United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 2007 Decided June 15, 2007

No. 06-5134

RANDOLPH S. KOCH,

APPELLANT

v.

CHRISTOPHER COX, CHAIRMAN, SECURITIES AND EXCHANGE

COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 02cv01492)

Ellen K. Renaud argued the cause for appellant. With her

on the briefs were David H. Shapiro and Richard L. Swick.

Marina U. Braswell, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A. Taylor,

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and BROWN and

KAVANAUGH, Circuit Judges.
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Opinion of the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Randolph Koch sued his

employer, the Securities and Exchange Commission, under the

Civil Rights Act of 1964, the Americans with Disabilities Act,

the Rehabilitation Act, and the Age Discrimination in

Employment Act. When the SEC then attempted to serve a

subpoena for confidential records relating to communications

between Koch and his psychotherapist, Koch moved to quash

the subpoena. The district court denied the motion on the

ground that Koch, by placing his mental state in issue, had

impliedly waived the psychotherapist-patient privilege. The

court ordered Koch’s psychotherapist to produce confidential

records and ordered Koch to make her available for a deposition.

Koch appeals, arguing he did not waive the psychotherapistpatient privilege and therefore his communications with his

therapist are privileged and not discoverable. We agree and

hence reverse the order of the district court.

I. Background

Koch sued the SEC in the district court alleging

discrimination, retaliation, and failure to accommodate his

medical conditions. He alleged that he had serious medical

problems — cardiovascular disease, hypertension, gout, and

obstructive sleep apnea — requiring accommodation in the form

of a lightened or “gliding” work schedule, and that the SEC’s

refusal to accommodate him prevented Koch from participating

in a “medically-supervised cardiac rehabilitation program

prescribed by his cardiologist.” Koch also alleged the SEC’s

actions exacerbated his hypertension and other problems. He

sought a permanent injunction prohibiting the SEC’s

discriminatory and retaliatory practices, affirmative relief

including a promotion and the withdrawal of adverse

performance appraisals, and compensatory and punitive
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damages. He did not seek damages for emotional distress.

Koch executed releases authorizing the SEC to seek and

obtain medical information from various health care providers,

including, as relevant here, his psychopharmacologist, Steven A.

Polakoff, M.D., and his psychoanalyst, Margo Aron, L.C.S.W.,

a licensed social worker. Each release provided that Koch “may

revoke this Authorization at any time, [in writing] ... except to

the extent that action has already been taken in reliance [upon]

this Authorization.” These clauses appear to be based upon

regulations issued by the Department of Health and Human

Services pursuant to the Health Insurance Portability and

Accountability Act (HIPAA), which permit revocation “except

to the extent that ... (i) The covered entity has taken action in

reliance thereon,” 45 C.F.R. § 164.508(b)(5)(I), and define a

covered entity as, among others, a “health care provider,” id.

§ 160.102(a).

Before Ms. Aron was served with the subpoena for

information about Koch’s psychotherapy, but after the SEC had

attempted service at an office the address of which Koch had

provided but which Aron did not frequently use, Koch revoked

his authorization for Aron to release information about him.

Koch then moved to quash the SEC’s subpoena, in opposition to

which the SEC maintained that Koch had put his mental state in

issue and thereby waived the psychotherapist-patient privilege.

A magistrate judge denied the motion in a Memorandum Order

stating:

[Koch] seeks thousands of dollars in compensatory damages

for, inter alia, emotional distress. While he has not alleged

a separate claim for infliction of emotional distress, he has

alleged that the SEC’s actions caused him to ‘develop []

serious hypertension,’ ‘ha[ve] damaged his health,’ made it

harder for him to control his weight, and resulted in stress,
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humiliation and loss of enjoyment of life.’

The judge cited, as the source of these allegations, Koch’s

answers and supplemental answers to interrogatories. He went

on to conclude that Koch “has placed his mental state at issue in

this case ... through his acknowledgment that he suffers from

depression and takes medication for this condition,” and thus

had impliedly waived the psychotherapist-patient privilege,

citing Kalinoski v. Evans, 377 F. Supp. 2d 136 (D.D.C. 2005).

The judge added that Koch’s “initial authorization of release of

medical records from Aron and the references to Aron that exist

in medical records that are in the [SEC’s] possession also weigh

in favor of [finding an express] waiver.”

The district court agreed with the reasoning of the

magistrate judge and noted its agreement also with the SEC that

“once a release for Dr. Polakoff, a psychiatrist, was provided

and he produced records mentioning Ms. Aron, [Koch] cannot

retract his waiver with respect to Ms. Aron: ‘[Koch] surely is not

entitled to cherry-pick his waiver of privilege.’” Accepting

“without modification” the recommended decision of the

magistrate judge, the court denied Koch’s motion to quash.

Koch filed motions respectively to withdraw any “claim for

emotional distress damages” and for reconsideration. The

district court denied reconsideration without indicating whether

it was also denying Koch’s motion to withdraw the claim. The

court granted the SEC’s motion to compel Aron’s testimony and

ordered Aron to produce all records requested by the SEC.

Koch appeals both this order and the order accepting the

magistrate judge’s recommended decision.

II. Analysis

 Under the collateral order doctrine of Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949), we have
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jurisdiction over the interlocutory appeal of an order denying a

motion to quash based upon a privilege. In re: Sealed Case

(Medical Records), 381 F.3d 1205, 1209 (2004) (“orders

compelling production of allegedly privileged information

satisf[y] the three criteria for collateral review”) (citation

omitted). We review the “district court’s discovery ruling for

abuse of discretion.” Id. at 1211. “Because a ‘district court by

definition abuses its discretion when it makes an error of law,’

the ‘abuse-of-discretion standard includes review to determine

that the discretion was not guided by erroneous legal

conclusions.’” Id. (quoting Koon v. United States, 518 U.S. 81,

100 (1996)).

 

Koch argues (1) he neither impliedly nor expressly waived

the psychotherapist-patient privilege, and (2) the district court

erred by ordering Aron to testify and produce records after Koch

withdrew any claim to damages for emotional distress. We

agree in both respects.

A. Implied Waiver

Koch first argues the district court “erred by finding that

[he] placed his mental state at issue [because he] never alleged

that the SEC’s conduct caused a psychological or mental

injury.” Further, Koch did not “claim the SEC’s conduct caused

him to seek professional treatment from a psychotherapist” and

his complaint “does not even contain a claim of emotional

distress.”

 

A review of Koch’s complaint confirms this position.

Although Koch did acknowledge in a deposition that he suffers

from depression and he referred to “stress” and “humiliation” in

his answers and supplemental answers to interrogatories, upon

which the district court based its conclusion that Koch had

placed his mental condition in issue, those answers do not
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clearly make an allegation of, much less a claim to recovery for,

emotional distress.

In its order denying Koch’s motion for reconsideration, the

district court did not indicate whether it was denying Koch’s

motion to withdraw any “claim for emotional distress damages.”

The district court had, however, approved without modification

the magistrate judge’s conclusion that Koch’s mental state was

in issue because he acknowledged suffering from depression.

 

Before this court it is perfectly clear, even if it was not

before the district court, that Koch has abandoned any claim the

district court may have thought he made for damages due to

emotional stress. That does not, however, moot the district

court’s decision and the SEC’s argument that Koch put his

mental state in issue by acknowledging he suffers from

depression. We therefore must decide whether a plaintiff puts

his mental state in issue in such a way as to waive the

psychotherapist-patient privilege by acknowledging he suffers

from depression.

In Jaffee v. Redmond, 518 U.S. 1 (1996), the plaintiff

sought statements a police officer had made to the officer’s

therapist, a licensed clinical social worker, after the officer had

shot and killed the plaintiff’s decedent in a “traumatic incident”

responding to a “fight in progress” call. Id. at 3-4. The

Supreme Court held that “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.” Id. at 15

(footnote omitted). The Court squarely rejected the position that

a court should balance the need for relevant information in the

particular case before it against the invasion of a patient’s

privacy. Id. at 17 (“Making the promise of confidentiality

contingent upon a trial judge’s later evaluation of the relative
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importance of the patient’s interest in privacy and the

evidentiary need for disclosure would eviscerate the

effectiveness of the privilege”); see In re Sealed Case (Medical

Records), 381 F.3d at 1214 (“In Jaffee, the Court flatly rejected

the suggestion that the privilege was subject to balancing”).

 

The Jaffee Court also observed that a “patient may of

course waive the protection” of the privilege, 518 U.S. at 15

n.14, but it did not speak further to the subject of waiver. The

Court did provide some guidance relevant to waiver, however,

when it likened the privilege to the attorney-client and spousal

privileges. See Jaffee, 518 U.S. at 10 (“Like the spousal and

attorney-client privileges, the psychotherapist-patient privilege

is rooted in the imperative need for confidence and trust”)

(internal quotation marks omitted); id. at 11 (comparing interests

served by spousal, attorney-client, and psychotherapist-patient

privileges).

We are aware of only two cases in the federal courts of

appeals addressing the question whether a party has waived the

psychotherapist-patient privilege. See Doe v. Dairy, 456 F.3d

704 (7th Cir. 2006); Schoffstall v. Henderson, 223 F.3d 818 (8th

Cir. 2000). Both were Title VII cases in which the plaintiff

sought recovery for emotional distress. In Doe v. Dairy the

Seventh Circuit stated without unnecessary elaboration: “If a

plaintiff by seeking damages for emotional distress places his or

her psychological state in issue, the defendant is entitled to

discover any records of that state.” 456 F.3d at 718. In

Schoffstall, the Eighth Circuit said only that it found

“persuasive” certain district court cases concluding that, just as

a client waives the attorney-client privilege when he “places the

attorney’s representation at issue, a plaintiff waives the

psychotherapist-patient privilege by placing his or her medical

condition at issue” when he or she makes a claim for emotional

distress. 223 F.3d at 823. We need not decide whether making
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a claim for emotional distress necessarily waives the privilege

— there being no such claim in this case — in order to observe

that an affirmative answer does not follow from the Schoffstall

court’s analogy to the attorney-client privilege. A client waives

that privilege when he puts the attorney-client relationship in

issue — for example, by suing the attorney for malpractice or by

claiming he relied upon the attorney’s advice. See, e.g., United

States v. Moody, 923 F.2d 341, 352-53 (5th Cir. 1991); Mueller

& Kirkpatrick, Evidence § 5.30 (3d ed. 2003); Restatement

(Third) of the Law Governing Lawyers § 80 (2000). By

analogy, a patient would waive the psychotherapist-patient

privilege when he sues the therapist for malpractice, or relies

upon the therapist’s diagnoses or treatment in making or

defending a case. See, e.g., Vanderbilt v. Town of Chilmark, 174

F.R.D. 225, 229 (D. Mass. 1997).

Here, of course, we have a plaintiff making no claim of

emotional distress but an acknowledged history of depression.

Undaunted by the lack of precedent suggesting such an

acknowledgment by itself puts the plaintiff’s mental state in

issue, the SEC takes the position that any time it is possible, as

a matter of medical science, that a plaintiff’s mental condition

— depression, anxiety, remorse, etc. — may be a cause of his

alleged physical condition, or even just aggravate that condition,

the plaintiff necessarily has put his mental state in issue and

thereby waived the psychotherapist-patient privilege. As a

practical matter that position would confine the rule in Jaffee to

the facts of that case. But we are not authorized sub silentio to

overrule a decision of the Supreme Court. Rather, we must

supply a standard for determining whether a patient has waived

the privilege but it must be a standard that does not eviscerate

the privilege.

The parties provide extensive briefing on what they both

see, in the decisions of various district courts, as the “narrow,”
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“broad,” and “middle ground” approaches to determining

whether a patient has placed his mental state in issue. The

narrow approach, as characterized by Koch, means “patients

only waive the privilege by affirmatively placing the substance

of the advice or communication directly in issue,” as in

Fitzgerald v. Cassil, 216 F.R.D. 632, 638 (N.D. Cal. 2003). The

“broad” approach, favored by the SEC, is purportedly that taken

in Schoffstall although, as noted above, that case does not

explain what it might mean to place one’s mental condition in

issue in a case that does not involve a claim for emotional

distress. Jackson v. Chubb Corp., 193 F.R.D. 216 (D.N.J.

2000), describes the “middle ground,” under which Koch argues

he would still prevail and which the SEC suggests is inapposite:

“[W]here a plaintiff merely alleges ‘garden variety’ emotional

distress and neither alleges a separate tort for the distress, any

specific psychiatric injury or disorder, or unusually severe

distress, that plaintiff has not placed his/her mental condition at

issue to justify a waiver of the psychotherapist-patient

privilege.” Id. at 225 n.8.

As we see it, the question before us should be answered

with reference to the Supreme Court’s guidance analogizing the

psychotherapist-patient privilege to the attorney-client and

spousal privileges. See Jaffee, 518 U.S. at 10-11. To inform our

decision whether Koch waived the psychotherapist-patient

privilege in this case, we therefore look to our cases concerning

waiver of those analogous privileges.

As noted before, a client waives the attorney-client privilege

when he sues the attorney for malpractice or bases a claim or

defense upon the attorney’s advice, see, e.g., Mueller &

Kirkpatrick, Evidence at § 5.30; Restatement (Third) of the Law

Governing Lawyers § 80, but in this case Koch neither sued his

therapist nor relied upon her communications with him. A party

also puts a communication with his attorney or his spouse in
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issue if he “selectively disclose[s] part of a privileged

communication in order to gain an advantage in litigation,”

S.E.C. v. Lavin, 111 F.3d 921, 933 (D.C. Cir. 1997) (marital

privilege); see also In re Sealed Case, 676 F.2d 793, 818 (D.C.

Cir. 1982) (“Courts need not allow a claim of [attorney-client or

work product] privilege when the party claiming the privilege

seeks to use it in a way that is not consistent with the purpose of

the privilege”). The “prohibition against selective disclosure of

confidential materials derives from the appropriate concern that

parties do not employ privileges both as a sword and as a

shield.” Lavin, 111 F.3d at 933.

 

The SEC argues that Koch is engaged in just such

cherrypicking by claiming the agency, in its words, caused his

“physical injury and stress” and yet waiving the privilege as to

Dr. Polakoff but not as to Ms. Aron. As we have seen, however,

Koch neither alleges nor claims damages for emotional distress,

nor even for the more generic “stress.” Nor is his waiver of the

privilege as to Polakoff related to his mental condition; Koch

alleged his heart problems relate to his lipid disorder, wherefore,

he explains, he has “agreed to authorize the release of records

from Dr. Polakoff, ... who administers the medication and

manages its effects, so that the SEC can test this theory.”

Koch’s release as to Polakoff was not, therefore, “an unfair

tactical manipulation of the privilege” or an attempt to shield

some communications from disclosure “while at the same time

relying on [other communications and] ... thereby gain a

litigation advantage,” Lavin, 111 F.3d at 933.

Accordingly, we hold that a plaintiff does not put his mental

state in issue merely by acknowledging he suffers from

depression, for which he is not seeking recompense; nor may a

defendant overcome the privilege by putting the plaintiff’s

mental state in issue. A plaintiff who makes no claim for

recovery based upon injury to his mental or emotional state puts
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that state in issue and thereby waives the psychotherapist-patient

privilege when, consistent with the Supreme Court’s analogy in

Jaffee, 518 U.S. at 10-11, he does the sort of thing that would

waive the attorney-client privilege, such as basing his claim

upon the psychotherapist’s communications with him, see, e.g.,

Mueller & Kirkpatrick, Evidence at § 5.30; or, as with the

marital privilege, “selectively disclos[ing] part of a privileged

communication in order to gain an advantage in litigation,”

Lavin, 111 F.3d at 933 (citation omitted).

B. Express Waiver

The decision of the magistrate judge, accepted by the

district court without modification, suggests that Koch’s “initial

authorization of release of medical records from Aron ...

weigh[s] in favor of [finding an express] waiver.” Koch argues

he validly revoked his express waiver of the privilege as to

Aron. More specifically, because the authorization he signed is

derived from a regulation implementing the HIPAA, which

regulation permits revocation except to the extent a “covered

entity” has relied upon the authorization, and the SEC is not

such an entity, Koch contends his revocation was valid. The

SEC contends Koch has forfeited this point because he did not

make it in the district court and, at any rate, but for the mistaken

address Koch gave the SEC for Aron, Aron would have been

served before Koch revoked his authorization.

Koch did argue before the district court that he timely

revoked his express waiver as to Aron; his invocation of the

HIPAA regulation is new and supports his position but it is not

itself a new claim or defense. See Yee v. City of Escondido, 503

U.S. 519, 534 (1992) (“Once a federal claim is properly

presented, a party can make any argument in support of that

claim; parties are not limited to the precise arguments they made

below”). Rather than raising a new issue upon which the district
12

court did not rule, Koch is adducing additional support for his

side of an issue upon which the district court did rule, much like

citing a case for the first time on appeal.

 

Turning to the merits, we see the HIPAA regulations are

probative as to the meaning of the phrase “reliance [upon] this

Authorization” in the waiver. Because the SEC is not a

“covered entity,” the proper question here is not whether the

SEC relied upon the waiver but whether the “health care

provider” with custody of the records in issue (Ms. Aron) relied

upon the waiver before Koch revoked it. Koch could not revoke

his waiver to the extent Aron had disclosed confidential

information in reliance upon the waiver. Because Aron had not

disclosed any records, Koch could revoke in toto his

authorization to do so.

The SEC next objects that, but for Koch having given it

Aron’s secondary address, it could have served her with the

subpoena before Koch revoked his authorization. Perhaps so,

but the date of service is not necessarily (or even likely) the date

upon which Aron would have released Koch’s records in

reliance upon the waiver. Nor is there any reason to believe

Koch intentionally gave the SEC the incorrect address for Aron;

after all, if his goal when he supplied the address had been to

deny the SEC access to the records, then he would not have

signed the waiver in the first place. The SEC’s arguments

blaming Koch for its failure to serve Aron are therefore of no

moment.

In sum, fairly read, Koch’s waiver was revocable by its

terms except to the extent, which was nil, that his

psychotherapist had released information in reliance upon the

waiver. We therefore hold the district court erred in adopting

the magistrate judge’s conclusion that Koch expressly waived

the privilege.
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III. Conclusion

Because the district court erred in concluding Koch waived

the psychotherapist-patient privilege, either impliedly or

expressly, the orders of the district court denying Koch’s motion

to quash and compelling Aron to testify and produce documents

relating to her treatment of Koch are

Reversed.