In a lawsuit where the plaintiff seeks emotional-distress damages, the discovery of the plaintiff’s personal psychotherapist records is one thing. But is discovery of her pre-claim marriage-counseling records—that involve a third-party spouse—another? Not according to one court, which held that a wife’s intentional infliction of emotional 
distress claim—which requires proof of “severe emotional suffering”—waived the psychotherapist–patient privilege over her marriage counseling records despite her husband’s legitimate privacy concerns. Conyers v. Cano, 2020 WL 7084546 (C.D. Cal. Sept. 25, 2020). You may read the decision here.
Relationships, Terminations, and Emotional Distress
The Carpenters Southwest Trusts filed an ERISA-based lawsuit against several individuals, including the Trusts’ Executive Administrator (EA), for alleged breaches of fiduciary duties. The EA filed a state-law counterclaim alleging that her boss—with whom she had a 19-year personal relationship—sexually harassed her and retaliated against her by terminating her employment.
One of the EA’s state-law claims included a claim of intentional infliction of emotional distress. As a result of “severe and outrageous misconduct,” the EA allegedly suffered “extreme emotional distress.”
Marriage Counselor
The EA and her husband saw a marriage counselor for about 10 months, but that was a couple of years before the Trusts terminated the EA’s employment. Nonetheless, the Trusts subpoenaed the counselor’s records and the EA moved to quash.
A significant basis for the motion to quash was the federal psychotherapist–patient privilege recognized in Jaffee v. Redmond, 518 U.S. 1 (1996) and California’s statutory privilege. Cal. Evid. Code § 1014. But did the EA’s IIED claim place her mental state at issue to the point of waiving the privilege over the marriage-counselor records?
Federal or State Privilege Law?
Lawyers—and courts—cannot forget to identify potential choice-of-laws issue. And the Conyers court did not. This court had federal-question jurisdiction because the Trusts filed an ERISA claim, but the EA grounded her counterclaims, including the IIED claim, on state law. So, did federal or state privilege law apply?
Under FRE 501, federal privilege law applies in federal-question cases, but the rule also states that state privilege law governs when the claim is one for which state law supplies the rule of decision. Here, we have both. The court stated that, while “the interplay of these two principles has created somewhat inconsistent case law regarding the application of federal privilege doctrine to pendent state law claims in federal question cases,” the Ninth Circuit has decided that federal privilege law applies in federal-question cases even if pendent state-law claims exist.
Waiver—Three Approaches
The federal psychotherapist–patient privilege protects the marriage counselor’s records from compelled disclosure, but the assertion of an emotional-distress claim waives the privilege—sometimes. District courts within the Ninth Circuit—and elsewhere—employ three waiver approaches.
First, the broad approach holds that waiver occurs whenever a plaintiff alleges an emotional-distress claim.  Second, the narrow approach holds that waiver occurs only if there is an affirmative reliance and use of the privileged communications. Third, the middle-ground approach holds that privilege waiver occurs only when the plaintiff’s emotional-distress claim involves something more than a claim for “garden-variety” damages.
Something More
Here, the EA’s alleged emotional-distress damages required proof of something more than garden-variety damages. The IIED claim requires the EA to show that, due to intentional and outrageous conduct, she suffered “severe emotional suffering.” Indeed, the EA asserted that she suffered from “extreme” and “severe” emotional suffering. And that, my friends, is something more.
What about the Husband?
The EA clearly put her mental status at issue by asserting the IIED claim, but the husband did not—he was not a party. Production of the marriage counselor’s records would necessarily disclose the husband’s privileged communications. The court recognized the husband’s privacy interests but found that the Trusts’ “discovery needs outweigh such privacy interests” and, in any event, the entry of a protective order would reduce those concerns.
What about the Marital-Communications Privilege?
The marriage-counseling sessions, by definition, contained communications between the EA and her husband. So, would the federal marital-communications privilege preclude those sessions from discovery? No, because the privilege applies only to confidential communications between spouses and the counselor’s presence destroyed the confidentiality.
POP Analysis
The Court’s ruling conflicts with Judge Johnston’s conclusion discussed in No Half Measures: Privilege Waiver for Garden-Variety Emotional-Distress Claim. Drawing an analogy to Mike Ehrmantraut’s “half measures” speech to Walter White in Breaking Bad, the Court found the middle-ground approach that Conyers endorsed as “analytically unsound.”
Declaring a plaintiff’s emotional-distress claim as “garden variety” essentially means that the plaintiff is not “seeking a lot of money,” Judge Johnston concluded. This approach allows a plaintiff to seek emotional-distress damages without allowing the defendant an opportunity to seek relevant discovery to contest those claimed damages. Instead, the proper approach is the broad one—if a plaintiff seeks emotional-distress damages of any kind, then she waives mental-healthcare-provider privileges.