IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RANDY J. THOMAS, 3:14-cv-01843-BR 

Plaintiff, OPINION AND ORDER

v. 

 

COMPREHENSIVE OPTIONS FOR 

DRUG ABUSERS, INC., doing 

business as CODA, Inc.,

 Defendant.

DANIEL J. SNYDER

CARL LEE POST

JOHN D. BURGESS

Law Offices of Daniel Snyder

1000 S.W. Broadway, Suite 2400

Portland, OR 97205

(503) 241-3617

Attorneys for Plaintiff

SAMUEL T. SMITH

ALLYSON S. KRUEGER

Dunn Carney Allen Higgins & Tongue, LLP

851 S.W. Sixth Avenue, Suite 1500

Portland, OR 97204-1357

(503) 242-9611

Attorneys for Defendant

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BROWN, Judge.

This matter comes before the Court on Defendant’s Motion

(#32) to Compel Production of Plaintiff’s Mental Health Treatment

Records. For the reasons that follow, the Court GRANTS

Defendant’s Motion.

PLAINTIFF’S CLAIMS

Plaintiff, a former employee of Defendant, brings unlawfultermination claims under the Family and Medical Leave Act, 29

U.S.C. § 2601, et seq.; the Oregon Family Leave Act, Oregon

Revised Statute § 659A.150, et seq.; the Oregon Rehabilitation

Act, Oregon Revised Statute § 659A.103, et seq.; and Oregon

common law.

In his claims under the Oregon Rehabilitation Act and Oregon

common law (Claims Three and Four) Plaintiff alleges he

“continues to suffer humiliation, anxiety, distress, and

impairment of Plaintiff's personal dignity and right to be free

from discrimination.” Second Am. Compl. ¶¶ 91, 102. In those

claims Plaintiff seeks noneconomic compensatory damages for

“emotional pain, suffering, inconvenience, mental anguish, [and]

loss of enjoyment of life.” Second Am. Compl. ¶¶ 94, 103.

DEFENDANT’S MOTION TO COMPEL

Defendant served on Plaintiff a request for production as

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follows:

REQUEST NO. 3: For the period from January 1, 2008

through present, all documents referring or relating to

any emotional or mental condition, impairment, illness,

disability or injury that Plaintiff has suffered,

including any and all medical or mental health records,

reports, bills or other documents which in any way

refer to or relate to any such condition, and

regardless of whether Plaintiff believes that any such

condition resulted from the alleged wrongful conduct of

Defendant. This request includes, without limitation,

all records relating to:

(1) “humiliation, anxiety, distress and impairment

of Plaintiff's personal dignity” as described in 

¶ 91 and 102 of the Second Amended Complaint; and

(2) “emotional pain, suffering, inconvenience,

mental anguish, [and] loss of enjoyment of life”

as described in ¶ 94 of the Second Amended

Complaint.

Plaintiff objected to the request on the ground that his mentalhealth records are protected by the psychotherapist-patient

privilege. In the alternative, Plaintiff offered to compromise

by agreeing not to testify regarding his mental-health treatment

and to refrain from calling his therapist as a fact or expert

witness.

Discussion

Defendant contends it is entitled to discover Plaintiff’s

mental-health records because Plaintiff waived any

psychotherapist-patient privilege by seeking damages to

compensate for his alleged mental anguish.

The Supreme Court recognized the psychotherapist-patient

privilege in Jaffee v. Redmond, 518 U.S. 1, 10 (1996). The Court

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noted the privilege was necessary because “the mere possibility

of disclosure may impede development of the confidential

relationship necessary for successful treatment.” Id.

Accordingly, the Court held “a psychotherapist privilege covers

confidential communications made to licensed psychiatrists and

psychologists” as well as “confidential communications made to

licensed social workers in the course of psychotherapy.” Id. at

15. 

The party asserting the psychotherapist-patient privilege

bears the burden of demonstrating (1) the treatment provider is a

licensed psychotherapist, (2) the communications to the treatment

provider were confidential, and (3) “the communications were made

during the course of diagnosis or treatment.” United States v.

Romo, 413 F.3d 1044, 1047 (9th Cir. 2005). Nonetheless, a party

may waive the psychotherapist-patient privilege if “he puts his

emotional condition at issue during the trial.” Maynard v. City

of San Jose, 37 F.3d 1396, 1402 (9th Cir. 1994). See also

Lahrichi v. Lumera Corp., 433 F. App’x 519, 521 (9th Cir. 2011). 

For example, a party who “asserts claims that place at issue the

reason for [the party’s] medical treatment . . . has waived the

privilege with respect to any statements he made . . . concerning

[the] need for that treatment.” Peake v. Chevron Shipping Co.,

Inc., 245 F. App’x 680, 683-84 (9th Cir. 2007).

In Tran v. Tyco Electronics Corp. this Court held the

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plaintiff “waived any psychotherapist/patient or doctor/patient

privilege because he placed his psychological state at issue in

this action by seeking damages for emotional distress.” No. 06-

cv-1810-BR, 2008 WL 2037279, at *2 (D. Or. May 7, 2008). See

also Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir.2000); 

Speaker ex rel. Speaker v. County of San Bernardino, 82 F. Supp.

2d 1105 ©. D. Cal. 2000). 

In Tran the Court reasoned “it would be unfair to allow

Plaintiff to proceed with a claim for emotional-distress damages

without giving Tyco an opportunity to prepare its defense with

information that may be relevant to Plaintiff's alleged emotional

and psychological condition.” Tran, 2008 WL 2037279, at *2. 

Plaintiff, however, contends the Court should not follow the

approach it employed in Tran, but instead the Court should follow

one of two narrower approaches that other district courts have

employed. Under the narrowest approach, Plaintiff contends the

psychotherapist-patient privilege is only waived when the party

asserting the privilege affirmatively relies on psychotherapistpatient communications. See Fitzgerald v. Cassil, 216 F.R.D.

632, 636-37 (N. D. Cal. 2003). See also Thomas v. UPS Ground

Freight, Inc., No. 06-cv-1281-ST (#19)(D. Or. Feb. 15, 2007), at

4-5. Under a middle-ground approach, Plaintiff contends the

psychotherapist-patient privilege is not waived when the

plaintiff raises only “garden variety” emotional-distress claims. 

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Fitzgerald, 216 F.R.D. at 637. See also Arjangrad v. J.P. Morgan

Chase Bank, N.A., 10-cv-01157-PK, at 15-18 (#59) (D. Or. Oct. 19,

2011).

The Court does not find the cases employing either the

narrow or middle-ground approaches to be persuasive. Whenever a

party affirmatively raises a claim that directly concerns that

party’s emotional distress and seeks to recover damages in

compensation for that distress, the party’s mental health and,

therefore, any records of mental-health treatment are

inextricably intertwined with the issues raised by the party. In

particular, when a party pleads claims that seek damages in

compensation for mental anguish, mental-health treatment records

become highly relevant to the issues of causation and damages

because a defending party should be entitled to explore

alternative reasons for Plaintiff’s asserted emotional distress

apart from the bases of Plaintiff’s claims being litigated. 

Thus, as noted in Tran, “it would be unfair to allow Plaintiff to

proceed with a claim for emotional-distress damages without

giving [Defendant] an opportunity to prepare its defense with

information that may be relevant to Plaintiff's alleged emotional

and psychological condition.” See Tran, 2008 WL 2037279, at *2.

Plaintiff alternatively contends his offer not to testify at

trial regarding any mental-health treatment or not to call his

therapist as a fact or expert witness renders his mental-health

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records otherwise undiscoverable because his mental-health

treatment records would no longer be relevant. Plaintiff’s

proposed compromise, however, would not render his mental-health

records undiscoverable because the discovery of such records

would remain reasonably calculated to obtain admissible, relevant

evidence in light of the fact that Plaintiff’s Second Amended

Complaint still contains claims for noneconomic damages as

compensation for Plaintiff’s mental anguish.

Accordingly, on this record the Court concludes Plaintiff

has waived the psychotherapist-patient privilege as to the period

relevant to this action, and, therefore, Plaintiff’s mentalhealth records for that period are discoverable.

CONCLUSION

For these reasons, the Court GRANTS Defendant’s Motion (#32)

to Compel Production of Plaintiff’s Mental Health Treatment

Records.

IT IS SO ORDERED.

DATED this 6th day of October, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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