserting claims the opposing party
cannot adequately dispute unless it has access to the privileged
materials. The party asserting the claim is said to have
implicitly waived the privilege.
Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003) (citations omitted). Thus a privilege
“may implicitly be waived when [a] defendant asserts a claim that in fairness requires
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examination of protected communications.” United States v. Bilzerian, 926 F.2d 1285, 1292
(2d Cir. 1991).
3
Grammer asserts counterclaims for assault and battery under Texas law, and alleges
truth as a defense to Charalambopoulos’ claims for defamation and defamation per se. To
prevail on these claims and defenses at trial, Grammer will have to persuade the jury that her
version of the Alleged Assault is true. Grammer apparently seeks to do this in part by
offering Dr. Tucker’s testimony to rebut the opinions of Charalambopoulos’ experts that
Charalambopoulos did not assault Grammer, and that impeach Grammer’s version of what
occurred during the Alleged Assault. Dr. Tucker testified at her deposition that she had
diagnosed Grammer with acute PTSD after the Alleged Assault, based, inter alia, on
Grammer’s exhibiting symptoms of insomnia, anxiety, and eating issues. Charalambopoulos
maintains that the symptoms on which Dr. Tucker relied to diagnose Grammer with PTSD
had been diagnosed by Dr. Tucker years before the Alleged Assault; he seeks to obtain
evidence to this effect to use at trial to impeach Dr. Tucker’s PTSD diagnosis.
The court holds that Charalambopoulos is entitled to discover whether Dr. Tucker has
previously (i.e., at any point prior to June 2011) diagnosed Grammer with the same
symptoms on which Dr. Tucker relied to conclude, after the Alleged Assault, that Grammer
suffered from acute PTSD. To permit Grammer to corroborate her claims regarding the
Alleged Assault by relying on Dr. Tucker’s diagnosis of acute PTSD, but then to deny
Charalambopoulos access to treatment records that might reveal that Grammer had
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previously exhibited some of the same symptoms in a context completely unrelated to the
Alleged Assault, would impermissibly enable Grammer to use the mental-health-information
privilege as both a sword and a shield.
Accordingly, the court concludes that
Charalambopoulos is entitled to obtain discovery regarding whether Dr. Tucker had
previously (i.e., prior to June 2011) treated Grammer for symptoms of insomnia, anxiety, or
eating issues. Grammer must produce these materials within 28 days of the date this
memorandum opinion and order is filed.
Charalambopoulos is not entitled, however, to all treatment notes and records related
to Grammer from 2005 to the present, all documents related to Grammer’s becoming a
patient, or an order requiring Dr. Tucker to answer questions regarding Grammer’s treatment
prior to June 2011, as Charalambopoulos requests in his motion. Setting aside the question
whether Grammer’s reliance on and disclosure of some of her mental health information
resulted in a complete waiver of the privilege—Charalambopoulos contends that it
does—Grammer has established5 that her treatment by Dr. Tucker from 2005 through the
date when she met Charalambopoulos is not relevant to any claim or defense in this case
5
In the Fifth Circuit, “a party who opposes its opponent’s request for production
[must] ‘show specifically how . . . each [request] is not relevant.’” Merrill v. Waffle House,
Inc., 227 F.R.D. 475, 477 (N.D. Tex. 2005) (Lynn, J.) (quoting McLeod, Alexander, Powel
& Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)); see also Orchestratehr, Inc.
v. Trombetta, 178 F.Supp.3d 476, 506 (N.D. Tex. 2016) (Horan, J.) (“[T]he amendments to
Rule 26(b) and Rule 26(c)(1) do not alter the basic allocation of the burden on the party
resisting discovery to—in order to successfully resist a motion to compel—specifically object
and show that the requested discovery does not fall within Rule 26(b)(1)’s scope of relevance
(as now amended) or that a discovery request would impose an undue burden or expense or
is otherwise objectionable.” (citations omitted)).
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other than as discussed above (i.e., Dr. Tucker’s prior treatment of Grammer for symptoms
of insomnia, anxiety, or eating issues). Under Fed. R. Civ. P. 26(b)(1), a party
may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the
needs of the 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.
Rule 26(c) authorizes the court, for good cause shown, to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.
Although Grammer initially pleaded a counterclaim for intentional infliction of
emotional distress (“IIED”) and sought damages for past and future mental anguish, she no
longer asserts an IIED claim or prays for mental anguish damages.6 She argues in her
response that she
seeks damages only for past pain and suffering related to the
assault. Grammer’s assault and battery claims allege that she
suffered “injuries resulting in pain and suffering,” and her
battery claim specifies that “Grammer sustained bodily injuries
resulting in bruises, abrasions, scrapes, and swelling to
Grammer’s head, face, arms, and wrists.” Notably, Grammer
previously withdrew any claims for mental anguish as a result
of the alleged assault. Grammer’s mental health information
prior to June 2011 is not relevant, and certainly not directly
relevant, to Grammer’s claim for past pain and suffering she
suffered as a result of the assault.
6
In her third amended counterclaims, Grammer seeks the following damages: actual
and consequential damages resulting from past pain and suffering; nominal damages;
exemplary damages; court costs; and all other relief to which she may be entitled.
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D. 5/20/16 Br. 6 (citation omitted). The court holds that, other than Dr. Tucker’s prior
treatment of symptoms similar to those she relied on to diagnose Grammer with PTSD, Dr.
Tucker’s pre-June 2011 treatment of Grammer for mental health issues wholly unrelated to
Charalambopoulos or the events at issue in this case is neither relevant nor proportional to
the needs of the case considering the factors enumerated in Rule 26(b)(1). Accordingly,
Charalambopoulos is not entitled to wholesale discovery of all of Grammer’s mental health
records from her treatment by Dr. Tucker prior to June 2011. Rather, the motion to compel
is granted only to the extent that Charalambopoulos seeks to discover whether, at any time
prior to June 2011, Dr. Tucker treated Grammer for symptoms of insomnia, anxiety, or eating
issues.
C
The court next considers Charalambopoulos’ motion to compel Grammer to
disclose the information redacted from certain of Dr. Tucker’s treatment notes and to require
Dr. Tucker to testify regarding the redacted information.
1
Grammer contends that the redacted portions of session notes on September 27, 2015
and September 29, 2015 pertain to communications between Dr. Tucker and one of
Grammer’s attorneys “to ensure that legal advice contemplated by Grammer’s counsel would
not be harmful to Grammer’s mental health.” D. 5/20/16 Br. 14. She maintains that these
communications are protected by the attorney-client privilege, as provided in Tex. R. Evid.
503(a)(2)(B) and (b)(1).
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The attorney-client privilege exists to “encourage full and frank communication
between attorneys and their clients and thereby promote broader public interests in the
observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383,
389 (1981). To achieve this goal, the privilege protects from disclosure “communications
from the client to the attorney made in confidence for the purpose of obtaining legal advice.”
Wells v. Rushing, 755 F.2d 376, 379 n.2 (5th Cir. 1985). “‘It shields communications from
the lawyer to the client only to the extent that these are based on, or may disclose,
confidential information provided by the client or contain advice or opinions of the
attorney.’” Aspex Eyewear, Inc. v. E’Lite Optik, Inc., 2002 WL 1592606, at *2 (N.D. Tex.
July 17, 2002) (Fitzwater, J.) (quoting United States v. Neal, 27 F.3d 1035, 1048 (5th Cir.
1994)).
Because Grammer asserts the privilege, she has the burden of proving that it applies
to each document that she seeks to protect from disclosure. See United States v. El Paso Co.,
682 F.2d 530, 539 (5th Cir. 1982). She must establish as to each document the following
elements:
(1) the asserted holder of the privilege is or sought to become a
client; (2) the person to whom the communication was made (a)
is (the) member of a bar of a court, or his subordinate and (b) in
connection with this communication is acting as a lawyer; (3)
the communication relates to a fact of which the attorney was
informed (a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an opinion on
law or (ii) legal services or (iii) assistance in some legal
proceeding, and not (d) for the purpose of committing a crime
or tort; and (4) the privilege has been (a) claimed and (b) not
waived by the client.
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AHF Cmty. Dev., LLC v. City of Dallas, 258 F.R.D. 143, 146 (N.D. Tex. 2009) (Fitzwater,
C.J.) (quoting In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir. 1975)). Moreover,
although the attorney-client privilege serves an important purpose, it also impedes the full
and free discovery of truth and therefore should be strictly construed. Navigant Consulting,
Inc. v. Wilkinson, 220 F.R.D. 467, 473 (N.D. Tex. 2004) (Kaplan, J.) (citing Perkins v. Gregg
Cnty., Tex., 891 F. Supp. 361, 363 (E.D. Tex. 1995)); see also In re Grand Jury Proceedings
in re Fine, 641 F.2d 199, 204 n.5 (5th Cir. Unit A Mar. 1981) (“[T]he attorney-client
privilege should be confined within the narrowest limits consistent with its purpose.”).
Under Tex. R. Evid. 503(b)(1), the attorney-client privilege protects confidential
communications “made to facilitate the rendition of professional legal services to the client
. . . between the client or the client’s representative and the client’s lawyer[.]” The term
“client’s representative” is defined to include “any other person who, to facilitate the
rendition of professional legal services to the client, makes or receives a confidential
communication while acting in the scope of employment for the client.” Tex. R. Evid.
503(a)(2)(B). Grammer maintains that
Dr. Tucker made [the communications on September 27, 2015
and September 29, 2015] while acting in the scope of her
employment as Grammer’s psychiatrist, and thus was a
representative of Grammer for purposes of the Texas Rules of
Evidence at that time. Moreover, the communications were
initiated so that Grammer’s attorneys could provide legal
services to Grammer without jeopardizing Grammer’s mental
health, and thus were necessary to the rendition of legal
services. Accordingly, those communications were made
between counsel and his client’s representative and were
necessary for the rendition of legal services, and thus are
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privileged.
D. 5/20/16 Br. 14 (citations omitted).
2
Without conducting an in camera inspection, the court cannot determine whether
Grammer has met her burden of establishing that the information redacted from the
September 27, 2015 and September 29, 2015 session notes is privileged. Accordingly, within
28 days of the date this memorandum opinion and order is filed, Grammer must submit the
withheld material for in camera inspection. She may either file the material under seal, or
she may submit paper versions. If she submits paper versions, the court will order them filed
under seal after it makes a ruling so that the record will be complete in case of any appeal.
3
Regarding the redacted portion of the January 13, 2016 session notes, Grammer
contends that this redaction pertains solely to a separate legal matter, wholly unrelated to this
lawsuit, and therefore is protected from disclosure by the psychiatrist-patient privilege, and
is irrelevant. Charalambopoulos has not responded to this argument.
The court concludes that Grammer has demonstrated, and Charalambopoulos has not
refuted, that the redacted portion of the session notes on January 13, 2016 is not relevant.
Accordingly, the court denies Charalambopoulos’ motion to compel this information.
D
Finally, the court considers Charalambopoulos’ motion to compel any correspondence
between Dr. Tucker and any individual representing Grammer.
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1
Grammer objects to Charalambopoulos’ request on the basis that it is overbroad and,
to the extent Charalambopoulos seeks communications between Dr. Tucker and Grammer’s
attorneys, the request calls for the disclosure of privileged communications.
Charalambopoulos responds that he is entitled to elicit testimony regarding Grammer’s
counsel’s communications with Dr. Tucker as a treating psychiatrist who has been designated
as a non-retained rebuttal expert, and that these communications can be used to show bias
and are clearly discoverable.
2
To the extent Charalambopoulos’ request for “any correspondence between Dr.
Tucker and any individual representing Camille Grammer,” P. 4/29/16 Br. 8, seeks
correspondence between Dr. Tucker and Grammer’s attorneys, the court concludes that
Grammer has failed to meet her burden of proving that the attorney-client privilege applies
to these documents. She argues that
[u]pon learning that [Charalambopoulos] would seek Dr.
Tucker’s deposition in this matter, Grammer’s attorneys offered
to undertake a limited representation of Dr. Tucker for the
purpose of responding to requests for documents, preparing Dr.
Tucker for her deposition, and representing her at the deposition.
Accordingly, communications between Dr. Tucker and counsel
subsequent to that time are protected from disclosure by the
attorney-client privilege.
D. 5/20/16 Br. 15-16. Although communications between Dr. Tucker and Grammer’s
attorneys after Grammer’s attorneys agreed to represent Dr. Tucker could be protected from
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disclosure by the attorney-client privilege,7 the privilege only applies to confidential
communications made for the purpose of obtaining legal advice. Grammer has not
established—nor does she even argue—that the correspondence that Charalambopoulos seeks
was either confidential or made for the purpose of obtaining legal advice. See AHF Cmty.
Dev., LLC, 258 F.R.D. at 146 (concluding that certain documents were not subject to
attorney-client privilege because “[t]hey do not contain an attorney’s legal advice or
confidential client communications made to obtain such advice.”). Accordingly, the court
grants Charalambopoulos’ motion to the extent he seeks correspondence between Dr. Tucker
and Grammer’s attorneys that Grammer has not already produced.8 Grammer must produce
these materials within 28 days of the date this memorandum opinion and order is filed.
To the extent Charalambopoulos requests production of communications between Dr.
Tucker and any other individual representing Grammer (i.e., someone who is not one of
Grammer’s attorneys), the court agrees that the discovery request is overbroad, and it also
seeks evidence that is not shown to be relevant to any remaining claim or defense.
Accordingly, Charalambopoulos’ motion to compel is denied in this respect.
E
In summary, the court grants Charalambopoulos’ motion to compel discovery relating
7
The court expresses no view on whether the correspondence Charalambopoulos seeks
might be protected as attorney work product, because neither Grammer nor her attorneys
invoke this protection.
8
Grammer contends that she has already produced emails that were exchanged
between Dr. Tucker and one of Grammer’s attorneys before Grammer’s attorneys undertook
their representation of Dr. Tucker in connection with her deposition.
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to whether Dr. Tucker treated Grammer for symptoms of insomnia, anxiety, or eating issues
prior to June 2011; orders an in camera inspection to decide whether Grammer has met her
burden of establishing that the information redacted from the September 27, 2015 and
September 29, 2015 session notes is privileged; grants the motion to compel the production
of any correspondence between Dr. Tucker and Grammer’s attorneys; and otherwise denies
Charalambopoulos’ motion to compel.
Grammer must produce the materials to
Charalambopoulos, or to the court for in camera inspection, in accordance with the deadlines
specified above.
III
The court now turns to Grammer’s motion for sanctions.
A
The Protective Order in this case provides, in pertinent part:
[i]f counsel for any party incorporates, discloses, or wishes to
submit Highly Confidential Information or information reflected
therein in any brief or other paper, it shall conspicuously
designate such portion of the brief or paper “HIGHLY
CONFIDENTIAL” and file it under seal in accordance with
Local Civil Rule 79.3[.]
Sept. 3, 2015 Order 6. Although the brief and appendix to Charalambopoulos’ motion to
compel contain documents marked “Highly Confidential,”9 Charalambopoulos’ attorney did
9
The brief and appendix also contain documents marked “Confidential.” With respect
to “Confidential” documents, however, the Protective Order only requires the redaction of
certain information:
If counsel for any party incorporates, discloses, or wishes to
submit Confidential Information or information reflected therein
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not file these documents under seal. According to Charalambopoulos’ attorney, this failure
was inadvertent,10 and as soon as he discovered the mistake, he immediately drafted and filed
a motion to seal, which the court granted within hours of the filing.
Grammer seeks the following sanctions based on the failure to file Charalambopoulos’
motion to compel and appendix under seal: (1) an order finding Charalambopoulos in civil
in any brief or other paper, it shall redact the first seven digits of
any telephone numbers belonging to any party, the first seven
digits of any telephone numbers in a text message sent to or
received from any party, the address number in any party’s
home address, the first five digits of any individual’s social
security number or taxpayer identification number, the day and
month of an individual’s birth date, and all numbers but the last
four numbers of a financial-account number.
Sept. 3, 2015 Order 5-6.
10
In his declaration, Charalambopoulos’ attorney avers, in pertinent part:
On Friday, April 22, 2016, I contacted Defendant’s Counsel via
e-mail for certificate of conference with the intent of filing the
Motion to Compel that day since the legal assistant working on
the case would be out the following week beginning Monday,
April 25 through Monday, May 2, 2016 on vacation. My legal
assistant was fully aware of the sensitive and confidential nature
included in the motion, and we had discussed prior the motion
needing to be filed under seal. Due to not receiving
confirmation of Defendant’s Counsel being opposed to the
motion until Monday, April 25, said legal assistant was unable
to file the motion prior to her leaving for vacation. As a result
a temporary legal assistant filed the Motion to Compel on April
29, 2016 and was unaware of the confidential nature requiring
the motion to be filed under seal. As soon as the error was
brought to my attention, I immediately filed a motion to seal that
was granted in a matter of hours.
D. 5/27/16 App. 3.
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contempt and directing him to pay a fine of $25,000; (2) an order denying
Charalambopoulos’ motion to compel; (3) an instruction that will apply to all future
proceedings in this case “to the effect that [Charalambopoulos’] own filing of these materials
on an unsealed basis led to the publication and republication of the allegations of assault in
Houston in October 2013 and of the guardhouse incident in April 2014, so that all or part of
any damages alleged by [Charalambopoulos] as a result of the publication of those matters
was caused by [Charalambopoulos’] own conduct in filing the Motion to Compel without
first obtaining an order sealing that filing as required,” D. 5/6/16 Br. 6; and (4) attorney’s
fees in the amount of $3,750 for the preparation and filing of Grammer’s motion for
sanctions, plus any additional sums incurred in preparing and filing any reply brief.
Charalambopoulos opposes the motion.
B
Although the court could issue a finding of civil contempt,11 it would be necessary to
11
To prove that Charalambopoulos should be held in civil contempt, Grammer “must
establish by clear and convincing evidence that (1) a court order was in effect, (2) the order
required specified conduct by the respondent, and (3) the respondent failed to comply with
the court’s order.” United States v. City of Jackson, Miss., 359 F.3d 727, 731 (5th Cir. 2004).
In the contempt context, “clear and convincing evidence” is “that weight of proof which
produces in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established, evidence so clear, direct and weighty and convincing
as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of
the precise facts of the case.” Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995)
(internal quotation marks omitted) (quoting In re Medrano, 956 F.2d 101, 102 (5th Cir.
1992)) (adopting in contempt context definition of clear and convincing evidence used in
attorney disbarment proceeding). “The contemptuous actions need not be willful so long as
the contemnor actually failed to comply with the court’s order.” Am. Airlines, Inc. v. Allied
Pilots Ass’n, 228 F.3d 574, 581 (5th Cir. 2000) (citing NLRB v. Trailways, Inc., 729 F.2d
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issue a show-cause notice and conduct a hearing before doing so. See, e.g., Waste Mgmt. of
Wash., Inc. v. Kattler, 776 F.3d 336, 340 (5th Cir. 2015) (addressing procedural requirements
for holding alleged contemnor in civil contempt, and stating, in pertinent part, that
“[a]dequate notice typically takes the form of a show-cause order and a notice of hearing
identifying each litigant who might be held in contempt.”).
The court considers it
unnecessary and wasteful to burden itself and the parties with completing these procedures,
considering that the remedy the court would impose in the civil contempt context is likely
the equivalent of the one that it finds appropriate in the context of a discovery sanction order.
Accordingly, rather than issue a show-cause order and convene a contempt hearing, the court
will deny all remedies that Grammer requests12 except for her request for attorney’s fees
incurred in preparing the motion for sanctions and her reply brief.
Within 28 days of the date this memorandum opinion and order is filed, the parties
must confer and attempt to agree on the amount of reasonable attorney’s fees to be awarded
to Grammer and on the date by which these fees will be paid. If the parties cannot reach
1013, 1017 (5th Cir. 1984)). “Good faith is not a defense to civil contempt; the question is
whether the alleged contemnor complied with the court’s order.” Chao v. Transocean
Offshore, Inc., 276 F.3d 725, 728 (5th Cir. 2002). It is undisputed that the Protective Order
in this case required Charalambopoulos to file his motion to compel and accompanying
appendix under seal in accordance with N.D. Tex. Civ. R. 79.3 and that Charalambopoulos
failed to do so. See P. 5/27/15 Br. 1 (“Plaintiff’s counsel inadvertently allowed four pages
of documents marked ‘highly confidential’ to be filed as a regular filing as opposed to filing
under seal pursuant to Local Rule 79.3 as specified in this Court’s Protective Order.”).
12
The court denies Grammer’s request for the imposition of a $25,000 fine, an order
denying the motion to compel, and an instruction that Charalambopolous’ damages were
caused by his own conduct in filing the motion to compel.
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agreement, Grammer may file a motion for such reasonable attorney’s fees. And if the court
grants her relief that is greater than what she sought in the meet and confer process, she will
be entitled to additional reasonable attorney’s fees and nontaxable expenses incurred in filing
her motion for reasonable attorney’s fees.
*
*
*
For the reasons explained, the court grants in part and denies in part
Charalambopoulos’ motion to compel and Grammer’s motion for sanctions, and it in part
orders an in camera inspection.
SO ORDERED.
March 8, 2017.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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