United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION FOR PROTECTIVE
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Sandra
Holmes's motion for a protective order. Dkt. 17. The
Court has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants the motion for the reasons stated herein.
seeks to subpoena medical records from the Defendant's
psychotherapist and physician. Dkt. 18-1 at 2-3. The parties
conferred on March 20, 2018, in hopes of resolving their
dispute over discovery but were unsuccessful. As a result,
Defendant moves for a protective order from this Court,
pursuant to Fed. R. Civ. P 26 and 45. On March 28, 2018,
Plaintiff responded in opposition to the Defendant's
motion. Dkt. 21. Defendant replied to the opposition on March
30, 2018. Dkt. 23.
Rule of Civil Procedure 26(c) governs the issuance of
protective orders in civil matters. Litigants “may
obtain discovery regarding any matter, not privileged, that
is relevant to the claim or defense of any party.”
Surfvivor Media, Inc. v. Survivor Prods.,
406 F.3d 625, 635 (9th. Cir. 2005); Fed.R.Civ.P. 26(b)(1). A
court may enter a protective order denying such discovery
“to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense . . .
.” Fed.R.Civ.P. 26(c)(1). A party seeking a protective
order may override this presumption by demonstrating
“good cause” that the information should be
protected from public disclosure. Phillips ex rel.
Estates of Byrd v. General Motors Corp., 307 F.3d 1206,
1210 (9th Cir. 2002). District courts are vested with broad
discretion in determining whether a protective order is
appropriate and, if so, what degree of protection is
warranted. Seattle Times Co. v. Rhinehart, 467 U.S.
20, 36 (1984); Phillips ex rel. Estate of Byrd v. Gen.
Motors Corp., 307 F.3d 1206, 1211-12 (9th Cir. 2002).
Courts are required to modify or quash subpoenas that present
an undue burden or require the disclosure of privileged or
protected matter. Fed.R.Civ.P. 45(d)(3)(A). Whether a
subpoena imposes an undue burden depends on the relevance of
the information requested and the burden imposed. See
Rollins v. Traylor Bros., Inc., 2017 WL
1756576, at *2 (W.D. Wash. May 5, 2017).
Defendant seeks to protect her psychotherapy records with her
therapist, Tammy Tangen. Dkt 18-1 at 2. While the Defendant
invokes psychotherapist-patient privilege, Plaintiff argues
that the Defendant waived that privilege when she disclosed
the details of her treatment to apply for medical leave and
worker's compensation. Dkt. 21 at 9.
psychotherapist-patient privilege protects confidential
communications between a licensed psychotherapist and a
patient in the course of diagnosis or treatment. See
Jaffee v. Redmond, 518 U.S. 1, 15, 10-18 (1996). Records
of these types are protected from disclosure under Federal
Rules of Evidence 501. Id. Moreover, a court cannot
compel disclosure by balancing the need for information
against the patient's privacy rights. Adams v. BNSF
Ry. Co., 2014 WL 4415985, at *2 (E.D. WA. 2014) (citing
Jaffee, 518 U.S. at 17 (“Making the promise of
confidentiality contingent upon a trial 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”)).
However, a patient may waive the psychotherapist-patient
privilege by knowingly and voluntarily disclosing the
substance of her therapy sessions to unrelated third parties.
United States v. Bolander, 722 F.3d 199, 223 (4th
Plaintiff argues that the Defendant waived her privilege when
she previously disclosed her medical information to apply for
medical leave and worker's compensation. While the Ninth
Circuit has not explicitly ruled on this issue, district
courts have concluded that a party cannot selectively use his
or her psychotherapist's records to pursue monetary
benefits and then invoke the psychotherapist-patient
privilege in a separate matter to protect those records from
disclosure. See In re Grand Jury Investigation, 114
F.Supp.2d 1054, 1056 (D. Or. Sept. 15, 2000)
(“[submitting medical records in support of a claim for
monetary benefits] is no different than submitting medical
records to a tortfeasor's insurance carrier in connection
with a demand for damages associated with bodily injuries
caused by an automobile accident”); United States
v. Hudson, 2013 WL 4768084, at *4 (D. Kan. Sept. 5,
2013) (“Defendant made the tactical decision to
disclose information on confidential psychotherapy sessions
in an attempt to obtain disability benefits from the State of
Kansas. He cannot now invoke the psychotherapist-patient
privilege to bar the federal government from using the same
information to show that he committed a crime.”).
this standard, the Court finds that Plaintiff did not waive
privilege when she filed for medical leave in September 2013,
pursuant to the Family and Medical Leave Act. Although the
United States Department of Labor is an unrelated third party
to this action, Plaintiff disclosed her psychotherapy
information to treat or recover from an illness, not to seek
monetary benefits. Accordingly, such a disclosure does not
show that Plaintiff is improperly using assertions of
privilege as both a “sword and shield.”
Vanderbilt v. Town of Chilmark, 174 F.R.D. 225,
229-30 (D. Mass. 1997) (holding that the
psychotherapist-patient privilege is waived “if
communication between the two is put at issue by the patient,
for example, where the cause of action relies on advice or
findings of the psychotherapist. Under this measure of
fairness, waiver prevents the privilege from being used as
both a sword and a shield.”).
the Court is convinced that Defendant Sandra Holmes waived
her psychotherapist-patient privilege, at least to some
extent, when she filed for worker's compensation with the
State of Washington. Defendant listed her psychotherapist,
Tammy Tangen, as a “Miscellaneous” party on her
worker's compensation claim. Dkt. 21-1 at 60.
Additionally, communications regarding Defendant Sandra
Holmes's worker's compensation claim make clear that
her worker's compensation claim was predicated on
psychological trauma and that it therefore disclosed and
“relie[d] on advice or findings of the
psychotherapist.” Fitzgerald v. Cassil, 216
F.R.D. 632, 637 (N.D. Cal. 2003). Dkt. 21-1 at 57, 59, 62.
Nonetheless, the Court notes that the Department of
Labor's “Order and Notice” form that the
Plaintiff offers is very limited as to what evidentiary value
it provides, other than the fact that Defendant's
worker's compensation claim was denied to the extent it
claimed compensation for anxiety that was the result of a
preexisting medical condition, not a work place injury.
Although Tammy Tangen's name and address appear on the
order, it is unclear to what extent her privileged records
were offered to the Department of Labor in support of her
claim. Before the Court would order that the requested
discovery be produced, it would request supplemental briefing
regarding the extent to which her privileged information was
waived or whether the worker's compensation claim
constituted a wholesale waiver of the privilege. However,
such supplemental briefing is unnecessary at this time
because, as discussed below, the Court finds that the
requested protective order should be granted at present for
Defendant seeks to protect all medical records with her
physician, Dr. Brendon Hutchinson, under a claim of
privilege. “The physician-patient privilege is not
recognized by federal common law, federal statute, or the
U.S. Constitution.” Hutton v. City of
Martinez, 219 F.R.D. 164, 166 (N.D. Cal. 2003).
Plaintiffs note that Dr. Hutchinson is Defendant's
primary care physician who participated in the
Defendant's psychological treatment. Dkt. 21 at 9 n.34.
Thus, similar to records with Tammy Tangen, Plaintiffs argue
that Defendant waived any privilege she had over her medical
records with Dr. Hutchinson because she filed for
worker's compensation. Id. The Court finds that
such an argument is unnecessary here and the
psychotherapist-patient privilege is ...