United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's motion for a
protective order (Dkt. No. 28) and the parties' joint
submission regarding discovery pursuant to Local Civil Rule
37, which addresses Defendant's objection to one of
Plaintiff's proposed deposition topics (Dkt. No. 45).
Having thoroughly considered the parties' briefing and
the relevant record, the Court hereby DENIES Plaintiff's
motion for a protective order (Dkt. No. 28) and OVERRULES
Defendant's objection to Plaintiff's proposed
deposition topic (Dkt. No. 45) for the reasons explained
Court has already stated the facts of this case in a prior
order and will not repeat them here. (See Dkt. No.
40.) Presently before the Court are two discovery disputes.
(Dkt. Nos. 28, 45.) In the first, Plaintiff moves the Court
for a protective order regarding her medical records related
to her migraines and her mental health (the “Medical
History Dispute”). (Dkt. No. 28.) In the second,
Defendant asks the Court to sustain its objection to one of
Plaintiff's proposed Federal Rule of Civil Procedure
30(b)(6) deposition topics about Defendant's document
retention policies (the “Document Retention Policy
Dispute”). (Dkt. No. 45.)
Court strongly disfavors discovery motions and prefers that
parties resolve discovery disputes on their own.
“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” Fed.R.Civ.P. 26(b)(1). Relevant information is
“any matter that bears on, or that reasonably could
lead to other matter that could bear on, any issue that is or
may be in the case.” Oppenheimer Fund, Inc. v.
Sanders, 437 U.S. 340, 351 (1978). Proportionality is a
matter of “the importance of the issues at stake in the
action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).
If requested discovery is withheld inappropriately or goes
unanswered, the requesting party may move for an order
compelling such discovery. Fed.R.Civ.P. 37(a)(1). The Court
has broad discretion to decide whether to compel discovery.
Phillips ex rel. Estates of Byrd v. Gen. Motors
Corp., 307 F.3d 1206, 1211 (9th Cir. 2002).
The Medical History Dispute
argues that her medical history related to both her migraines
and mental health is protected by either the
physician-patient privilege or psychotherapist-patient
privilege, and, as such, she should be protected from sharing
any records produced created prior to 2015. (Dkt. No. 28.)
Defendant argues that the medical records starting from when
Plaintiff began her employment (in 2011) to the present are
relevant to disputing Plaintiff's claims. (Dkt. No. 35.)
the Court has jurisdiction over this case pursuant to 28
U.S.C. § 1331, (see Dkt. No. 1 at 1), federal
common law governs any applicable privileges, even as to
supplemental state claims. See Fed. R. Evid. 501;
see also Religious Tech. Ctr. v. Wollersheim, 971
F.2d 364, 367- 68, 367 n.10 (9th Cir. 1992). Plaintiff's
claims about her migraines are governed by federal
physician-patient privilege and privacy law, while her claims
about her psychological distress are governed by federal
psychotherapist-patient privilege law.
federal law, there is no physician-patient privilege
protecting medical records from discovery. See Equal
Emp't Opportunity Comm'n v. Cheesecake Factory,
Inc., No. C16-1942-JLR, Dkt. No. 39 at 16 (W.D. Wash.
2017). However, the Ninth Circuit has recognized a
constitutional right to privacy of medical information in
some contexts. Id. District courts often find that
this right to privacy is waived when a party puts her medical
history at issue in the lawsuit. See Id. at 17.
Plaintiff argues that she has not put her migraine medical
history at issue because she is not alleging that she was
disabled, but is instead alleging that she was discriminated
against because of a perceived disability. (Dkt. Nos. 28,
38.) However, Plaintiff's argument is belied by her
complaint-in it, she alleges that she has a disability.
(See Dkt. No. 1 at 14.) And one way for a plaintiff
to satisfy an element of her prima facie case of
discrimination under the ADA is by proving that she had a
disability. See, e.g., Hutton v. Elf Atochem N.
Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001). Therefore,
Plaintiff's migraine medical records are relevant to
helping Defendant oppose Plaintiff's prima facie
case. And medical records beginning in 2011 (when Plaintiff
started working for Defendant) are relevant because in her
deposition, Plaintiff testified that she has been suffering
from migraines for at least that long. (See Dkt. No.
36-8 at 5.) Thus, Plaintiff's motion for a protective
order with regard to her migraine medical records is DENIED.
federal law does not recognize a physician-patient privilege,
it recognizes a psychotherapist-patient privilege. See
Jaffee v. Redmond, 518 U.S. 1, 15 (1996). But like the
right to privacy of medical records recognized by the Ninth
Circuit, the psychotherapist-patient privilege can also be
waived. See, e.g., Lahrichi v. Lumera
Corp., 433 Fed.Appx. 519, 521 (9th Cir. 2011).
“[D]istrict courts have adopted different approaches to
determine whether the patient has waived the privilege in the
course of asserting certain claims or damages.” See
Cheesecake Factory, No. C16-1942-JLR, Dkt. No.
39 at 10. Under the broad waiver standard, the privilege is
waived whenever the plaintiff puts her medical condition at
issue. Id. The narrow approach finds waiver
“only when the [plaintiff] affirmatively relies on
privileged communications or where the plaintiff seeks more
than ‘garden variety' emotional distress damages
and alleges emotional distress that is ‘complex' or
has resulted in specific disorders.” Id.
(footnote omitted); see also Jackson v. Chubb Corp.,
193 F.R.D. 216, 225 (D.N.J. 2000).
Plaintiff does not allege a specific psychiatric injury or
disorder in her complaint, she testified in her deposition
that she was diagnosed with anxiety and depression as a
result of how she was treated at work. (Dkt. No. 36-8 at
8-9.) And she has indicated that she may have her diagnosing
doctor testify. (Dkt. No. 28 at 2.) Therefore, under either
approach, Plaintiff has waived her privilege with regard to
her mental health records. See Cheesecake Factory,
No. C16-1942-JLR, Dkt. No. 39 at 10.
Plaintiff's mental health records are relevant to the
extent that Defendant can show that she had these conditions
prior to the allegedly harmful behavior of her managers. In a
similar vein, Plaintiff argues that her medical records
related to her mental health before the alleged
wrongdoing are irrelevant because these records are unrelated
to treatment she sought because of Defendant's actions.
(Dkt. No. 28 at 1.) But, “[D]efendant is entitled to
present evidence that other stressful situations in
[plaintiff's] past personal history have contributed to
her emotional distress.” Ferrell v. Glen-Gery
Brick, 678 F.Supp. 111, 113 (E.D. Pa. 1987) (citing
Lowe v. Phila. Newspapers, Inc., 101 F.R.D. 296, 298
(E.D. Pa. 1983)) (alterations in original). Therefore,