United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON DEFENDANTS'
MOTION TO COMPEL PRODUCTION OF PLAINTIFF'S MENTAL HEALTH
H. Rich III United States Magistrate Judge.
employment action, the defendants seek to compel the
production of records generated during the course of the
plaintiff's psychotherapy treatment by a licensed social
worker on the bases that the plaintiff expressly waived his
psychotherapist-patient privilege and, in any event, the
denial of access to those records would be unfairly
prejudicial. In the alternative, the defendants seek an order
clarifying that certain damages do not qualify as
“garden-variety” emotional distress damages.
Finally, they seek to depose the plaintiff's treating
social worker regardless of whether access to her records is
the discovery dispute as a motion to compel, and with the
benefit of letter briefs and responses that I directed the
parties to submit, see ECF No. 20, I deny the motion
for the reasons that follow.
Applicable Legal Standard
26(b) of the Federal Rules of Civil Procedure outlines the
general scope of permissible discovery in a civil action.
Unless otherwise limited by court order, the scope of
discovery is as follows: 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, considering 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. Information within
this scope of discovery need not be admissible in evidence to
Fed. R. Civ. P. 26(b)(1).
party resisting discovery has the burden of showing some
sufficient reason why discovery should not be
allowed[.]” Flag Fables, Inc. v. Jean Ann's
Country Flags & Crafts, Inc., 730 F.Supp. 1165, 1186
(D. Mass. 1989) (citation and internal quotation marks
omitted). In addition, the proponent of a privilege bears the
burden of demonstrating entitlement to its protection.
See, e.g., In re Keeper of Records (Grand Jury Subpoena
Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003)
(“Despite a grand jury's vaunted right to every
man's evidence, it must, nevertheless, respect a valid
claim of privilege. But the party who invokes the privilege
bears the burden of establishing that it applies to the
communications at issue and that it has not been
waived.”) (citations omitted).
relevant here, the plaintiff's complaint alleges the
plaintiff began working for the defendant John Lucas Tree
Experts Co. (“Lucas Tree”) as a laborer on August
15, 2011. See Complaint and Request for Jury Trial
and Injunctive Relief (“Complaint”) (ECF No. 1)
¶ 17. On February 27, 2015, the plaintiff went home
after working a full day and woke up in the emergency room
after passing out from dehydration. See Id. ¶
19. The next day, he informed his supervisor of his
condition, and was told to remain home and rest. See
Id. ¶ 20. On March 2, 2015, the plaintiff returned
to work but did not feel well, and he called out of work on
March 3, 2015. See Id. ¶¶ 21-22. He never
returned to work. See Id. ¶¶ 23-89.
March 26, 2015, the plaintiff's doctor cleared him to
return to work after treating him for potential liver and
pancreas ailments. See Id. ¶¶ 26, 29.
Lucas Tree refused to allow the plaintiff to return to work
until he received an additional evaluation by defendant
Concentra Medical Centers (“Concentra”). See
Id. ¶ 31. Concentra never cleared the plaintiff to
return to work, see Id. ¶¶ 38-40, 54-70,
and he was terminated by Lucas Tree on May 27, 2015, see
Id. ¶ 83.
plaintiff alleges that Lucas Tree violated his rights
pursuant to the Americans with Disabilities Act
(“ADA”), the ADA Amendments Act of 2008
(“ADAAA”), the Maine Human Rights Act
(“MHRA”), the Family and Medical Leave Act
(“FMLA”), and the Maine Family Medical Leave
Requirements Act (“MFMLR”), and that Concentra
violated his rights pursuant to the ADA, ADAAA, and
MHRA. See Id. ¶¶ 91-183. As
to several of these claims, the plaintiff seeks damages for,
inter alia, “severe emotional pain and
suffering, mental anguish, humiliation, [and] loss of
enjoyment of life[.]” Id. ¶¶ 101,
114, 125, 137.
the course of written discovery, the plaintiff was asked to
identify the health care providers who provided treatment in
relation to the incident at issue in the suit. See
Letter Brief dated October 19, 2017, from Katherine I. Rand,
Esq. to Hon. John H. Rich III (“Defendants'
Brief”) at 2. In response to that interrogatory, the
plaintiff disclosed that he had seen Catherine Ouellette
beginning in September 2015 “for assistance in dealing
with the impact of his termination, the fact that [his]
parents had to support him now and the financial and
emotional impact on them having to do that.” See
id. (quoting the plaintiff's response to Lucas
Tree's Interrogatory Number 10). In his responses to
requests for production of documents that sought records from
his health care providers, he noted that he had requested
Ouellette's records and would produce them to the
defendants when he received them. See id.
24, 2017, the plaintiff notified the defendants that he was
designating Ouellette as a treating expert witness. See
Id. at 3. At the same time, he provided the defendants
with a letter from Ouellette outlining and describing her
treatment of him. See Id. The letter described,
inter alia, conditions that the plaintiff alleged
stemmed from his firing by Lucas Tree. See Id. The
letter also noted Ouellette's assessment that the
plaintiff's termination had specific detrimental effects
on his mental health. See id.
September 21, 2017, the plaintiff's counsel confirmed to
opposing counsel that she had received the plaintiff's
medical file from Ouellette, but she refused to provide it to
the defendants because she had determined that it contained
sensitive information about the plaintiff's children.
See Id. She stated that the plaintiff would withdraw
his designation of Ouellette as an expert witness and seek
only “garden variety” emotional distress damages.
See Id. Counsel for defendants Lucas Tree and Buxton
suggested that, instead, the plaintiff's counsel redact
portions of the records discussing the plaintiff's
children. See Id. In a letter dated September 22,
2017, the plaintiff's counsel declined to do so,
reiterating that the plaintiff would not produce
Ouellette's records, invoking the psychotherapist-patient
privilege, and stating that the plaintiff agreed to adopt the
four limitations on emotional distress damages set forth in
Doe v. Brunswick Sch. Dep't, No.
2:15-cv-257-DBH, 2016 WL 8732370, at *4 (D. Me. Apr. 29,
2016). See Id. at 3. Those limitations are:
1. The plaintiff do[es] not pursue any claims for damages
due to a medically diagnosable mental health condition.
2. The plaintiff do[es] not rely on any medical or mental
health experts, providers, or records to prove damages.
3. The plaintiff do[es] not seek any damages based on
hospitalizations or medical or mental health ...