United States District Court, D. Vermont
OPINION AND ORDER REGARDING PLAINTIFF'S MOTIONS TO QUASH AND MOTIONS FOR PROTECTIVE ORDERS
(DOCS. 124, 128, 129)
WILLIAM K. SESSIONS, III, District Judge.
Pending before the Court are three motions filed by pro se Plaintiff, Matthew Gabriel, pertaining to depositions and document production sought by Defendants Albany College of Pharmacy and Health Sciences - Vermont Campus ("ACPHS"), Professor Dorothy Pumo, Ronald A. DeBellis, Dean Robert Hamilton, Assistant Professor Joanna Schwartz, Jason Long, Melissa Long, Professor Stefan Balaz, President Dr. James J. Gozzo, Associate Dean John Denio, Dr. Peter Cornish, Professor Gail Goodman Snitkoff, and Gerald Katzman (collectively, "ACPHS Defendants").
Gabriel's suit arises from his tenure as a student at the Vermont campus of ACPHS. Gabriel's Second Amended Complaint(Doc. 58) names ACPHS together with several of its administrators, professors, students, and General Counsel, (the remaining ACPHS Defendants), alleging Federal discrimination claims brought pursuant to 42 U.S.C. § 1981 and Federal Title VI, 42 U.S.C. § 2000d, et seq. All other claims, including Gabriel's state law claims, have been dismissed. (Doc. 70.) Gabriel alleges that physical and psychological harm resulted from Defendants' discriminatory conduct, as well as lost wages and other economic damages. (Doc. 58 at 38-39.)
Gabriel now moves to quash several deposition subpoenas ad testificandum and duces tecum issued by Defendants ordering Gabriel's mental health providers (Marissa Robbins, LMHC, Dr. Richard W. Ober, M.D., and Dr. Sachin Phansalkar, M.D.) to appear and give testimony on July 9, 2014 and to produce copies of Gabriel's mental health treatment records. (Docs. 124 and 129.) Gabriel also seeks protective orders "to prevent the defendants from attempting to obtain plaintiff's medical records in the future, in violation of the plaintiff's medical privileges." Id . Additionally, Gabriel moves for a protective order and to quash Defendants' Notice of Deposition for Gabriel's own deposition in Providence, Rhode Island on July 14, 2014 (Doc. 128.)
I. Plaintiff's Motions to Quash Subpoenas and Motions for Protective Orders with Respect to Mental Health Treatment Provider Depositions
Gabriel's pending motions to quash the subpoenas issued to Ms. Robbins and Dr. Ober (Doc. 124) and Dr. Phansalkar (Doc. 129) are brought pursuant to Fed.R.Civ.P. 45 (d)(3)(A), and the accompanying motions for protective orders limiting discovery of his treatment records are brought pursuant to Fed.R.Civ.P. 26(c).
Under Rule 45, the Court "must quash or modify a subpoena that... requires disclosure of privileged or other protected matter, if no exception or waiver applies...." Fed.R.Civ.P. 45. Rule 26(c) provides that, "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense" and authorizes the Court to issue orders narrowing the time, scope, and manner of discovery. See Fed.R.Civ.P. 26(c)(1).
Gabriel argues that the material sought by Defendants is protected by the psychotherapist-patient privilege, "HIPAA laws, " and the civil rules. He also argues that ordering his providers to produce treatment records is unnecessary and imposes an undue burden because he has already produced the records in question. Gabriel has filed with the Court documents purporting to constitute all of the treatment records created by Ms. Robbins and Mr. Ober. (Doc. 124, Exhibits G and L.) Defendants argue that Gabriel waived any privilege he may have with respect to his communications with these providers by placing his psychological condition at issue and alleging that psychological harm resulted from Defendants' conduct. (Doc. 127.)
Federal Rule of Evidence 501 provides that claims of privilege are governed by federal common law, unless superceded by federal statutory or constitutional law or if "state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." See Fed.R.Evid. 501. Because Gabriel's remaining causes of action arise under federal law, federal common law applies to Gabriel's privilege claim.
The United States Supreme Court has recognized a "psychotherapist-patient privilege" which protects "confidential communications made to licensed psychiatrists and psychologists." Jaffee v. Redmond , 518 U.S. 1, 15 (1996); see also Forunati v. Campagne , No. 1:07-CV-143, 2009 WL 1350406 at *2 (D. Vt. May 12, 2009). The Jaffee court also acknowledged that, "[l]ike other testimonial privileges, the patient may of course waive the protection." Id . at 15 n. 14.
A waiver of psychotherapist-patient privilege may be express or implied. See Sims v. Blot , 534 F.3d 117, 132 (2d Cir. 2008). Implied waiver can occur where a plaintiff places his medical condition directly at issue in the litigation. See Schoffstall v. Henderson , 223 F.3d 818, 823 (8th Cir. 2000); see also Sidor v. Reno , No. 95 Civ. 9588(KMW) 1998 WL 164823 at *2 (S.D.N.Y. April 7, 1998) (where mental state at issue, opponent entitled to inquire into present and past communications between psychotherapist and patient). The Second Circuit has adopted a narrow view of implied waiver, requiring that the plaintiff's claim extend beyond more than a "garden variety" claim for emotional distress or so-called "pain and suffering" damages. Sims , 534 F.3d at 133-35. However, where the plaintiff seeks compensation for "serious psychological injuries, " he generally is deemed to have waived the privilege. Kunstler v. City of New York , No. 04CIV1145(RWS)(MHD), 2006 WL 2156625 *7 (S.D.N.Y. Aug. 29, 2006) (compiling cases).
Here, Gabriel alleges that Defendants' conduct caused or "triggered" a generalized anxiety disorder, which he also relates to his economic damages claim because the condition impeded his ability to pursue his pharmacy degree. (Doc. 124 at 3.) Unlike a non-specific claim for "emotional harm" or "pain and suffering, " Gabriel alleges that he now suffers from a diagnosed mental health condition that is causally-connected to Defendants' conduct. By placing his mental health diagnosis and its source at issue, Gabriel waived any psychotherapist-patient privilege that might otherwise arise from his treatment relationships with Ms. Robbins, Dr. Ober, and Dr. Phansalkar. Furthermore, Gabriel expressly waived the privilege when he filed his treatment records with the Court and served copies on Defendants. See Tavares v. Lawrence and Memorial Hosp. , No. 3:11-CV-770, 2012 WL 4321961 (D. Ct. Sept. 20, 2012) (privilege expressly waived by providing release forms for mental health provider at issue).
To the extent Gabriel argues that appearing at a deposition or producing documents would subject these non-party witnesses to an "undue burden, " contrary to Fed.R.Civ.P. 45(d)(3)(A)(iv), he lacks standing to bring these arguments on their behalf. See Langford v. Chrysler Motors Corp. , 513 F.2d 1121, 1126 (2d Cir. 1975) ("In the absence of a claim of privilege a party usually does not have standing to object to a subpoena directed to a non-party witness.") (citation omitted).
Likewise, Gabriel has not shown good cause that a protective order limiting these non-party witnesses' deposition testimony is necessary to prevent "annoyance, embarrassment, oppression, or ...