Supreme Court of Texas

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No. 22-1167

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In re Richardson Motorsports, Ltd.,

Relator

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On Petition for Writ of Mandamus

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Argued January 30, 2024

JUSTICE BUSBY delivered the opinion of the Court.

In this mandamus proceeding, we address whether Texas Rules 

of Evidence 509(e)(4) and 510(d)(5) apply to a discovery request for a 

minor plaintiff’s psychological treatment records. These rules provide 

an exception to the privileges against disclosure of medical and mental 

health care treatment records if “any party relies on the patient’s 

physical, mental, or emotional condition as a part of the party’s claim or 

defense and the communication or record is relevant to that condition.” 

TEX. R. EVID. 509(e)(4), 510(d)(5).

In the underlying suit, real party in interest E.B. seeks damages 

for the alleged mental anguish she suffered from watching her younger 

brother be crushed to death by an ATV. Relator Richardson 

Motorsports, which sold the ATV, subpoenaed “all of [E.B.’s] 
2

psychological treatment records” from E.B.’s clinical psychologist and 

pediatrician beginning three years after the accident. The principal 

issue in this proceeding is whether E.B.’s mental or emotional condition 

is part of either her negligence claim for mental anguish damages as a 

bystander or Richardson’s defense that post-accident causes contributed 

to E.B.’s anguish, thus making her psychological records discoverable 

under the privilege exceptions. 

We conclude that E.B.’s mental or emotional condition is part of 

her claim because she is relying on expert testimony about that 

condition to prove her mental anguish damages, and it is also part of 

Richardson’s defense that those damages have alternative causes. 

Thus, discovery of E.B.’s mental health care treatment records relevant 

to the claim or defense is not foreclosed by privilege. We therefore 

conditionally grant mandamus relief and direct the court of appeals to 

withdraw its mandamus order preventing discovery. We also note that 

discovery of some records may be permitted on privilege-waiver grounds 

and further trial court proceedings are necessary to determine which 

parts of the records are not privileged under each rule. 

BACKGROUND

In 2013, Richardson Motorsports, Ltd., sold a Can-Am 

Commander 1000 XT ATV to E.B.’s Father. The ATV had four wheels, 

two seats, a metal roll cage around the occupants, and a cargo bed in the 

rear. The ATV was designed, manufactured, and marketed by 

Bombardier Recreational Products, Inc. At the time of sale, Richardson 

allegedly removed the ATV’s door netting, which is designed to protect 

the occupants in the event the ATV rolls over during an accident. 
3

In 2016, Bombardier recalled the ATV’s steering mechanism and 

sent a notice of recall to its dealers across the nation. Richardson 

allegedly failed to inform Father of the recall. In August 2016, Father 

brought the ATV to Freedom Powersports, LLC, for general 

maintenance. Freedom Powersports allegedly did not inform Father of 

the recall either and neglected to perform necessary safety repairs to the 

recalled parts. 

Two months later, Father was driving the ATV with his ten-yearold daughter E.B. and his eight-year-old son C.A.B. as unrestrained 

passengers sitting in the same seat. As the family was riding, the ATV’s 

recalled steering mechanism allegedly malfunctioned, and the vehicle 

rolled over. C.A.B. became trapped under the vehicle and was tragically 

crushed to death. Father and E.B. suffered physical injuries and 

contemporaneously witnessed C.A.B.’s prolonged suffering and death. 

E.B.’s Father and Mother, E.B. herself (represented by her 

parents as next friends), and her brother’s estate sued Bombardier, 

Richardson, and Freedom. As to Richardson, E.B. alleges that it 

negligently removed the ATV’s door netting and seeks damages for the 

alleged mental anguish she suffered from witnessing her brother’s 

death. Richardson answered that E.B.’s damages resulted from new and 

independent causes not reasonably foreseeable by Richardson. It 

specifically asserts that E.B.’s anguish was caused in whole or part by 

E.B.’s parents’ divorce, E.B.’s estrangement from Mother, and alleged 

sexual abuse of E.B. by her stepfather. 

In October 2021, Richardson issued notices of intent to take 

depositions by written questions and subpoenas duces tecum to (as 
4

relevant here) Doctors Kittay and Rani, E.B.’s clinical psychologist and 

pediatrician. Richardson requested “all psychological treatment 

records” pertaining to E.B. from November 2019 (for Kittay) or 

December 2019 (for Rani) to the present. Richardson also subpoenaed 

Mother’s psychological records. E.B. and Mother filed motions to quash, 

arguing first that Richardson’s request was overbroad because it 

includes “all psychological treatment records,” and second that the 

records are beyond the scope of permissible discovery because they are 

both privileged under Texas Rules of Evidence 509(c) and 510(b) and not 

relevant to a claim or defense. In response, Richardson argued that 

because E.B. “seek[s] damages for past and future mental anguish” as 

well as “bystander recovery,” her mental condition is part of her claim 

against Richardson, thus making her records discoverable under the 

“patient-litigant exception.” It also argued that E.B.’s records shed light 

on alternative contributing causes of her mental anguish.

During the hearing on the motions to quash, Richardson 

withdrew its request for Mother’s records. Moving to the matter of E.B.’s 

records, the trial court asked E.B. how she could “justify saying that her 

mental health records shouldn’t be discovered when [she is] making a 

mental anguish claim?” Counsel for E.B. responded that “routine 

allegations of mental anguish do not release everyone’s mental health 

records.” After an in camera review of E.B.’s records, the trial court 

denied E.B.’s motions to quash and ordered that all of E.B.’s requested 

psychological records be produced to Richardson. The court also ordered 

the production of Mother’s records even though Richardson had 

withdrawn its request for those records. 
5

E.B. and Mother then filed a petition for writ of mandamus in the 

court of appeals, which conditionally granted relief and directed the trial 

court to vacate its orders denying their motions to quash and requiring 

disclosure of the records. 655 S.W.3d 658, 676 (Tex. App.—Dallas 2022, 

orig. proceeding). The court of appeals held that the records are 

privileged and the exceptions do not apply because E.B.’s pleadings 

make no more than a routine claim of mental anguish. Id. at 672. The 

court recognized that E.B. failed to ask the trial court to forward the 

documents it inspected in camera to the appellate court under seal as 

she should have, but it concluded (over a dissent) that there was “a 

sufficient mandamus record because a review of the health care records 

is not critical to our determination.” Id. at 669-670; see id. at 677 

(Pedersen, J., dissenting). As to Mother’s records, the court of appeals 

held that ordering their production was an abuse of discretion because 

it is undisputed “there was no request for them” at the time of the court’s 

order. Id. at 674.

Richardson then filed a petition for writ of mandamus in this 

Court. Its petition focuses only on discovery of E.B.’s psychological 

records. 

ANALYSIS

“We review a court of appeals’ issuance of a writ of mandamus for 

an abuse of discretion, but in doing so our focus remains on the trial 

court’s order.” In re Christianson Air Cond. & Plumbing, LLC, 639 

S.W.3d 671, 681 (Tex. 2022). “A court of appeals may issue a writ of 

mandamus only if the trial court abused its discretion and there is no 

adequate remedy by appeal.” Id. We begin by considering whether the 
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trial court abused its discretion in denying the motions to quash because 

the records are privileged, as the court of appeals held.

The privilege against disclosure of medical and mental health 

care treatment records does not apply “if any party relies on the patient’s 

physical, mental, or emotional condition as a part of the party’s claim or 

defense and the communication or record is relevant to that condition.” 

TEX. R. EVID. 509(e)(4), 510(d)(5). We previously dubbed these 

exceptions the “patient-litigant exceptions,” but their language was 

later broadened by amendment. We conclude that “patient-condition 

exceptions” is a more accurate shorthand reference because the patient 

need not be a litigant and, even if she is, the claim or defense to which 

the records are relevant need not be her own. See STEVEN GOODE & OLIN 

GUY WELLBORN III, 1 TEX. PRAC. SERIES: GUIDE TO THE TEXAS RULES OF 

EVIDENCE § 510.5 (4th ed. updated 2023). 

This case requires us to determine when a party is relying on a 

patient’s mental or emotional condition as part of a claim for or defense 

to mental anguish damages. To recover such damages, a plaintiff must 

provide “evidence of the nature, duration, and severity of [her] mental 

anguish.”1 But we have not required that proof of anguish take the form 

of expert testimony about a particular mental or emotional condition; 

proof can come from “the claimants’ own testimony, that of third parties, 

or that of experts.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 

1 Gregory v. Chohan, 670 S.W.3d 546, 554 (Tex. 2023) (plurality op.) 

(quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)); see also 

id. at 572-73 (Devine, J., concurring) (“Of course, the jury’s decision must be 

based on evidence of the nature, duration, and severity of the claimant’s 

suffering—and it cannot be based on noncompensatory motivations.”). 
7

1995). And we have recognized that an “allegation of mental anguish or 

emotional distress [alone] does not place the party’s mental condition in 

controversy,”2 though a plaintiff may do so in other ways—for example, 

by asserting a mental injury that “exceeds the common emotional 

reaction to an injury or loss.” Coates v. Whittington, 758 S.W.2d 749, 

753 (Tex. 1988). We have held that post-traumatic stress disorder is an 

example of an injury that places the plaintiff’s mental or emotional 

condition in issue. See Groves v. Gabriel, 874 S.W.2d 660, 661 (Tex. 

1994).

Richardson offers three arguments to support its position that the 

requested records relate to E.B.’s mental or emotional condition that is 

part of a claim or defense, and thus the privilege exceptions apply. First, 

it contends that “shock” is a mental or emotional condition exceeding 

mental anguish that must be found by the jury as an element of E.B.’s 

bystander claim. Second, Richardson asserts that E.B. is relying on her 

mental or emotional condition to prove her mental anguish damages, as 

shown by designating her treating psychologist and pediatrician as 

testifying experts. Third, Richardson argues that E.B.’s mental or 

2 Coates v. Whittington, 758 S.W.2d 749, 753 (Tex. 1988); see also In re 

Whipple, 373 S.W.3d 119, 123 (Tex. App.—San Antonio 2012, orig. proceeding); 

In re Toyota Motor Corp., 191 S.W.3d 498, 502 (Tex. App.—Waco 2006, orig. 

proceeding); In re Nance, 143 S.W.3d 506, 512 (Tex. App.—Austin 2004, orig. 

proceeding); In re Doe, 22 S.W.3d 601, 610 (Tex. App.—Austin 2000, orig. 

proceeding); In re Williams, No. 10-08-00364-CV, 2009 WL 540961, at *6 (Tex. 

App.—Waco Mar. 4, 2009, orig. proceeding); In re Pennington, No. 

2-08-233-CV, 2008 WL 2780660, at *4 (Tex. App.—Fort Worth July 16, 2008, 

orig. proceeding); In re Chambers, No. 03-02-00180-CV, 2002 WL 1378132, at 

*4 (Tex. App.—Austin June 27, 2002, orig. proceeding); C&L Flooring 

Installations v. Cochell, No. 05-98-01919-CV, 2001 WL 915223 (Tex. App.—

Dallas Aug. 15, 2001, no pet.). 
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emotional condition is part of its defense that E.B.’s mental anguish was 

caused in whole or part by post-accident intervening, superseding, or 

contributing causes. We address each argument in turn. 

I. “Shock” exceeding mental anguish is not a mental or 

emotional condition that must be found by a jury in a 

bystander case.

“A bystander may recover mental anguish damages under Texas 

law after witnessing a close relative suffer a traumatic injury because of 

a defendant’s negligent action.” Edinburg Hosp. Auth. v. Trevino, 941 

S.W.2d 76, 80 (Tex. 1997). In Freeman v. City of Pasadena, we adopted 

three factors to help courts gauge whether a defendant can reasonably 

foresee injury to a bystander. 744 S.W.2d 923, 923-24 (Tex. 1988) 

(adopting foreseeability factors from Dillon v. Legg, 441 P.2d 912, 920 

(Cal. 1968)). A decade later, we reiterated that for a plaintiff to recover 

as a bystander, the court must determine that:

(1) The plaintiff was located near the scene of the accident, 

as contrasted with one who was a distance away from 

it;

(2) The plaintiff suffered shock as a result of a direct 

emotional impact upon the plaintiff from a sensory and 

contemporaneous observance of the accident, as 

contrasted with learning of the accident from others 

after its occurrence; and

(3) The plaintiff and the victim were closely related, as 

contrasted with an absence of any relationship or the 

presence of only a distant relationship.

United Servs. Auto. Ass’n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998).

Richardson does not dispute that E.B. meets the first and third 

factors. But Richardson challenges whether the emotional impact on 
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E.B. from contemporaneously observing her brother’s death rose to the 

level of “shock.” In Richardson’s view, “shock” is a mental or emotional 

condition that courts in other states have characterized as exceeding 

mental anguish, and that condition is part of E.B.’s claim because “the 

jury must make a factual determination concerning the condition itself.” 

R.K. v. Ramirez, 887 S.W.2d 836, 843 (Tex. 1994). Thus, Richardson 

contends, the patient-condition exceptions permit discovery of records 

relevant to that condition.

We reject Richardson’s argument for two reasons. First, “shock” 

is not a distinct factual element of liability that a jury must find in 

bystander cases. Instead, it is a foreseeability factor that bears on the 

legal question whether the defendant owes the plaintiff a duty of 

reasonable care. Freeman, 744 S.W.2d at 923-24 (explaining that three 

factors guide the “determin[ation] whether the accident and harm was 

reasonably foreseeable” and thus “whether defendant owes plaintiff a 

duty of due care”); Kaufman v. Miller, 414 S.W.2d 164, 168 (Tex. 1967) 

(describing traditional notions of foreseeability and duty as important 

limitations on bystander recovery); see Keith, 970 S.W.2d at 542 

(“[W]hen the material facts are undisputed, as they are here, whether 

the plaintiff is entitled to recover as a bystander is a question of law.”).3 

3 See also City of Tyler v. Likes, 962 S.W.2d 489, 495-96 (Tex. 1997) 

(“[T]here are some categories of cases in which the problems of foreseeability 

and genuineness are sufficiently mitigated that the law should allow recovery 

for anguish. . . . [W]e permit recovery for mental anguish in only a few types of 

cases involving injuries of such a shocking and disturbing nature that mental 

anguish is a highly foreseeable result. These include suits for wrongful death 

. . . and actions by bystanders for a close family member’s serious injury.”); 

Parkway Co., 901 S.W.2d at 442 (“[O]nce particularly disturbing events were 
10

The reasons underlying our decision to allow bystander recovery 

instead of recognizing a broader claim for negligent infliction of 

emotional distress support this understanding of shock as a component 

of the legal duty analysis. We permit recovery of mental anguish 

damages without an accompanying physical manifestation in “cases of 

intentional torts, gross negligence, or a willful and wanton disregard for 

another’s rights” or when “the nature of the tort alleged assures courts 

of the genuineness of mental anguish claims, even without resort to 

proof of physical manifestation.” Moore v. Lillebo, 722 S.W.2d 683, 685 

(Tex. 1986). Because bystanders can recover damages for mental 

anguish only “after witnessing a close relative suffer a traumatic injury 

because of a defendant’s negligent action,” their claims often carry that 

assurance. See Edinburg Hosp. Auth., 941 S.W.2d at 80 (observing that 

bystander may recover for mental anguish in cases of “serious or fatal 

injury”). But a defendant is liable for those damages only “because we 

recognize that there are certain situations in which a tortfeasor will owe 

a bystander a duty of care beyond that owed to the public in general.” 

Id. 

proved by reference to objective phenomena or conditions, the law generally 

allowed the claimant’s mental suffering to be presumed to flow from such 

events.”); Carey v. Pure Distrib. Corp., 124 S.W.2d 847, 849 (Tex. 1939) 

(defendant who knew its truck’s sideboard fastener was defective should have 

foreseen cans of oil would be thrown off the truck, hitting others nearby, but 

bystander’s miscarriage after witnessing someone hit by a can was not a

foreseeable type of injury); Landreth v. Reed, 570 S.W.2d 486, 489 (Tex. App.—

Texarkana 1978, no writ) (bystander recovery for negligent infliction of 

emotional distress is “determined upon the traditional concepts of negligence 

and proximate cause based upon reasonable foreseeability”). 
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The three factors—including shock—help courts evaluate this 

duty question: whether it would be reasonably foreseeable to a negligent 

defendant that someone in the bystander-plaintiff’s position would 

suffer mental anguish as a result of the defendant’s negligence. 

Freeman, 744 S.W.2d at 924 (applying factors to determine whether 

accident and harm were reasonably foreseeable).4 Thus, “shock” is not 

a distinct mental or emotional condition about which a jury must make 

a factual determination in bystander cases. Instead, the shock factor 

directs courts to distinguish between a plaintiff who suffered a direct 

emotional impact from contemporaneously observing an accident and a 

plaintiff who learned of it later. As explained above, asserting a direct 

emotional impact and seeking damages for mental anguish alone does 

not place a plaintiff’s mental condition in controversy. Coates, 758 

S.W.2d at 753. If a court applying these factors determines that a duty 

is owed, the plaintiff must prove the nature, duration, and severity of 

her mental anguish to recover damages as in any other case.

Second, even if “shock” were a distinct condition, Richardson is 

incorrect that the records it requested from late 2019 to the present are 

relevant to E.B.’s mental condition at the time of her brother’s death in 

2016. See TEX. R. EVID. 509(e)(4), 510(d)(5) (requested “communication 

or record” must be “relevant to th[e] condition”). Medical or mental 

health care records will be relevant to a mental condition at issue when 

4 See generally Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 

(Tex. 2010) (“Whether a duty exists is a question of law for the court and turns 

on a legal analysis balancing a number of factors, including the risk, 

foreseeability, and likelihood of injury . . . .” (internal quotation marks 

omitted)).
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the condition is “so central as to require the jury, as part of its 

determination of the claim or defense, to ‘make a factual determination 

concerning the condition [itself]’” as it existed at the time the 

bystander-plaintiff experienced the allegedly shocking, traumatic event. 

In re Morgan, 507 S.W.3d 400, 404 (Tex. App.—Houston [1st Dist.] 2016, 

orig. proceeding) (quoting R.K., 887 S.W.2d at 843). Richardson does not 

explain how records from three or more years after the accident are 

relevant to whether the accident had a direct emotional impact on E.B. 

For these reasons, we reject Richardson’s position that its request 

for E.B.’s psychological records beginning in late 2019 falls within the 

patient-condition exceptions on the ground that the records are relevant 

to whether E.B. suffered a mental condition of “shock” when witnessing 

the tragedy years earlier that must be found by a jury. Because this 

position provides no basis for concluding that the court of appeals erred 

in granting mandamus relief from the trial court’s discovery order, we 

turn to Richardson’s other arguments.

II. E.B. is relying on her mental or emotional condition to 

prove mental anguish damages.

Richardson next contends that the patient-condition exceptions 

apply because E.B. designated her treating psychologist and 

pediatrician as testifying experts, which shows that her mental or 

emotional condition carries legal significance and relevance. Richardson 

points to R.K., in which we explained that a patient’s mental health care 

records are subject to discovery if a legal consequence flows from the 

patient’s mental or emotional condition, but not if that condition is an 

evidentiary or intermediate issue of fact or merely tangential to a claim. 
13

887 S.W.2d at 842-43. E.B.’s own choice to designate her treating 

psychologist and pediatrician as testifying experts, Richardson argues, 

demonstrates that her mental condition is central to her claim rather 

than tangential to it. 

The court of appeals disagreed, concluding from the pleadings 

that “E.B. has made nothing more than a pedestrian request for mental 

anguish damages of the kind that ordinarily would flow from her injury 

in the vehicle rollover accident and her contemporaneous perception of 

her brother’s death.” 655 S.W.3d at 672. The court noted that because 

routine allegations of mental anguish do not make a plaintiff’s mental 

condition a part of her claim, E.B.’s mental anguish carries no legal 

significance, which “ends the inquiry in considering the 

patient-[condition] exception to rules of evidence 509 and 510.” Id. at 

672-73. It did not address the impact of E.B.’s expert designations on 

the applicability of the exceptions, concluding only that the designations 

were not a waiver of privilege by offensive use. Id. at 675.5 In this Court, 

E.B. further argues that the expert designations do not change the 

analysis because she no longer intends to call them at trial.

We agree with Richardson. As explained above, Texas courts 

have not required plaintiffs to provide expert testimony to recover on a 

5 In some cases where a plaintiff alleges mental anguish damages and 

seeks to prove them with expert medical or psychological testimony, the 

experts’ records might be discoverable under the offensive-use doctrine. But 

Richardson has disclaimed that doctrine as a basis for avoiding the privilege 

in this case, and in any event its requirements do not appear to be met here 

because Richardson does not explain how the failure to disclose E.B.’s records 

“would be outcome determinative of the cause of action asserted.” Republic 

Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993) (outlining factors for 

determining whether offensive-use doctrine applies).
14

negligence claim seeking mental anguish damages. See Parkway Co., 

901 S.W.2d at 444. But a plaintiff who consults a physician or other 

professional for the “diagnosis, evaluation, or treatment of [a] mental or 

emotional condition” can make that condition “part of [her] claim” by 

“relying on” it to help prove her mental anguish. TEX. R. EVID. 

510(a)(2)(A), (b)(1)(B), (d)(5); see id. R. 509(c)(2), (e)(4). In such cases, 

treatment records “relevant to th[e] condition” are discoverable, id. R.

509(e)(4), 510(d)(5)—not as a matter of offensive-use waiver, but under 

the terms of the exceptions themselves. See R.K., 887 S.W.2d at 841 

(“[T]he offensive use doctrine is independent from and unrelated to the 

privilege exception . . . stated in Rules 509(d)(4) and 510(d)(5).”).6

Here, E.B. designated her psychologist and pediatrician, Drs. 

Kittay and Rani, as expert witnesses who “will testify regarding the 

injuries sustained by [E.B.] as well as the cause of those injuries, and 

the medical treatment provided to treat those injuries.” Because this 

designation shows that she is relying on their diagnosis, evaluation, or 

treatment of her condition as a part of her claim, she cannot invoke the 

privilege to shield their mental health care records relevant to that 

condition from discovery. E.B.’s mental condition is “tied in a 

6 Similarly, discovery available under the exceptions is independent of 

discovery from testifying experts allowed by Texas Rule of Civil Procedure 

192.3(e). See generally In re City of Dickinson, 568 S.W.3d 642, 646 (Tex. 2019) 

(addressing interplay of privilege rule and expert-discovery rule). Our record 

does not reveal a request for discovery under Rule 192.3(e), which may be 

obtained “only by oral deposition of the expert and by a report prepared by the 

expert.” TEX. R. CIV. P. 195.4; see In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 

814 (Tex. 2017) (“Importantly, a party is limited in the tools available to 

discover information concerning expert witnesses, even though the information 

may otherwise be within the scope of testifying-expert discovery.”). 
15

meaningful way to the legal consequences of [her] claim” through her 

choice to use Drs. Kittay and Rani as testifying experts. R.K., 887 

S.W.2d at 842. Several decisions support this conclusion.

In Coates, we observed that a party’s mental condition is not in 

controversy when the party “has not sought any type of psychiatric 

treatment as a result of the incident and, equally important, does not 

propose to offer psychiatric or psychological testimony to prove mental 

anguish at trial.” 758 S.W.2d at 752.7 And Midkiff v. Shaver addressed 

how this observation applies to the privilege exceptions at issue here. 

788 S.W.2d 399, 402-03 (Tex. App.—Amarillo 1990, orig. proceeding). 

The Midkiff court explained that although the plaintiff’s allegation of 

mental anguish itself did not place her mental condition in issue, she 

had “sought medical attention for some of the symptoms of her mental 

anguish” and for “physical manifestations” of her mental anguish, 

thereby establishing “a connection . . . between her mental anguish 

complaint and the medical attention she sought.” Id. Thus, “so long as 

she seeks damages by relying upon the symptoms of mental anguish for 

which she sought medical attention” and “pursue[s] [her] claim for 

mental anguish with the described physical manifestations,” she 

7 See also Laub v. Millard, 925 S.W.2d 363, 365 (Tex. App.—Houston 

[1st Dist.] 1996, orig. proceeding) (“Because [plaintiff] intends to use expert 

medical testimony from Dr[s]. Pesikoff and Justice to prove her alleged 

incompetence, she has placed her mental condition in controversy.”); In re 

Transwestern Publ’g Co., L.L.C., 96 S.W.3d 501, 507 (Tex. App.—Fort Worth 

2002, orig. proceeding) (holding nature of discovery responses and designations 

of treating experts made “mental anguish a central issue in the case”); In re 

Doe, 22 S.W.3d at 606 (distinguishing between emotional distress 

accompanying personal injury and mental condition warranting psychological 

evaluation).
16

“cannot use her invoked privileges as a shield to prevent discovery of 

medical and mental health records related to” those conditions. Id. 

Many federal courts agree that mental health care records are 

discoverable when the plaintiff “take[s] the affirmative step in the 

litigation to place his diagnosis or treatment in issue, by offering 

evidence of psychiatric treatment or medical expert testimony to 

establish his claim of emotional harm.” Merrill v. Waffle House, Inc., 

227 F.R.D. 467, 474-75 (N.D. Tex. 2005) (explaining view that mental 

diagnosis is in issue when plaintiff offers evidence of psychiatric 

treatment or medical expert testimony to establish emotional harm).8 

We note, however, that this analysis typically applies only to conditions 

that follow or could have arisen from the occurrence at issue; the 

existence or treatment of pre-existing mental or emotional conditions 

usually is not part of a claim or defense for purposes of the 

patient-condition exceptions.9 

8 See also Fitzgerald v. Cassil, 216 F.R.D. 632, 638-39 (N.D. Cal. 2003) 

(holding privilege was maintained due to plaintiff’s proper stipulation that he 

would not rely on any treating provider to prove emotional distress); Adams v. 

Ardcor, 196 F.R.D. 339, 343 (E.D. Wis. 2000) (“[A] party cannot inject her 

psychological treatment, conditions or symptoms into a case and expect to be 

able to prevent discovery of information relevant to those issues.”); Hucko v. 

City of Oak Forest, 185 F.R.D. 526, 529 (N.D. Ill. 1999) (holding records 

discoverable when plaintiff takes “affirmative step in the litigation” to place 

emotional harm in issue); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 230 

(D. Mass. 1997) (explaining records are no longer privileged if plaintiff “use[s] 

the substance of her communication, by calling her psychotherapist as a 

witness, for example, or by testifying to the substance of the communication 

herself”).

9 See Coates, 758 S.W.2d at 752 (“Mrs. Coates’ prior problems are clearly 

peripheral to the issues in this case, and, consequently, they are not ‘in 

controversy.’ . . . Mrs. Coates’ prior problems and attendant complaints of 
17

We are aware of E.B.’s statements that she no longer intends to 

rely on Drs. Kittay and Rani to prove that her mental anguish stems 

from a mental or emotional condition for which they have treated her. 

But the rules provide that “[a]n amended or supplemental response 

must be in the same form as the initial response.” TEX. R. CIV. P.

193.5(b). The record before us does not disclose that E.B. amended or 

supplemented her designation to remove her treating providers as 

testifying experts. Thus, E.B.’s designation is the type of “affirmative 

step in the litigation” that “place[s] h[er] diagnosis or treatment in 

issue.” Merrill, 227 F.R.D. at 475. 

Finally, Richardson asserts that the court of appeals should not 

even have reached the question whether the patient-condition 

exceptions apply because E.B.—as relator in the court of appeals—did 

not provide a full mandamus record by requesting that the trial court 

forward the documents it inspected in camera to the court of appeals 

under seal. See TEX. R. APP. P. 57.2(a)(1) (placing burden on relator to 

file with petition “a certified or sworn copy of every document that is 

material to the relator’s claim for relief and that was filed in any 

underlying proceeding”). Although we agree it was E.B.’s obligation to 

do so, any uncertainty regarding the records inspected in camera does 

depression are distinct from the mental anguish she claims as a result of her 

injury.”); Nance, 143 S.W.3d at 512 (“The fact that a plaintiff had past mental 

problems is distinct from the mental anguish associated with a personal injury 

or loss; a tortfeasor takes a plaintiff as he finds him or her.”); Chambers, 2002 

WL 1378132, at *4 (“That the plaintiff had past mental problems or complaints 

of depression is ‘peripheral’ to determining what is ‘in controversy.’”).
18

not affect our holding that E.B.’s expert designations show she is relying 

on her condition as part of her claim.

For these reasons, the trial court did not abuse its discretion in 

ordering production of records regarding E.B.’s mental or emotional 

condition insofar as they are relevant to her claim for mental-anguish 

damages, and the court of appeals erred in concluding that those records 

were privileged.10 See Christianson, 639 S.W.3d at 681 (“If the trial 

court did not abuse its discretion, then the court of appeals erred in 

granting mandamus relief.”). Because of its holding, the court of appeals 

did not reach E.B.’s arguments that the ordered production was overly 

broad because it included records irrelevant to that claim and did not 

permit redaction of irrelevant portions of records that do contain some 

relevant information. We address the scope of production in Part IV 

below.

III. Richardson is relying on E.B.’s mental or emotional 

condition as part of its defense that her anguish had 

post-accident causes.

Richardson next argues that E.B.’s mental condition is part of its 

defense because it alleged in its answer that her mental anguish 

damages were caused by post-accident “intervening, superseding, sole, 

10 As explained in Part IV below, the trial court will be conducting 

further proceedings to determine the proper scope of production. The parties 

have not addressed, and we do not decide, whether the same portions of E.B.’s 

records would remain relevant and discoverable under this theory if she were 

to amend her petition to alter the time period for which she seeks mental 

anguish damages or amend her designation to remove her providers as 

testifying experts prior to the court’s ruling. Nor do we decide whether the 

same portions of her records are relevant and discoverable under other theories 

discussed elsewhere in this opinion.
19

and/or new and independent causes.” It specifically asserts that E.B.’s 

mental anguish was caused in whole or part by E.B.’s parents’ divorce, 

E.B.’s estrangement from Mother, and alleged sexual abuse of E.B. by 

her stepfather. Richardson explains that the post-accident alternative 

causes are relevant to its defense because the jury could attribute at 

least “some of E.B.’s mental or emotional distress to one or more of these 

causes” and award a reduced amount of damages. Although Richardson 

raised this argument in the court of appeals, that court did not address 

it.

E.B. responds by arguing that a patient’s mental condition is only 

of “legal consequence” under R.K. when the condition is outcome 

determinative of liability—that is, caused the injury—or when it exceeds 

the common emotional reaction to a tragic event. She reasons that any 

post-accident anguish attributable to third parties is not a fact of legal 

significance but an inferential rebuttal issue, so her records remain 

privileged. 

A trial court confronted with such arguments regarding whether 

a patient’s mental condition is part of a party’s defense should begin by 

examining the pleadings and then, if necessary, consider the allegedly 

privileged records. More specifically, when a party raises a 

patient-condition exception as a basis for discovering allegedly 

privileged records, disputed questions for the trial court to consider may 

include: (1) whether the patient consulted a physician or other 

professional and claims that the records of that consultation are 

privileged, thus indicating that the “diagnosis, evaluation, or treatment” 

of a “physical, mental, or emotional condition” or “disorder” may be at 
20

issue; (2) whether the pleadings indicate that a party “relies on” such a 

condition as “part of” its claim or defense; and (3) whether an in camera 

review of the records confirms that they address such a condition and 

shows that the professional’s records are “relevant to” the relied-upon 

condition. See TEX. R. EVID. 509(c)(2), (e)(4), 510(a)(1)(A), (b)(1)(B), 

(d)(5).

Regarding the second question, a court should determine from the 

pleadings—without referencing the allegedly privileged records—

whether a condition is a part of a claim or defense. R.K., 887 S.W.2d at 

843. If, for example, a defendant’s pleadings allege in good faith that a 

plaintiff’s post-accident mental or emotional condition was an 

alternative cause of the mental anguish for which the plaintiff now seeks 

damages, then the plaintiff’s condition will be of legal consequence to 

the defense as a “fact to which the substantive law assigns significance.” 

Id. at 842.

As to the third question, the trial court conducts an in camera 

inspection to determine whether “the communication or record is 

relevant to” the alleged condition on which the party relies as part of its 

claim or defense. TEX. R. EVID. 509(e)(4), 510(d)(5). For example, if a 

defendant alleges that the plaintiff has mental or emotional conditions 

that are alternative post-accident causes of her mental anguish but the 

plaintiff’s allegedly privileged records reveal nothing about the 

diagnosis, evaluation, or treatment of those particular conditions, then 

the records are not relevant to the conditions alleged as a defense. 

Similarly, if the records address the post-accident diagnosis, evaluation, 

or treatment of a physical, mental, or emotional condition that does not 
21

correspond to the alternative causes alleged by the defendant, the 

records are not relevant to the condition alleged.

Applying this approach here, E.B. contends that the records of her 

psychological treatment by her pediatrician and clinical psychologist are 

privileged, which suggests that a mental or emotional condition is at 

issue. On the second question, Richardson alleged in its answer that 

E.B.’s damages “were the result of actions of third parties over whom 

[Richardson] did not have control” or “were caused by a new and 

independent cause not reasonably foreseeable by [Richardson]” that 

“became the immediate and efficient cause of injury.” Thus, it pleaded

“the defenses of Intervening Cause, New and Independent Cause, 

Superseding Cause and Sole Proximate/Producing Cause.” Further, in 

its response to the motions to quash, Richardson explained that the 

limited evidence and records it had received to date revealed that E.B. 

was being seen for emotional and mental conditions unrelated to her 

brother’s death. And as noted above, the record shows potential thirdparty causes of those conditions following the accident.

This defense that E.B. suffered anguish resulting from 

post-accident mental or emotional conditions caused by third parties 

makes E.B.’s mental or emotional condition “a fact to which the 

substantive law assigns significance” under R.K. because it affects E.B.’s 

recoverable damages. As a bystander, E.B.’s recovery is limited to 

compensation for mental anguish caused by witnessing her brother’s 

death; Richardson is not liable for any anguish aggravated by mental or 

emotional conditions resulting from other post-accident traumas E.B. 

may have endured. 
22

Turning to the third question, we note that the trial court has 

forwarded to this Court under seal the documents it reviewed in camera. 

Although those documents were not before the court of appeals, which 

thus did not address this issue, the focus of our review is “on the trial 

court’s order.” Christianson, 639 S.W.3d at 681. Accordingly, we have 

reviewed the sealed records and confirmed that some of them do involve 

the diagnosis, evaluation, or treatment of a post-accident mental or 

emotional condition that may have contributed to E.B.’s mental anguish. 

More than once, the records discuss psychological disorders E.B. 

developed due to conflicts with her mother and her parents’ divorce. The 

records also include treatment plans and evaluative progress notes 

regarding those conditions.

For these reasons, we conclude that the trial court acted within 

its discretion in ordering discovery of records regarding E.B.’s mental or 

emotional condition insofar as they are relevant to Richardson’s defense, 

and the court of appeals erred in concluding that those records were 

privileged. See id. (“If the trial court did not abuse its discretion, then 

the court of appeals erred in granting mandamus relief.”). Because of 

its holding, the court of appeals did not reach E.B.’s arguments that the 

ordered production was overly broad because it included records 

irrelevant to that defense and did not permit redaction of irrelevant 

portions of records that contain some relevant information. We address 

that issue next.
23

IV. Further proceedings are necessary to determine the 

proper scope of production.

Both Richardson and E.B. raise additional arguments regarding 

the proper scope of production. First, Richardson argues that E.B.’s 

records are discoverable because she waived the privilege by voluntary 

disclosure of earlier psychological treatment records. Further trial court 

proceedings are necessary to determine which records are discoverable 

under each rule on which Richardson relies.

Second, E.B. has argued that the request for production was 

overbroad and that the trial court failed to redact irrelevant material 

before ordering production—issues the court of appeals did not address 

given its disposition. Once the trial court determines which records 

include information that is not privileged under each of the rules 

discussed in this opinion, the parties may, if needed, seek the trial 

court’s guidance regarding appropriate redactions of irrelevant 

information in those records. 

A. Any privilege covering portions of E.B.’s 

psychological records may have been waived.

Richardson argues that to the extent any records it requested do 

not fall within the patient-condition exceptions to the privileges, those 

privileges have been waived because E.B. permitted and complied with 

a co-defendant’s discovery requests for her psychological treatment 

records from Drs. Kittay and Rani through late 2019. The court of 

appeals did not address this issue, and it is unclear whether it makes 

any difference to the bottom-line question of which parts of the records 

should be produced. 
24

Privilege is waived when the privilege holder “voluntarily 

discloses or consents to disclosure of any significant part of the 

privileged matter unless such disclosure itself is privileged.” TEX. R.

EVID. 511(a)(1). This rule “allows a partial disclosure of privileged 

material to result in an implied waiver of the privilege as to additional 

material that has not been disclosed” if the partial disclosure 

represented a significant part of the privileged material. In re 

Alexander, 580 S.W.3d 858, 869 (Tex. App.—Houston [14th Dist.] 2019, 

orig. proceeding).

As discussed above, this Court has before it the documents that 

the trial court reviewed in camera. Some of those documents are dated 

before late 2019, suggesting they were part of the voluntary production 

to Richardson’s co-defendant. But at oral argument, Richardson and 

E.B. agreed that it is unclear whether the trial court had before it all the 

earlier records that were produced voluntarily. Thus, the trial court 

could not determine—and this Court cannot review—whether the 

voluntarily produced records were a “significant part of the privileged 

matter” Richardson now seeks to discover. TEX. R. EVID. 511(a)(1). 

Neither party has taken a clear position on whether any discovery 

of records available on a privilege-waiver theory would be broader, 

narrower, or the same as discovery available under the privilege 

exceptions addressed above. Of course, any discovery—regardless of 

whether privilege has been waived or an exception applies—must be 

“relevant” to a “claim” or “defense” under both our general discovery 

standard and the patient-condition exceptions, and medical-record 

discovery must be “reasonably related to the injuries or damages 
25

asserted.” TEX. R. CIV. P. 192.3(a), 194.2(b)(10); see also TEX. R.

EVID. 509(e)(4), 510(d)(5). If Richardson believes that its 

privilege-waiver theory entitles it to discovery of additional portions of 

these records not available under our privilege-exception holdings 

above, it may pursue this theory in the trial court.

B. Production must be narrowly tailored to parts of the 

records addressing a condition that is part of the 

claim or defense.

E.B. contends that Richardson’s discovery request for “all 

psychological treatment records” from late 2019 to the present is 

overbroad and that the trial court abused its discretion by ordering 

production of all records without allowing her to redact portions not 

relevant to a claim or defense, which remain privileged. Once the trial 

court has determined which portions of the records are relevant to a 

mental or emotional condition that is part of E.B.’s claim of mental 

anguish stemming from the accident or Richardson’s defense of anguish 

stemming from third-party causes, we agree with E.B. that, if the 

parties cannot reach agreement on appropriate redactions, the trial 

court must ensure that only relevant portions of the records are 

produced.11 

Orders compelling overbroad discovery represent an abuse of 

discretion for which mandamus is the appropriate remedy. In re Deere 

& Co., 299 S.W.3d 819, 820 (Tex. 2009). “[A]n overbroad discovery 

request is, in essence, one that seeks irrelevant information.” In re UPS 

11 Whether any information produced will be admissible at trial is a 

separate question on which we express no opinion. See TEX. R. CIV. P. 192.3(a).
26

Ground Freight, Inc., 646 S.W.3d 828, 832 (Tex. 2022).12 When a 

patient-condition exception applies because a physical, mental, or 

emotional condition is a “part” of a party’s claim or defense, we have 

emphasized that courts “reviewing documents submitted in camera . . . 

must ensure” that “patient records [are] revealed only to the extent 

necessary to provide relevant evidence relating to the condition alleged.” 

R.K., 887 S.W.2d at 843; see Groves, 874 S.W.2d at 661 (“A trial court’s 

order compelling release of medical records should be restrictively 

drawn so as to maintain the privilege with respect to records or 

communications not relevant to the underlying suit.”).13 In addition, 

“[e]ven when a party seeks information that is relevant and not 

privileged, courts should” apply a “proportionality overlay” by 

“impos[ing] reasonable discovery limits, particularly when the burden 

or expense of the proposed discovery outweighs its likely benefit.” In re 

K&L Auto Crushers, LLC, 627 S.W.3d 239, 248 (Tex. 2021) (internal 

quotation marks omitted).

12 See also Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) 

(holding that “request for all documents authored by [a person] on [a general 

subject], without limitation as to time, place, or subject matter, is overbroad” 

because it is not “reasonably tailored to include only matters relevant to the 

case”). 

13 See also, e.g., In re Scherer, 684 S.W.3d 875, 885 (Tex. App.—Eastland 

2024, orig. proceeding) (explaining that defendant narrowly tailored requests 

by making “clear that medical information is sought only if it is indicative of 

[plaintiff’s] treatment for conditions, if any, which he claims to have suffered 

as a result of [defendant’s] conduct. Thus, if [plaintiff] is not asserting a claim 

here regarding a particular physical or mental condition for which he has 

received treatment, then no information could be sought or would need to be 

produced.”).
27

For these reasons, courts “should be sure that the . . . records 

disclosed are closely related in time and scope to the claims [and 

defenses], so as to avoid any unnecessary incursion into private affairs.” 

R.K., 887 S.W.2d at 843 (internal citation omitted). And “[e]ven when a 

document includes some information meeting this standard, any 

information not meeting this standard remains privileged and must be 

redacted or otherwise protected.” Id.14 For example, the trial court 

should allow redaction of portions of the records relevant to pre-accident 

conditions or physical conditions. It should also allow redaction of 

portions not relevant to the diagnosis, evaluation, or treatment of the 

particular mental or emotional conditions discussed above that are part 

of E.B.’s claim or Richardson’s defense.15 

CONCLUSION

Because E.B.’s mental or emotional conditions are part of her 

claim and Richardson’s defense, the privileges she asserts do not prevent 

discovery of her mental health care treatment records relevant to those 

conditions. We therefore conditionally grant Richardson’s petition for 

14 See also Republic Ins. Co., 856 S.W.2d at 163 n.10 (“If the

communication goes beyond issues dealing with the affirmative relief sought 

[or the defense], the trial court should redact any part of the privileged 

communication that does not relate to [those matters].”).

15 See TEX. R. CIV. P. 192.3(a), 194.2(b)(10); TEX. R. EVID. 509(e)(4), 

510(d)(5); In re Am. Optical Corp., 988 S.W.2d 711, 712 (Tex. 1998) (noting that 

discovery request is overbroad when not “tied to” particular subjects and time 

periods in dispute); Coates, 758 S.W.3d at 752-53 (explaining that plaintiff’s 

“prior [personal] problems and attendant complaints of depression are distinct 

from the mental anguish she claims as a result of her injury” and that an 

“allegation of mental anguish or emotional distress [alone] does not place the 

party’s mental condition in controversy”). 
28

writ of mandamus, direct the court of appeals to vacate its mandamus 

order, and instruct the trial court to conduct further proceedings to 

determine which parts of the records are available under each rule 

asserted. 

 

J. Brett Busby 

 Justice 

OPINION DELIVERED: May 10, 2024