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Ostler v. Harris

United States District Court, D. Utah, Central Division

December 17, 2019

CALVIN DONALD OSTLER, as personal representative of the Estate of Lisa Marie Ostler, Plaintiff,
v.
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

          Hon. Bruce S. Jenkins, Judge.

         Before 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.

         BACKGROUND

         Defendants 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 No. 159.

         DISCUSSION

         Rule 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.

         I. Privilege

         "[Confidential 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." Id.

         For a 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)).

         Defendants 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.

         The 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 records.

         II. Waiver

         Defendants 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 ...


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