287 F.R.D. 409
N.D. Ill.2012Background
- Plaintiff Elizabeth Await sues Grundy County Jail staff and Medical Care Defendants over her husband Mr. Awalt’s death at the jail.
- Defendants seek to compel discovery; Await asserts the psychotherapist-patient privilege on Mr. Awalt’s records.
- Defendants seek IDOC mental health records, SSA evaluations, Provena St. Joseph’s and Fort Logan records, Guardian Angel counseling records, and domestic abuse treatment records.
- Mr. Awalt’s death is alleged to be either due to inadequate medical care for a seizure or to asphyxiation/murder by a sock; defendants argue records are needed to support a suicide defense.
- Court applies federal common law privilege under Jaffee; holds privilege survives death and is not waived by ownership or litigation claims; grants limited waiver for domestic abuse records.
- Court denies the motion to compel production of Mr. Awalt’s IDOC, SSA, Provena, and Guardian Angel records; grants motion to compel for Mrs. Await’s domestic abuse treatment records and requires a waiver for those records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether psychotherapist-patient privilege applies to Mr. Awalt’s records. | Await waives only if not privileged. | Defendants need records to test suicide theory. | Privilege survives death; records not compelled. |
| Whether Await has waived the privilege by alleging damages or placing mental state at issue. | Garden-variety damages do not waive. | Damages and mental-state claims waive. | Waiver not shown; middle-ground approach applied. |
| Whether SSA records are waivable and subject to disclosure. | Privacy Act protections and no waiver. | Records relevant to suicide defense. | Not waived; SSA records not compelled. |
| Whether Guardian Angel counseling records are waived. | Counseling for daughter’s rape not probative of marital issues; protected. | Could illuminate relationship/context. | Protected by psychotherapist-patient privilege and Illinois law; not compelled. |
Key Cases Cited
- Jaffee v. Redmond, 518 U.S. 1 (1996) (federal psychotherapist-patient privilege closely aligned with attorney‑client privilege; survives for purposes of federal common law)
- In re Sims, 534 F.3d 117 (2d Cir. 2008) (privilege not ordinarily overcome when plaintiff’s mental state is put at issue by defendant)
- Koch v. Cox, 489 F.3d 384 (D.C. Cir. 2007) (middle-ground approach to waiver; distinguishes garden-variety damages)
- United States v. Ghane, 673 F.3d 771 (8th Cir. 2012) (suicidal tendencies do not automatically waive privilege)
- In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71 (1st Cir. 1999) (analogy to attorney-client privilege; privilege remains barring waiver)
- Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006) (privacy protections apply; waiver requires specific showing; SSA disclosures under Privacy Act contemplated)