ORDER
Pursuant to the District Court’s Order of Referral, filed November 4, 2004, Defendant Waffle House, Inc. ’s Motion to Compel Discovery, filed November 3, 2004, was referred to this Court for hearing, if necessary, and for determination. Aso before the Court is Plaintiffs Response to Defendant Waffle House, Inc.’s Motion to Compel Discovery, filed November 18, 2004.
I. BACKGROUND
Plaintiffs brought suit against Defendant alleging that Defendant violated 42 U.S.C. § 1981 and 42 U.S.C. § 2000a, by discriminating against Plaintiffs on the basis of race. (Compl. at 1.) Plaintiffs’ lawsuit asserts that Defendant refused to serve them on a nondiscriminatory basis when they visited a Waffle House restaurant in Euless, Texas. Id. The lawsuit alleges that as a result of Defendant’s actions, Plaintiffs “have suffered, continue to suffer, and will, in the future, suffer great and irreparable loss and injury, including, but not limited to, humiliation, embarrassment, emotional distress, and mental anguish.” Id. at 7. Plaintiffs seek an award of compensatory damages solely for emotional distress and mental anguish damages. Id. at 9. Other relief requested includes declaratory judgment, permanent injunctions, and punitive damages. Id.
On July 1, 2004, Defendant served Plaintiffs with discovery requests, seeking Plaintiffs’ medical and psychological records, as well as Plaintiffs’ personal records relating to their claims for mental anguish and emotional distress. At issue are Defendant’s Interrogatory Nos. 4 and 5, and Defendant’s Request for Production Nos. 4, 8, and 19.
II. ANALYSIS
A. Computation of Damages for Emotional Distress
Defendant seeks to compel Plaintiffs to respond to Interrogatory No. 4, to which
Pursuant to Fed. R. Civ. P. 26(a)(1)(C), a party is required to disclose “a computation of any category of damages claimed..., making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered.” However, the Fifth Circuit has found that “compensatory damages for emotional distress are necessarily vague and are generally considered a fact issue for the jury” and “may not be amenable to the kind of calculation disclosure contemplated by Rule 26(a)(1)(C).” Williams v. Trader Publishing Co.,
In this case, Plaintiffs state that they do not intend to ask the jury for a specific dollar amount of damages at trial. (Resp. at 4.) Based on this representation and the Fifth Circuit’s holding in Williams, Plaintiffs will not be required to disclose a computation of damages at this time.
B. Identity of Medical Providers
Defendant seeks to compel responses to Interrogatory No. 5, which asks Plaintiffs to identify all health care professionals who have treated them since January 1, 1999. (M. Appx. Exh. A at 8.) Plaintiffs object to disclosure on the basis of relevance, privilege, invasion of privacy and harassment. As the party resisting discovery, the burden is on Plaintiffs to clarify and explain their objections and to provide support for those objections. Krawczyk v. City of Dallas,
1. Relevance
Pursuant to Fed. R. Civ. P. 26(b)(1), “[pjarties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party... For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Relevant information encompasses “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders,
Although Plaintiffs’ Response contests the relevance of Plaintiffs’ medical records to their claim for emotional distress damages, it does not specifically address discovery of the identities of treatment providers. Courts considering the issue have generally found that the identities of health providers, the dates of treatment and the nature of the treatment are relevant to claims for emotional distress damages. See Owens v. Sprint/United Management Co.,
Plaintiffs have not met their burden to show that the requested information is irrelevant under Fed.R.Civ.P. 26(b)(1) or is of such marginal relevance that the ordinary presumption in favor of disclosure is outweighed by any potential harm. Accordingly, the Court determines that the information sought in Interrogatory No. 5 is relevant, and Plaintiffs’ objection to Interrogatory No. 5 on this basis is overruled.
2. Privilege
While generally discussing the applicability of the physician-patient and psychotherapist-patient privileges to Plaintiffs’ medical records, Plaintiffs’ Response also does not specifically address the issue of whether the identities of medical providers are privileged.
The court notes that no physician-patient privilege exists under the federal common law applicable to this action. See Whalen v. Roe,
The Court finds that the information sought in Interrogatory No. 5 is not privileged, and Plaintiffs’ objection to Interrogatory No. 5 on this basis is overruled.
3. Invasion of Privacy and Harassment
As discussed above, courts have routinely ordered discovery of this information in cases where emotional distress damages are sought. Plaintiffs have not shown that the request for this information was made in order to harass them or to invade their privacy. Accordingly, these objections are also overruled.
C. Non-medical Records Relating to Alleged Injuries
Defendant seeks to compel a response to Request for Production No. 8, which seeks all documents maintained by or for Plaintiffs, including diaries and journals, that relate to their physical, mental, and/or emotional injuries. (M. Appx. Exh. C at 7.)
Plaintiffs’ Response to the motion also does not address this discovery request or attempt to establish the bases for their objections. One court has noted that “other courts, faced with this same issue, have routinely ordered the production of personal diaries in response to requests for production of documents.” Gill v. Beaver,
Plaintiffs have not met their burden to show that the documents sought in Request for Production No. 8, or any portion thereof, are irrelevant, or that the request unduly invades their privacy or is made for purposes of harassment. Nor do Plaintiffs explain how the requested non-medical records are privileged. Because the documents at issue were not tendered for in camera review, the Court cannot independently determine whether any portions are clearly irrelevant or privileged and should be protected from disclosure.
D. Medical Records
Defendant seeks to compel the production of medical records pertaining to Plaintiffs’ alleged emotional distress and mental anguish damages since January 1, 1999. (M. Appx. Exh. A at 8.) In Request for Production No. 4, Defendant seeks to have Plaintiffs execute an authorization to release records from each individual or entity named in Interrogatory No. 5. In Request for Production No. 19, Defendants seek medical records referring to Plaintiffs’ injuries. Plaintiffs have objected to the subject discovery requests, asserting that the medical records are irrelevant and that some of the information sought is protected by the psychotherapist-patient privilege. (Resp. at 1-3.)
1. Relevance
In support of their claim that their medical records are not subject to discovery, Plaintiffs rely on Burrell v. Crown Central Petroleum, Inc.,
The Burrell court began its analysis by examining eases which discussed the “in controversy” requirement for a physical or mental examination under Rule 35. Id. at 379-380. The Court noted that under the reasoning in the Rule 35 cases, the physical injury was “the crux of the case” in a personal injury suit whereas the work-related income loss resulting from discrimination was “the crux” in § 1981 and Title VII cases; the mental anguish was incidental to the physical injury or economic damage and did not suffice to put a plaintiffs mental condition in controversy so as to justify a Rule 35 examination. Id. at 380. Noting that the defendant was not seeking a Rule 35 examination, but only access to the plaintiffs’ medical records, the court stated that even if the Rule
This Court finds Burrell to be inapplicable. The Burrell court specifically found that the medical records at issue were not subject to mandatory initial disclosure under Rule 26(a)(1)(B) or Local Rule CV-26(c)(l)(F)(I). At issue in this case, however, is whether information pertaining to Plaintiffs’s medical and psychological condition and treatment is relevant and discoverable under Rule 26(b)(1). Unlike the mandatory disclosure rules at issue in Burrell,
Utilizing this broad construction of relevance in Rule 26(b)(1), several courts have found that medical records are relevant to claims of mental anguish in discrimination eases. See Owens v. Sprint/United Mgt. Co.,
The Court recognizes that all medical records, and especially records pertaining to treatment for purely physical conditions, will not necessarily be relevant to mental anguish claims. However, it is Plaintiffs’ burden to establish that show that there “no possibility” that the requested records may be relevant to the claim or defense of any party or
2. Invasion of Privacy and Harassment
For the same reasons stated in the preceding section, Plaintiffs have not shown that these discovery requests were made in order to harass them or to invade their privacy. Accordingly, these objections are also overruled.
3. Privilege
As previously noted, no physician-patient exists under the federal common law. See Whalen,
In recognizing the existence of a psychotherapist-patient privilege under the federal common law in Jaffee v. Redmond,
No court in this circuit appears to have addressed the issue of when a party waives the psychotherapist-patient privilege. The lower federal courts which have addressed the issue are split. Fitzgerald,
Courts adopting a narrow approach to waiver, as characterized in Vanderbilt v. Town of Chilmark,
Other courts have analogized the psychotherapist-patient privilege to the attorney-client privilege in what has been characterized as a third approach, and have held that the same principles of implied waiver should apply to both. See Adams v. Ardcor,
Cases have also recognized a fourth “middle approach” which holds that a mere request for damages for ordinary, garden variety claims of mental anguish or emotional distress, as opposed to a cause of action based upon emotional distress, does not place a party’s mental condition at issue, and the privilege is not waived. See e.g. Ruhlmann v. Ulster Co. Dept. Of Social Serv’s,
After exhaustive consideration of these differing approaches, the Court finds that it need not reach the issue of the applicable standard for determining whether the psychotherapist-patient privilege has been waived. There is no evidence in the record that documents responsive to this request exist.
III. CONCLUSION
For the foregoing reasons, Defendant Waffle House, Inc. ’s Motion to Compel Discovery is GRANTED, in part and DENIED, in part. It is therefore
ORDERED that Defendant’s motion to compel a response to Interrogatory No. 4 is DENIED. Based on Plaintiffs’ express representation that they do not intend to request a specific amount of damages for mental anguish and emotional distress, Plaintiffs shall not be required to provide a computation of mental anguish damages. It is further
ORDERED that Defendant’s motion to compel responses to Interrogatory No. 5 and Request for Production Nos. 4, 8, 19 and 24 is GRANTED. Plaintiffs shall fully respond no later than 5:00 p.m. on Monday, February 14, 2005.
All relief not expressly awarded is hereby denied.
Notes
. Defendant’s motion also claims Plaintiffs failed to respond to Defendant's Request for Production Number 24. However, Plaintiffs’ response to the motion indicates that Plaintiffs no longer object to this request and that they are currently amassing documents responsive to this request. Accordingly, the Court need not address that issue.
. To the extent that Plaintiffs attempt to assign a specific dollar figure to their emotional distress damages at trial, Defendant may seek to exclude such evidence as provided by Federal Rule of Civil Procedure 37(c)(1).
. Some courts have limited discovery of diaries to portions concerning the conduct or events at issue in the litigation, similar events, or state of mind. See Simpson,
. The version of Rule 26(a)(1)(b) in effect at that time required that a party initially disclose all documents in its possession, custody, or control that were "relevant to disputed facts alleged with particularity in the pleadings.” The Eastern District’s local rules required production of records or authorizations if the plaintiff's medical or physical condition was "at issue.” See Burrell,
. Indeed, at a hearing on another matter in this case on January 28, 2005, counsel for Plaintiffs advised that no such records exist. The Court declines to take the opportunity at this time to address the propriety of asserting a privilege for documents which do not exist and further requesting a ruling on the matter.