ORDER
This mаtter is before the Court on Defendant’s motion to compel discovery and for an order requiring the plaintiff to submit to a mental examination pursuant to Rule 35(a) of the Federal Rules of Civil Procedure [Doc. No. 49], and Plaintiffs corresponding motion to quash and for protective order [Doc. No. 40]. The contentions in these motions were discussed at the hearing held on September 5, 2000, at which time the Court took the matters under advisement and directed the parties to file additional briefs. See [Doc. No. 60]. The additional briefs have been filed and the matters are ripe for decision.
Motion for Rule 35(a) Mental Examination
Rule 35(a) of the Federal Rules of Civil Procedure provides:
When the mental or physical condition ... of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician ... The order may be made only on a motion for good causе shown ...
Fed.R.Civ.P. 35(a). The key predicates for the application of this rule are whether the plaintiff has put her mental condition “in controversy” and whether defendant has shown “good cause” for the examination. Robinson v. Jacksonville Shipyards, Inc.,
The majority of courts have held that plaintiffs do not place their mental condition in controversy merely by claiming damages for mental anguish or “garden variety” emotional distress. See Ricks v. Abbott Labs.,
A similar majority — indeed many of the same courts — also recognize that a mental exam is warranted when one or more of the following factors are present: (1) a tort claim is asserted for intentional 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 claim for emotional distress damages; and/or (5) plaintiff concedes that her mental condition is in controversy within the meaning of Rule 35. See Ricks,
In the present case, Plaintiff alleges claims for sex discrimination and hostile environment under Title VII and a separate intentional infliction of emotional distress claim under Georgia tort law.
The Court directs that any such mental examination shall not be permitted until after the final disposition of Defendant’s pending motion for summary judgment leaving an issue for trial as to the state tort claim of intentional infliction of emotional distress. Under the authorities cited above, if the tort claim for intentional infliction is dismissed from the case on summary judgment, the Court will not allow the examination based solely on Plaintiffs claim for damages under Title VII for mental anguish and emotional distress. Defendants are instructed to submit a motion and proposed order to the undersigned, specifying the “time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made” as required under Rule 35(a), within 10 days of any final ruling by the district court on the motion for summary judgment leaving any intentional infliction tort issues for trial.
II.
Defendant’s Motion to Compel and Plaintiff’s Motion to Quash and/or for Protective Order
Plaintiff asserts that Defendant’s subpoenas duces tecum to her mental health
A subрoena must be quashed or modified if it “requires disclosure of privileged or other protected matter and no exception or waiver applies.” Fed.R.Civ.P. 45(c)(3)(A)(iii). The term “privileged” refers to protections afforded by the rules of evidence. See United States v. Reynolds,
A. Federal Law Applies
Plaintiff asserts that Georgia law defines the parameters of the psychotherapist-patiеnt privilege while Defendant argues federal common law controls. Rule 501 of the Federal Rules of Evidence provides in pertinent part:
The privilege of a ... person ... shall be governed by principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as tо which State law supplies the rule of decision, the privilege of a witness, [or] person ... shall be determined in accordance with State law.
Fed.R.Evid. 501. The rule does not specify which law of privilege should apply when, as here, the privilege is asserted to both federal question and supplemental state tort claims. The federal courts, however, have consistently held that the federal law of privilege applies to all claims in а federal question case. See Hancock v. Hobbs,
B. Scope and Waiver of Privilege
In recognizing the psychotherapist-patient privilege the Supreme Court explained that “[l]ike the spousal and attorney-client privileges, the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and trust.’ ” Jaffee,
If the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation. Without a privilege, much of the desirable evidence to which litigants such as petitioner seek access — for example, admissions against interest by a party — is unlikely to come into being. This unspoken “evidence” will therefore serve no greater*556 truth-seeking function than if it had been spoken and privileged.
Id. at 11-12,
Although the Court acknowledged that, as with other testimonial privileges, the patient may waive the protection, it declined to “delineate [the privilege’s] full contours in a way that would govern all conceivable future questions.”
Making 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 would eviscеrate the effectiveness of the privilege. As we explained in Upjohn, if the purpose of the privilege is to be served, the participants in the confidential conversation must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.
Jaffee,
The Elevеnth Circuit has not yet addressed the issue of waiver in relation to the psychotherapist-patient privilege. This Court has found only about a dozen published federal decisions addressing the waiver issue since Jaffee established the privilege.
This Court, like the court in Ruhlmann, has found that, upon close inspection, many of the cases purporting to reject the narrow view and adopt a broad view actually take a middle ground. See Ruhlmann,
As discussed above in reference to Defendant’s motion for a Rule 35(a) examination, Plaintiff has put her mental condition in controversy by bringing a tort claim for intentional infliction of emotional distress. Outside of the state tort claim, however, it does not appear that Plaintiff is claiming anything other than garden variety emotional distress damages (i.e., as to her Title VII claims). Thus, this Court once again finds that the outcome on this motion is dependent upon whether Plaintiffs intentional infliction of emotional distress claim survives summary judgment. Because the Court finds that the tort claim of intentional infliction may not survive summary judgment, and bеcause the Supreme Court has determined that important public and private interests are served by protecting psychotherapist-patient communications, this Court concludes that Plaintiffs psychotherapy records shall not, at this time, be produced.
The Court instructs, however, that the privilege extends only to the communications between Plaintiff and her therapist(s) and does not protеct other information such as billing statements or dates of therapy.
C. Remaining Specific Requests in Defendant’s Motion
In addition, the Court makes the following-rulings on the remaining specific requests in Defendant’s motion to compel:
(1) Interivgatory No. 33:
DENIED; the request, requiring Plaintiff to identify each and every medical diagnosis Plaintiff has received for any medical condition, is over-broad.
(2) Interrogatory No. 31:.
GRANTED; the information sought— identification of all medication taken as a result of the alleged harassment, emotional distress, or discrimination — is not itself privileged and answering will not waive Plaintiffs assertion of privilege. Plaintiff shall respond by amended interrogatory answer on or before April 6, 2001.
(3) Request for Production No. 15:
DENIED; the request, requiring Plaintiff to produce all documents that relate to any medical treatment received by Plaintiff in the last ten years, is over-broad.
(4) Deposition Questions Listed at pp. 6-7 of Brief:
GRANTED IN PART and DENIED IN PART.
Defendant has identified at pages 6-7 of its brief six questions that Plaintiff refused to answer during her deposition. See [Doc. No. 49]. These questions were posed at pages 64-66, 84, and 99 of Plaintiffs deposition. As the Court discussed above, only the communications between Plaintiff and her psychotherapists) are protected — not the fact that therapy occurred or the dates upon whiсh it occurred. See Vanderbilt,
The Court finds that the first three questions listed in the brief by Defendant — seeking information regarding diagnoses of mental conditions and medications therefor— seek рrivileged information and will not be compelled. The motion is DENIED as to these three questions. As to the fourth question listed in the brief,
As to the last two questions listed in the brief on page 7,
III.
Conclusion
In summary, Defendant’s motion to compel medical discovery, [Doc. No. 49-1] is DENIED as to interrogatory number 33 and request for production number 15; GRANTED as to Defendant’s interrogatory number 34, and the last two deposition questions listed at page 7 of Defendаnt’s brief; and DENIED as to the other deposition questions.
Defendant’s motion for psychiatric exam under Rule 35(a) [Doc. No. 49-2] is GRANTED, but any such examination shall not be permitted until after final disposition of Defendant’s motion for summary judgment leaving issues to be tried as to the intentional infliction of emotional distress claim. If no such issues remain, the examination shall not be ordered. The Defendant may present an order at the appropriate time under Rule 35(a) in thе event an examination is permitted under this order.
Plaintiffs motion to quash [Doc. No. 40-1] is GRANTED to the extent the subpoenas seek privileged psychotherapy records. Defendant’s motion to compel [Doc. No. 49-1] is DENIED as it pertains to such records, subject to renewal should the intentional infliction claim survive summary judgment. Plaintiffs motion for a protective order [Doc. No. 40-2] is DENIED as moot.
Notes
. Plaintiff also alleges claims for non-promotion, a COBRA violation, and breach of contract. As neither party has argued that these additional claims are material to the present motions concerning Plaintiff's mental condition, the Court will not address those claims in deciding this motion.
. Indeed, at the September hearing, this Court advised counsel for Plaintiff that her pursuit of the state tort claim would likely require that the motion under Rule 35(a) be granted.
. The Court acknowledges Defendant’s assertion that, as Plaintiff is not the reciрient of the subpoenas, she does not have standing to bring this motion to quash. See (Def. Br. at 6, [Doc. No. 41]). Although Plaintiff did not move to intervene pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure, it appears to be the general rule of the federal courts that a party has standing to challenge a subpoena when she alleges a "personal right or privilege with respect to the materials subpoenaed.” Brown v. Braddick,
. Some limited guidance may be found, however, in a footnote — "we do not doubt that there are situations in which the privilege must give way, for example, if a serious threat of harm to the patient or to others can be averted only by means of a disclosure by the therapist.” Jaffee,
. Thе Court notes that there are also a handful (6-10) of unpublished cases (usually from the same districts) on the issue.
. Although the district court modified the magistrate judge’s decision in Fritsch regarding the outcome on the waiver issue, the discussion of the cases was not affected. See Doe v. City of Chula Vista,
. This Court agrees with the Fritsch court's finding that the Fox decision is internally inconsistent. The Court further notes that, despite finding waiver, the Fox court actually declined to compel production of the records because plaintiff averred that hеr damages for emotional distress “ended prior to her first counseling session." See Fox,
. The Court notes that it uses the term “psychotherapy" to include any mental professional that would fall under Ja fee’s protection.
. In the brief and at the hearing. Plaintiff has attested that she does not intend to refer to her psychological treatment or diagnosis or rely on any expert testimony as to her mental condition. If Plaintiff should change position as to this issue, the Court will entertain a renewеd motion by Defendant to obtain the records.
. Indeed, as it appears Plaintiff is maintaining a COBRA claim in this case, the dates and billing statements may be relevant to that claim and would be discoverable.
. Q: Are you claiming that as a result of the way you were treated at Stanley and the way you were terminated at Stanley that you suffered from depression?
. The two questions were as follows:
Q: During the time you were employed at Stanley, did you ever receive any marriage counseling?
Q: All right. How long have you been taking Wellbutrin?