No Half Measures: Privilege Waiver for Garden-Variety Emotional-Distress Claims Reply

You remember the scene. You know, the scene in Season 3, Episode 12 of Breaking Bad, where Mike Ehrmantraut, the do-it-all cleaner, hitman, and investigator, gives his “half-measures” speech to Walter White, artfully imploring White to eliminate co-meth-dealer Jesse Pinkman. Ehrmantraut concludes his riveting personal anecdote by saying: “Moral of the story is I chose a half measure when I should have gone all the way.”

Judge Iain D. Johnston, unafraid to employ full measures when addressing thorny privilege issues, as evidenced in my post, Monty Python, Sinatra, and Rejection of the Self-Critical Analysis Privilege, adhered to Ehrmantraut’s directive by ruling that a plaintiff completely waives the federal common-law psychotherapist–patient privilege when he seeks damages for mental-health injuries. This is true even where the plaintiff limits damages to so-called “garden-variety” emotional injuries. Laudicina v. City of Crystal Lake, 2018 WL 5389844 (N.D. Ill. Oct. 29, 2018). You may read the thorough opinion here.

What is “Garden Variety”?

When City of Crystal Lake (Ill.) Police Officer Krzysztof Krol responded to domestic-violence report, Joseph Laudicina, armed with a knife, reportedly lunged at Officer Krol in a threatening manner. Office Krol shot Laudicina, More…

Oregon’s Sword & Shield Reply

In a personal-injury case, the plaintiff generally waives any privilege protecting communications with her health-care providers regarding the injuries for which she seeks damages. Privilege Waiver 101, right?

Not in Oregon. The state’s supreme court ruled that the physician–patient privilege precludes discovery of the plaintiff’s communications with her physician even where her medical treatment is at issue.  The court’s opinion is so draconian that it prohibits a defense lawyer from asking deposition questions as routine as “what injury did you receive?”

The court’s decision offered a potential—but unanswered—waiver argument (discussed below), but otherwise allows Oregon plaintiffs to use the physician–patient privilege as a sword and a shield in personal-injury cases. Hodges v. Oak Tree Realtors, Inc., 426 P.3d 82 (Ore. 2018).  You may read the decision here.

Oregon’s Physician–Patient Privilege

Oregon Evid. Code 40.325, or Rule 504-1, provides a patient, in a civil action, a privilege to refuse to disclose confidential communications with her physician.  The rule contains a “nonexclusive list” (remember this phrase) of three exceptions for communications made to a physician during a:

(1) commitment-related examination (Rule 504-1(4)(c))

(2) court-ordered physical examination (Rule 504-1(4)(a); and

(3) court-ordered examination “performed under” Ore. R. Civ. P. 44 (Rule 504-1(4)(b)).

Do the last two exceptions sound redundant to you?

Issues and Ruling

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You Can’t Always Get What You Want

When it comes to dictating customized procedures for retrieving inadvertently disclosed privileged information, the proverb is, as The Rolling Stones would say, “You can’t always get what you want.”

Federal Rule of Evidence 502(b) and FRCP 26(b)(5)(B) provide a framework for handling the inadvertent disclosure of privileged information.  FRE 502(b) puts the onus on the producing party to prove that the disclosure was actually inadvertent, and that it took reasonable steps to prevent disclosures and to correct the error.

Don’t like shouldering this burden?  Then read FRE 502(d), which allows parties to enter an Order bypassing FRE 502(b) and declaring that the inadvertent disclosure does not constitute privilege waiver.  But I digress.

So what if a party desires its own claw-back procedures and moves for a protective order that incorporates them—must the opposing party agree? Should the Court adopt those procedures over objection?  More…