MEMORANDUM
Prеsently before the Court is a motion by plaintiff Marie N. Jackson seeking a protective order preventing discovery of her current and ongoing mental health records as well as the identity of her current mental health care provider, pursuant to Fed. R.Civ.P. 26(c). The Court has reviewed the moving, opposition, and reply papers, and heard argument on the matter on March 6, 2000. For the following reasons, plaintiffs motion for a protective order is denied.
Background
The present motion stems from a complaint filed by plaintiff on September 15, 1998, primarily alleging that her previous employer and numerous individual defendants discriminated against her on the basis of race. See Plaintiff’s Complaint filed September 15, 1998. Since that time, there has been a flurry of activity by both sides in the way of discovery, motions (both dispositive and nondispositive), and conferences with this Court. Most recently, this Court granted plaintiffs motion to file a third amended complaint, after defendants posed no objections.
On February 16, 2000, plaintiff filed this motion for a protective order to prevent the discovery of her current and ongoing mental health records,
Citing several cases, plaintiff elaborates on the well-established notions that psychotherapy requires confidentiality and that communications between patient and psychotherapist are privileged. See id. at 7-11. She maintains that no known exception to that privilege would support disclosure of ongoing treatment records from her current therapist before she places those records at issue. See id. at 14. Plaintiff thereby acknowledges that she may be required to disclose all of her current mental health records if she seeks to introduce or rely upon those current records at a later date, or if she relies upon conclusions reached by her psychotherapist. See id. at 14, 20. Plaintiff maintains that she has not yet made such an election and thus waiver is simply inapplicable to her current and ongoing mental heаlth records. See id. at 15.
In further support of the motion, plaintiff initially submitted the affidavit of her counsel, Jerry V. Leaphart, Esq., in lieu of her current mental health care provider who wishes to remain anonymous. The affidavit sets forth plaintiffs doctor’s position that any disclosure of plaintiffs current medical records would compromise the effectiveness of any treatment that plaintiff might receive. See Leaphart’s Affidavit in Support of Motion at 2. The affidavit further voices the doctor’s concern that plaintiff, “herself a trained lawyer, would almost certainly take a guarded view of what she could disclose to me in therapy sessions if she knows, or suspects, that her treatment records and/or her treater’s impressions of them or of her are then subject to disclosure to third persons[,]”0 creating “an environment that is inimical to the confidential treatment modality upon which psychotherapeutic treatment is based.” Id. at 2-3. Lastly, the affidavit reiterates that defendants have received sufficient information with whiсh to defend this case. See id. at 3-5.
In response, defendants primarily argue that plaintiff is obligated to produce her current mental health records because she waived any psychotherapist-patient privilege when she placed her mental and emotional condition at issue by seeking damages for continuing emotional distress. See Defendants’ Brief in Opposition to Motion at 1. Defendants assert that plaintiff has failed to present any factual, legal, or medical support for the proposition that although she has placed her mental condition at issue, she need not produce her current records because it would interfere with her treatment. See ibid. Defendants further contend that plaintiff has misconstrued the issue by merely arguing that psychotherapist-patient communications are privileged, rather than addressing the issue of plaintiffs waiver of the privilege by placing her mental health at issue. See id. at 4. Defendants next cite numerous cases standing for the proposition that a plaintiff waives any doctor-patient or psychotherapist-patient privilege by placing his/her mental state at issue. See id. at 5-7. Noting that plaintiff has conceded that she has placed her mental and emotional condition at issue, defendants argue that she “cannot be allowed to demand money for the damage she claims the [defendants have done to her mental and emotional state without being required to produce the details of her psychiatric treatment.” Id. at 7-8.
In addition, defendants point to two Orders by this Court directing plaintiff to produce her medical records or to produce legal or medical support for her position that she need not produce certain records.
In reply, plaintiff asserts that she has demonstrated the importance of maintaining the confidentiality of communications between herself and her treating psychotherapist, and that that constitutes the requisite “good cause” pursuant to Fed.R.Civ.P. 26(c) to warrant limiting, discovery of her mental health records. See Plaintiff’s Reply Brief at 2. Plaintiff has also submitted the affidavit of her current mental health care provider but has attempted to redact the name of that provider.
Under Rule 26(c), a party from whom discovery is sought may move for a protective order, and “for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” by either preventing the discovery in toto or limiting it in some appropriate fashion. Fed.R.Civ.P. 26(c). The burden of persuasion rests with the party seeking the protective order. See Cipollone v. Liggett Group, Inc.,
It is axiomatic, and undisputed by either party, that communications between a psychotherapist and a patient in the course of diagnosis or treatment are privileged and therefore protected from compelled disclosure under Federal Rule of Evidence 501.
Effective psychotherapy ... depends upon an atmosphere of confidence and trust in*220 which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of thе sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.
Id. at 10,116 S.Ct. 1923 .
The Court further noted that effective and successful psychotherapy is completely dependent upon the patient’s ability and willingness to talk freely. See ibid, (citation omitted).
In addition to recognizing that protecting confidential psychotherapist-patient communications from involuntary disclosure serves important private interests, the Supreme Court also concluded that such protection similarly serves the public interest “by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physicаl health, is a public good of transcendent importance.” Id. at 11,
Moreover, the Jaffee Court expressly rejected the approach by which courts “balanced” the evidentiary need for disclosure of the psychotherapist-patient communications against the patient’s privacy interests. See id. at 7, 17,
Like other testimonial privileges, the Jaffee Court acknowledged in a footnote that “the patient may of course waive the protection.” Id. at 15 n. 14,
Following Jaffee, courts have been divided as to when a waiver of the psychotherapist-patient privilege has resulted from the bringing of a lawsuit. This Court initially notes that its research has revealed no Third Circuit or New Jersey district court opinion addressing this particular issue, nor, as conceded at oral argument, has counsel for either party been successful in locating any such decision. The Court is therefore guided by two distinct views on waiver that have emerged from other federal courts. In what has become known as the broad view, courts have found waiver of the privilege where the plaintiff alleges emotional distress in his/her complaint, thereby placing his/her mental or emotional condition at issue, and seeks monetary damages for the psychological injury. See Fritsch v. City of Chula Vista, No. CIV.98-0972,
The most cited authority for the broad view of waiver, Sarko v. Penn-Del Directory Co.,
The Sarko court premised its holding on three bases. See ibid. First, it noted that other district courts prior to Jaffee had recognized that a plaintiff may waive the psychotherapist-patient privilege by placing his/ her mental condition at issue. See ibid. Second, the court noted that the privilege was analogous to that of attorney-client, which is waived when counsel’s advice is placed at issue in litigation. See ibid. Lastly, the cоurt agreed that “allowing a plaintiff ‘to hide ... behind a claim of privilege when that condition is placed directly at issue in a case would simply be contrary to the most basic sense of fairness and justice.’ ” Ibid. (quoting Premack v. J.C.J. Ogar, Inc.,
A vast number of courts have also applied the broad view of waiver in similar situations. See, e.g., Allen v. Cook County Sheriffs Dep’t, No. 97 C 3625, 1999 WL 168466, at *2 (N.D.Ill. March 17, 1999) (recognizing that “[fjundamental fairness demands that the defendants should have ample opportunity to scrutinize the basis for the opinions of [plaintiffs] therapists if she attempts to elicit therapist testimony or evidence to prove her damages caused by her alleged emotional distress.”); McKenna v. Cruz, No. 98 CIV. 1853,
Turning to the narrow view of waiver, Vanderbilt v. Town of Chilmark,
First, the Vanderbilt court noted that preJaffee cases that found waiver when a plaintiff placed his/her mental condition at issue did not have Jaffee’s “mandate against balancing the need for the evidence against the patient’s interest in the privilege.” Id. at 228. The court reasoned that Jaffee’s rejection of the balancing test “drastically change[d] the waiver formula.” Id. at 229. The court thus explained that when a plaintiff claims emotional injury, he/she has not explicitly waived the privilege, but has merely made his/her communication with the psychotherapist potentially relevant. See ibid. Such evidence may be helpful or harmful to the plaintiffs case. See ibid. The Vanderbilt court further noted that following the Jaffee decision, “a court cannot force disclosure of that evidence solely because it may be extremely useful to the finder of fact. Giving weight to the usefulness of the evidence as a factor in a decision regarding the scope of the privilege would be a balancing exercise that was barred by Jaffee.” Ibid. The court then explained that the Sarko court may have interpreted Jaffee to require bright-line certainty when defining the scope of the privilege; however, Sarko’s “ ‘mental-state-at-issue’ ” test fails to provide that certainty. See ibid. Indeed, the Vanderbilt court recognized that courts have arrived at differing conclusions as to the circumstances under which a plaintiff actually places his/her mental state at issue, thereby leaving a patient without any certainty, at the time of psychotherapy, as to whether the communications will remain privileged at a later date. See ibid. The court explained that “[tjhis uncertainty could ‘eviscerate the effectiveness of the privilege.’ ” Ibid. However, the Vanderbilt court failed to reconcile its position with Federal Rule of Civil Procedure 35(a), which requires an independent medical examination in situations where a plaintiff places her medical condition in issue. The burden of undergoing a defense-dictated psychiatric exam is presumably no less intrusive than disclosure of treatment records, yet no one has questioned the fairness of the “at issue” rule in this context. See, infra, n. 8.
Second, while the Vanderbilt court agreed with Sarko’s analogy of the psychotherapist-patient privilege to that of the attorney-client, it disagreed with the result. See Vanderbilt, supra,
In sum, the Vanderbilt court held that the plaintiff could conceivably waive the privilege if she used the substance of her communications in the litigation, such as, for example, if she called her psychotherapist as a witness or if she herself testified to the substance of the communication. See ibid. In other words, in those situations plaintiff is placing the privileged communication itself at issue. See ibid.
Recently, the court in Santelli v. Electro-Motive,
The problem with [the] narrow waiver rule is that it would enable a party who had undergone psychotherapy to offer at trial only the testimony of a retained, non-treating expert and thereby prevent discovery of what she had told her treating psychotherapist. Among other things, this would allow the party to provide the expert with a selеctive “history,” while preventing the veracity of that history from being tested by comparing it to what the party had reported to her treating psychotherapist. We find this result unacceptable, as it would allow the privilege holder to thwart the truth seeking process by using the privilege as both a shield and a sword. Id. at 308.
Discussing Vanderbilt’s rationale, and recognizing that other courts have used predictability as a basis to support the narrow view, the Santelli court was unpersuaded by the notion that “patients need to know with certainty at the time of the communication whether and under what circumstances confidentiality will be maintained at a later date.” Id. at 308-09 (citing Vanderbilt, supra,
Recognizing that “[a] party cannot inject his/her psychological treatment, conditions, or symptoms into a case and expect to be able to prevent discovery of information relevant to those issues[,]” the Santelli court nonetheless found that the plaintiff had avoided waiver of the psychotherapist-patient privilege by limiting the scope of her emotional distress claim to compensation for embarrassment, humiliation, and other similar emotions. Ibid. Affirming the magistrate judge’s decision to preclude introduction of evidence of any emotional distress that required care or treatment by a physician, the district court added that plaintiffs communications with her psychotherapist had been rendered essentially irrelevant, as plaintiff would be precluded from introducing the fact or details of her treatment, evidence through any witness about conditions or symptoms that she suffered, or evidence regarding a psychological or medical diagnosis. See ibid. The court thus recognized that plaintiffs testimony would be limited to her subjective feelings of humiliation, embarrassment, anger, and other similar emotions. See ibid. Lastly, the court opined that mere testimony of disgust or humiliation may prevent a full recovery for plaintiffs alleged emotional distress, and that she would fare better by disclosing her psychological records and alleging a broader damage claim. See ibid.
Another recent district court case, Fritsch v. City of Chula Vista, No. CIV.98-0972,
The California court further elaborated that in seeking to recover damages for emotional distress, the plaintiff must establish that her employer’s improper conduct proximately caused the specific injury. See ibid. In so doing, plaintiffs “emotional health, near the time of the defendants’ alleged misconduct, is an issuе in the litigation[,]” particularly where plaintiff is relying on her emotional condition to make her case. Ibid. The court further reasoned that to ensure a fair trial, particularly on the element of causation, the defendants “should have access to evidence that Fritsch’s emotional state was caused by something else____ Once Fritsch has elected to seek such damages, she cannot fairly prevent discovery into evidence relating to the element of her claim.” Ibid.
Further explaining that it was particularly persuaded by concerns of fairness and predictability discussed in Santelli, the Fritsch court acknowledged that the narrow view of waiver does hold some merit. See id. at *9. The court, however, was quick to point out that it is always the plaintiffs choice to keep communications with his/her psychotherapist private by controlling the particular relief sought in the complaint. See ibid. Recognizing that such a choice is a difficult one, the court observed that it dоes permit a plaintiff to protect his/her psychotherapist communications, while at the same time allowing the defendant to test the veracity of the plaintiffs claim. See ibid.
Finally, the Fritsch court commented that “the scope of discovery into this sensitive area should be limited and confined to that information that is essential to a fair trial.” Id. at *10. As such, the plaintiffs entire medical history would not be subject to disclosure, such as, for example, medical records relating to the birth of plaintiffs child. See ibid.; see also Vasconcellos v. Cyber Int’l, Inc.,
Having closely reviewed cases supporting both the brоad and narrow views on waiver, this Court is convinced that the broad view of waiver best serves the respective interests of the parties to a lawsuit and adequately addresses fairness concerns that have plagued many courts. Indeed, at the core of most
In holding that a plaintiff waives the psychotherapist-patient privilege by placing his/ her mental or emotional condition at issue, this Court agrees with Fritsch’s conclusion that the Supreme Court would in all likelihood adopt the broad view of waiver. To reiterate, the Supreme Court’s proposed Rule of Evidence 504 specifically recognized that the psychotherapist-patient privilege does not protect “communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense.” Because a plaintiff seeking to recover for intentional or negligent infliction of emotional distress must rely on his/her mentаl or emotional condition as an element of the claim, this Court is satisfied that the Supreme Court would embrace the broad view of waiver.
Significantly, the broad view of waiver not only allays concerns of fairness and justice impacting both parties to a lawsuit, but it also placates Jaffee’s concern that the psychotherapist-patient privilege must be predictable if its purpose is to be served. Indeed, a straightforward rule that a plaintiff waives the privilege by injecting his/her mental condition into the case and placing it at issue
As recognized by other courts, a plaintiff in need of continuing psychotherapy will be forced to make the unenviable choice between seeking damages for his/her ongoing emotional distress and thereby waiving the privilege as to ongoing treatment, or forego recovering damages for the continuing distress. The Court is certainly not insensitive to the Hobson’s choice visited upon such a plaintiff. While there are undoubtedly elements of unfairness when a plaintiff who has allegedly suffered emotional or mental harm at the hands of a defendant is forced to choose between either unfettered psychotherapy or the right to claim relief for all harm continuing into the future,
Other factors strongly point to applicability of waiver under the facts of this particular ease. For example, the affidavit of plaintiffs psychotherapist reveals that on April 10, 1999, plaintiff was hospitalized and diagnosed аs suffering_ from anxiety, paranoia, depression, and hallucinations. See Affidavit of Plaintiff's Psychotherapist at ¶ 6. In her brief, plaintiff maintains that she “has suffered from specific diagnoses of mental and/or emotional distress from 1995 to the present. Sadly, her condition has worsened as is confirmed by the DSM references found in Plaintiffs medical records and elaborated upon in annexed affidavit.” Plaintiff's Brief at 5. Plaintiff further contends that her worsening condition has resulted in multiple emergency hospital admissions. See id. at 6. The Court notes that plaintiff has manifested an unmistakable intent to inject her current symptoms and diagnoses into the underlying litigation.
Moreover, as brought to this Court’s attention by defendants’ letter of March 2, 2000, plaintiffs expert, Dr. Francesca Peckman, may have had access to plaintiffs current mental health care provider or to plaintiffs current mental health records, or was given information by plaintiff as to her current treatment. Indeed, Dr. Peckman’s report states that she “concur[s] with the DSM-IV (Axis I) diagnoses assigned by [plaintiffs] current mental health care professional of moderate to severe depression and post-traumatic stress disorder, moderate.” Dr. Peckman’s Psychological Report at 5. The report continues: “It is likely that [plaintiff] will need further in-patient psychiatric care in the foreseeable future, which in turn will curtail her ability to work, again as part of the ongoing clinical picture that has emerged following her wrongful treatment аnd discharge from Chubb.” Id. at 4 (emphasis added). Plaintiff cannot have it both ways: she cannot provide her own expert access to her current treater and respective records, intending to rely on that expert’s opinion, while denying that same information to defendants. Defendants must certainly be provided the opportunity to verify the diagnoses, as well as their severity and causes, particularly where, as here, plaintiff is alleging newly-diagnosed symptoms and conditions such as post-traumatic stress disorder. At oral argument, plaintiffs counsel represented to the Court that Dr. Peckman had not been given access to either plaintiffs current mental health care provider or the treatment records. Even if Dr. Peckman lacked direct access to plaintiffs current treater or the treatment records, but instead learned of plaintiffs most recent diagnoses from plaintiff, denying defendants the same access is problematic as well since plaintiff is unfettered in what she relays to her expert while defendants are provided only a selective, perhaps inaccurate, history that they cannot verify or question. Indeed, it makes the plaintiffs expert’s opinion equally suspect.
This Court concludes that when a plaintiff places his/her current mental condition at issue, by asserting other than a “garden variety” anxiety claim, the psychotherapist-patient privilege to current and ongoing mental health records is waived. Although the Court has adopted the broad view of waiver, even the narrow analysis (Vanderbilt ) acknowledges that a plaintiff waives the psychotherapist-patient privilege when he/ she uses the privileged communication as evidence and, as such, a plaintiff could not shield the privileged communication if she were “to introduce evidence regarding the substance of her conversations with her psychotherapist in order to further her claim of emotional damage____” Vanderbilt, supra,
Plaintiff can, however, prevent disclosure of these records simply by electing to abandon her current claims of emotional distress. Limiting her distress claims to a certain period prior to her current psychotherapy will render those records irrelevant and not subject to disclosure, and will allow plaintiff to benefit from her ongoing therapy. See Fox, supra,
In sum, this Court finds that plaintiff has not demonstrated any particularized showing of harm establishing “good cause” and necessitating a protective order, nor any reason for this Court to divert from the generally recognized broad view of waiver. As such, plaintiffs motion for a protective order is denied and plaintiff must produce the mental health records at issue forthwith. Disclosure of these records shall be limited by the Stipulation and Protective Order filed on December 29, 1999, describing the manner in which disclosure of confidential documents is to be handled. If, however, plaintiff decides to limit her emotional distress claims to a certain period of time preceding her current treatment, and thereby abandon her allegations of continuing distress, then any mental health records related to the current and ongoing distress will become irrelevant and
not subject to disclosure. Should plaintiff choose to make that limitation, she must do so immediately within the time period in which disclosure is to be accomplished. An appropriate Order shall follow.
Notes
. Pursuant to previous Orders of this Court, plaintiff has apparently disclosed all mental health records prior to the records at issue here.
. Plaintiff conceded this point both in her moving papers and at oral argument. Plaintiff’s legal claims include, inter alia, intentional and negligent infliction of emotional distress. Because plaintiff is alleging specific psychiatric injuries and disorders, there is no question as to whether her allegations of distress are of a mere "garden variety.”
. The Orders are dated October 4, 1999, and December 3, 1999.
. This affidavit was apparently submitted in response to defendants' objection to plaintiff producing the affidavit of her own counsel rather than that of her current psychotherapist. Although plaintiff redacted the therapist’s name in certain places, she inadvertently failed to redact the doctor’s name on the front page of the affidavit.
To clarify the issue raised by plaintiff, the Court notes that the identity of plaintiff's health care provider and the dates of treatment constitute relevant information that is not privileged because it “does not pertain to the substance of a confidential communication.” Fox v. The Gates Corp.,
motion is of no consequence where defendants are entitled, unconditionally, to that information.
. Federal Rule of Evidence 501 provides that "the privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States____ However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness .,. shall he determined in accordance with State law.” Pursuant to this rule, "in federal question cases the federal common law of privileges applies.” Wm. T. Thompson Co. v. General Nutrition Corp., Inc.,
. The Court’s proposed rule reads as follows: " 'There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense....’ ” Id. at *4 (quoting Proposed Rule of Evidence 504(d)(3)).
. In Vasconcellos, defendants sought disclosure of any and all documents pertaining to the plaintiff's psychotherapy and meeting the following description: "medical or psychological histories; admission histories; psychological data bases; laboratory results; discharge summaries; psychologiсal evaluations; social histories; initial clinical assessments; consultation records; treatment plans and updates; doctor and medical staff notes; telephone messages; billing and payment information; and all other similar documents.” Id. at 707.
. As seen in the cases analyzed, the most common way for a plaintiff to place his/her mental or emotional condition at issue is to assert an ADA violation, a claim for intentional or negligent infliction of emotional distress, or seek damages for severe emotional distress. This Court previously noted that plaintiff here is alleging more than "garden variety” emotional distress; as such, it is undisputed that she has placed her mental condition at issue for purposes of a waiver analysis.
In the analogous context of requiring a plaintiff to undergo a mental examination pursuant to Federal Rule of Civil Procedure 35(a), courts have generally found that "garden variety” emotional distress does not satisfy the rule’s requirement that the plaintiff’s mental condition must be "in controversy.” See, e.g., Smith v. J.I. Case Corp.,
. Of course, a plaintiff is always free to simultaneously seek damages for ongoing emotional distress and continue psychotherapy, although mindful that doing so will waive the psychotherapist-patient privilege related to the continuing distress.
. On October 25, 1999, plaintiff testified at her deposition that "I still got unfairly and wrongfully terminated and my mental distress is so heavy I am very heavily distressed and will be probably for the rest of my life having to be medicated for my hallucinations.” The plaintiff could choose to cut off her claim for emotional distress damages at a defined earlier point and not seek damages going forward. In so doing, she would not be placing her current or future treatment and diagnoses at issue. See, infra, at 227-228.