United States District Court, D. Utah, Central Division
CALVIN DONALD OSTLER, as personal representative of the Estate of Lisa Marie Ostler, Plaintiff,
HOLLY PATRICE HARRIS, ZACHARY PAUL FREDERICKSON, TODD ALLAN BOOTH, TODD RANDALL WILCOX, M.D., RONALD PAUL SEEWER, JR., BRENT LEE TUCKER, and SALT LAKE COUNTY, a political subdivision of the State of Utah, Defendants.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
SHORT FORM DISCOVERY MOTION TO ORDER PRODUCTION OF RELEVANT
MENTAL HEALTH AND THERAPY RECORDS
Bruce S. Jenkins, Judge.
the court is Defendants' (Holly Harris, Zachary
Frederickson, Todd Booth, Todd Wilcox, Ronald Seewer, Jr.,
Brent Tucker, and Salt Lake County) (collectively,
"Defendants") Short Form Discovery Motion to Order
Production of Relevant Mental Health and Therapy Records from
the decedent Lisa Ostler ("Ms. Ostler"). ECF No.
143. The Estate of Ms. Ostler ("Plaintiff) filed an
objection. ECF No. 149. After the Motion was fully briefed
and oral argument was heard on May 6, 2019, with Ross
Anderson and Walter Mason appearing for Plaintiff and Jacque
Ramos and Bridget Romano appearing for Defendants, the court
ordered Lisa Ostler's mental health and psychotherapy
records to be sent directly to the court for in
camera review. Accordingly, the court is now in receipt
of Ms. Ostler's mental health records dating from 2007 to
2016. After reviewing Ms. Ostler's mental health records
and considering the written and oral arguments as well as the
relevant law, the court hereby DENIES the Motion.
are seeking the mental health records of the patient, Ms.
Ostler. Defendants argue that Ms. Ostler's mental health
records should be produced in discovery because they are
relevant and because Plaintiff put Ms. Ostler's mental
state directly in issue thereby waiving her
psychotherapist-patient privilege in the records. ECF No. 143
at 2-3. In response, Plaintiff asserts that Ms. Ostler's
records are privileged. ECF No. 149 at 2. Plaintiff further
argues that Plaintiff did not waive the privilege by alleging
that Ms. Ostler experienced mental suffering as a result of
Defendants' neglect. Id. On May 24, 2019, the
court ordered that Ms. Ostler's mental health records be
provided to the court for an in camera review. ECF
26(b)(1) of the Federal Rules of Civil Procedure defines the
scope of permissible discovery. Fed.R.Civ.P. 26(b)(1). Rule
26 permits discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case. Id.
communications between a licensed psychotherapist and her
patients in the course of diagnosis or treatment are
protected from compelled disclosure under Rule 501 of the
Federal Rules of Evidence." Jaffee v. Redmond,
518 U.S. 1, 15 (1996). In Jaffee, the Supreme Court
explicitly stated that the psychotherapist-patient privilege
could be waived but declined to define the contours of the
waiver, instead leaving it to lower courts to craft a rule of
waiver. Await v. Marketti, 287 F, R.D. 409, 416
(N.D. Ill. 2012) (citing Jaffee, 518 U.S. at 15 n.
14). However, the Supreme Court in Jaffee explicitly
rejected the balancing test used in lower courts that
balanced the patient's privacy interests with the
evidentiary need for disclosure. Jaffee, 518 U.S. at
16. The Court further emphasized, "Making the promise of
confidentiality contingent upon atrial judge's later
evaluation of the relative importance of the patient's
interest in privacy and the evidentiary need for disclosure
would eviscerate the effectiveness of the privilege."
psychotherapist-patient privilege to exist, the patient must
have an expectation that the communications with the
psychotherapist will remain private and not be disclosed to
others. Scott v. Edinburg, 101 F.Supp.2d 1017, 1020
(N.D. 111. 2000). In recognizing the privilege between
psychotherapists and patients, the Supreme Court noted,
"Like the spousal and attorney-client privileges, the
psychotherapist-patient privilege is 'rooted in the
imperative need for confidence and trust."3
Jaffee, 518 U.S. at 10 (quoting Trammel v.
United States, 445 U.S. 40, 51, (1980)).
argue that Plaintiff cannot maintain an expectation of
privacy in the records. ECF No. 143 at 2-3. To support this
proposition, Defendants cite to Estate of Turnbow v.
Ogden City, in which certain mental health records of
police officers were deemed admissible because the officers
did not have an expectation of privacy in their records.
Estate of Turnbow v. Ogden City, 254 F.R.D. 434,
437-438 (D. Utah 2008). For two of the police officers in
Turnbow, the court found that because some of the
counseling sessions were prepared as part of pre-employment
evaluations and it was clear to the officers that the records
would be disclosed to their employers, the officers did not
have an expectation of privacy in those records. Id.
For another officer, the court found that because a letter
prepared as part of a PTSD interview was disclosed to a third
party, the letter was not privileged. Id.
Conversely, other counseling sessions not mandated by the
police department or disclosed to third parties were
privileged and were not discoverable, despite the potential
relevance of the records to the case. Id.
court finds Ms. Ostler had an expectation of privacy in her
therapy sessions. Ms. Ostler did not seek out the counseling
sessions at the direction of an employer. There is no
indication from the record that Ms. Ostler had any
expectation other than that the counseling sessions would
remain confidential. Thus, Ms. Ostler had a privilege in her
argue that the privilege in Ms. Ostler's records was
waived. ECF No. 143 at 3. Lower courts have found two kinds
of waiver: express and implied. See ...