                                                         FILED
                                                          JUL 22 2019

                                                      SUSAN M. SPRAUL, CLERK
                                                        U.S. BKCY. APP. PANEL
                                                        OF THE NINTH CIRCUIT

                       ORDERED PUBLISHED

         UNITED STATES BANKRUPTCY APPELLATE PANEL
                   OF THE NINTH CIRCUIT

In re:                                      BAP No. CC-18-1067-SFL

FRANK JAKUBAITIS,                           Bk. No.   8:13-bk-10223

                 Debtor.                    Adv. No. 8:15-ap-01020

FRANK JAKUBAITIS,

                 Appellant,

v.                                           OPINION

CARLOS PADILLA, III; JEFFREY IAN
GOLDEN; RICHARD A. MARSHACK,

                 Appellees.

                Argued and Submitted on February 21, 2019
                         at Pasadena, California

                           Filed – July 22, 2019

             Appeal from the United States Bankruptcy Court
                  for the Central District of California

         Honorable Theodor C. Albert, Bankruptcy Judge, Presiding
Appearances:        Appellant Frank Jakubaitis, on brief, pro se; Arash Shirdel
                    of Pacific Premier Law Group argued for Appellees
                    Carlos Padilla, Jeffrey Ian Golden, and Richard A.
                    Marshack.



Before: SPRAKER, FARIS, and LAFFERTY, Bankruptcy Judges.

SPRAKER, Bankruptcy Judge:

                                 INTRODUCTION

      This appeal concerns a discovery dispute arising in an action to

revoke the chapter 71 discharges of Frank Jakubaitis and his wife Tara

Jakubaitis. The complaint named three plaintiffs: Carlos Padilla, Jeffrey

Golden (Mr. Jakubaitis’ chapter 7 trustee), and Richard Marshack (Mrs.

Jakubaitis’ chapter 7 trustee) (jointly, “Plaintiffs”). The complaint also

sought turnover of allegedly undisclosed assets.

      Mr. Jakubaitis unsuccessfully sought a protective order barring

deposition questions arising from his counsel’s statements to the court that

certain medications he was taking made it “impossible to give meaningful

or accurate deposition testimony.” More specifically, Jakubaitis challenges

the portion of the order permitting the Plaintiffs to ask deposition


      1
      Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532.

                                           2
questions, “including but not limited to diagnosis, medication prescribed

and taken, purpose for the prescription, and side effects of drugs.” Order

Denying Motion For Protective Order (Feb. 20, 2018). Jakubaitis contends

that having to answer any questions on these subjects would violate his

psychotherapist-patient privilege.

      Questions regarding the medication Jakubaitis is taking, how long he

has been taking the medication, and the side effects he is experiencing are

beyond the scope of the privilege, so long as the questions do not require

Jakubaitis to divulge communications between him and his

psychotherapist. However, questions regarding his diagnoses and the

purpose of the medication he is taking directly inquire into the advice of

his psychotherapist and hence are privileged.

      Jakubaitis did not waive the privilege with respect to diagnoses and

purposes of his medication. On this record, neither of the two recognized

variants of privilege waiver doctrine have been triggered by Jakubaitis’s

disclosures or his litigation positions. Accordingly, we AFFIRM IN PART

and REVERSE IN PART.

                                     FACTS

      In January 2015, Plaintiffs commenced their adversary proceeding

under §§ 542 and 727(d). By all accounts, the litigation is highly contentious

and has generated a great deal of animosity. Even so, most of the facts we

rely on are procedural in nature and not subject to legitimate dispute.


                                       3
       In January of 2017, Plaintiffs noticed Jakubaitis’ deposition.2 On the

eve of the noticed deposition date, Jakubaitis served the Plaintiffs with an

opposition to the deposition notice. In relevant part, Jakubaitis stated

through his counsel of record, “the deponent is currently under the effects

of prescription medication which makes it impossible to give meaningful

or accurate deposition testimony.”

       Jakubaitis did not attend the deposition as scheduled. Plaintiffs

thereafter sought and obtained an order compelling Jakubaitis’ attendance

at the deposition as well as $3,000 in sanctions.

       On March 29, 2017, Jakubaitis filed his first motion for protective

order. In it, his counsel reiterated Jakubaitis’ prior statement that “the

effects of prescription medication make it impossible to give meaningful

and accurate deposition testimony.” He also stated through his counsel:

       A deposition is part of the conflict-oriented nature of litigation.
       Face-to-face adversaries. Spontaneous responses. But as in any
       conflict, an aura of combat continues to hover, and combat
       produces casualties. The prescription medications can create an
       uneven field of battle by altering Defendant’s ability to
       respond, remember, and understand a question posed. This
       puts Defendant at risk of harassment and elevated aggravation


       2
         The deposition notice is attached to a declaration the Plaintiffs filed in support
of a January 19, 2017 motion to compel. We can and do take judicial notice of the filing
and contents of this motion to compel, as well as the other documents filed in the main
case and the adversary proceeding. See Ozenne v. Bendon (In re Ozenne), 337 B.R. 214, 218
(9th Cir. BAP 2006) (citing O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d
955, 957 (9th Cir. 1989)).

                                              4
      and stress during the deposition. This puts Defendant at risk of
      future harassment because the videotape would not present
      Defendant in the most responsive demeanor and state of mind.

Motion For Protective Order (Mar. 29, 2017) at 4:14-21. The bankruptcy

court denied the first protective order motion. Jakubaitis has not appealed

that order.3

      The deposition eventually took place in June 2017. However, this did

not end the discovery dispute. At the deposition, Jakubaitis asserted that

his medication no longer was an obstacle to his deposition being taken, and

no longer was an issue, because he refrained from taking his medication on

the day of the deposition. He further maintained that he was cooperating

with the discovery as reflected by the deposition questions he did answer.

On the other hand, Jakubaitis refused to answer numerous questions

concerning, among other things, the medications he had been taking, their

side effects, and the causes of his claimed mental health issues.

      Once again, Plaintiffs sought and obtained an order compelling

discovery from Jakubaitis, which required him to answer the unanswered

deposition questions. This order provided for the possibility of terminating



      3
         The order compelling attendance at the deposition and the order denying
Jakubaitis’ first protective order motion are beyond the scope of this appeal. Even so,
Jakubaitis’ above-referenced statements about the effect of his medications on his ability
to testify and about his sensitivity to situations resembling combat are critical to this
appeal. Plaintiffs’ contention that Jakubaitis waived the psychotherapist-patient
privilege is based solely on these statements.

                                            5
sanctions if Jakubaitis did not succeed in obtaining a protective order

restricting or eliminating the unanswered deposition questions and if

Jakubaitis continued to refuse to answer the questions posed. Jakubaitis has

not appealed this order either.

      On January 10, 2018, Jakubaitis filed his second protective order

motion. Citing Jaffee v. Redmond, 518 U.S. 1 (1996), Jakubaitis claimed that

Plaintiffs’ deposition questions impinged on his psychotherapist-patient

privilege. He further maintained that this privilege was absolute and that

he had done nothing to waive it. More specifically, he contended that his

statements regarding his medications and their effect on his mental state

did not constitute a privilege waiver. He also pointed out that he had not

asserted any affirmative defenses raising any issue as to his mental

condition.

      On January 18, 2018, Plaintiffs filed their opposition to the second

protective order motion. Among other things, Plaintiffs argued that

Jakubaitis had waived the privilege, or rendered it inapplicable, by placing

at issue his mental health. Even if the privilege were generally applicable

and not waived, Plaintiffs reasoned that their unanswered deposition

questions did not impinge on the privilege because the privilege only

covered communications and their deposition questions were not asking

for any communications.

      On February 15, 2018, the bankruptcy court held a hearing on the


                                       6
second protective order motion. In essence, the bankruptcy court ruled that

Jakubaitis’ statements about the effect of his medications on his clarity of

mind were troublesome because Jakubaitis had not disclosed sufficient

information to enable either the court or the Plaintiffs to meaningfully

assess Jakubaitis’ credibility or the accuracy of any of his testimony. To

address this concern, the court held that Plaintiffs were entitled to ask

questions regarding: “what the drugs were, what the side effects were, if

he’s feeling the effects of the side effects, those types of questions.“ See Hr’g

Tr. (Feb. 1, 2018) at 17:3-5. At the same time, the court agreed with

Jakubaitis that Plaintiffs should not be permitted to ask questions about

specific communications between Jakubaitis and his psychotherapist.

      The bankruptcy court entered its order denying Jakubaitis’ second

protective order motion on February 20, 2018. The order in relevant part

provided as follows:

      The motion is DENIED, except that Plaintiff[s] cannot ask
      questions regarding the specifics of conversations between
      Frank Jakubaitis and his psychotherapist. However, Plaintiffs
      can ask questions, including but not limited to diagnosis,
      medication prescribed and taken, purpose for the prescription,
      and side effects of drugs.

Order Denying Second Protective Order Motion (Feb. 20, 2018) at 2.

Jakubaitis timely appealed.




                                        7
                                    JURISDICTION

       The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334

and 157(b)(2)(E) and (J). We have jurisdiction under 28 U.S.C. § 158.4

                                         ISSUES

1.     Did the bankruptcy court’s order permitting the Plaintiffs to ask

       deposition questions relating to Jakubaitis’ mental health and his

       medications cover information within the scope of the

       psychotherapist-patient privilege?

2.     Did Jakubaitis waive the psychotherapist-patient privilege?

                              STANDARD OF REVIEW

       Issues regarding the scope of a privilege are reviewed de novo.

United States v. Ruehle, 583 F.3d 600, 606 (9th Cir. 2009).

       Whether a privilege had been waived is a mixed question of law and

fact, also reviewed under the de novo standard. Tennenbaum v. Deloitte &

Touche, 77 F.3d 337, 340 (9th Cir. 1996).

       When we review a matter de novo, we consider it anew, as if no

bankruptcy court ruling was rendered. Mele v. Mele (In re Mele), 501 B.R.

357, 362 (9th Cir. BAP 2013).




       4
         The order on appeal is interlocutory. Nonetheless, we previously granted leave
to appeal, which affords us jurisdiction to hear appeals from non-final bankruptcy court
orders. 28 U.S.C. § 158(a)(3); Giesbrecht v. Fitzgerald (In re Giesbrecht), 429 B.R. 682, 687
(9th Cir. BAP 2010).

                                              8
                                 DISCUSSION

A.    Scope Of Privilege.

      On appeal, Jakubaitis principally argues that the bankruptcy court

erred by construing too narrowly the scope of the psychotherapist-patient

privilege. According to Jakubaitis, Jaffee established a broad privilege that

includes: (1) the identity of medications the patient is taking; (2) when the

patient has taken them; and (3) what side effects the patient might have

experienced. This is the core information the Plaintiffs sought. Relying on

Jaffee, Jakubaitis posits that this information must be covered by the

privilege because it is inextricably intertwined with the treatments and

diagnoses he has received from his mental health care professional, which

goes to the heart of the psychotherapist-patient relationship.

      In Jaffee, the Supreme Court recognized for the first time the existence

of a federal common law psychotherapist-patient privilege. Jaffee explained

that this privilege must exist in order to foster the efforts of

psychotherapists to protect and improve their patients’ mental health,

which Jaffee identified as “a public good of transcendent importance.” Jaffee,

518 U.S. at 11. Jaffee reasoned that, to enable mental health care

professionals to accurately diagnose and treat mental health issues, it was

imperative that the patient and psychotherapist be able to develop a

relationship of the utmost trust and confidence in which the patient feels

comfortable making “a frank and complete disclosure of facts, emotions,


                                        9
memories, and fears.” Id. at 10. Because of the extremely personal,

sensitive, and potentially embarrassing nature of such information, the

absence of any privilege very likely would impede accurate diagnosis and

successful treatment of mental health conditions. Id. Jaffee also held that the

privilege had to be absolute – not qualified, limited, or conditioned on the

balancing of competing interests. Id. at 17-18. As Jaffee explained, the

uncertainty surrounding a limited privilege was “little better than no

privilege at all” in terms of encouraging the patient and the therapist to be

frank with each other, without fear that their confidential communications

later might have to be disclosed in litigation. Id.

      The same concerns Jaffee considered in recognizing the existence and

absolute nature of the psychotherapist-patient privilege arguably could

justify extending the privilege to the Plaintiffs’ medication-related

questions. Jakubaitis argues that narrowly circumscribing the scope of the

privilege to exclude medication-related questions could impede treatment

of mental health issues. More specifically, he contends that such limitations

could chill the psychotherapist from prescribing medications, or the patient

from taking them. In other words, if the patient fears he later might have to

disclose any medications he or she has taken, he or she may refuse to take

them. This would seem to significantly undermine the therapeutic process

Jaffe sought to protect.

      On the other hand, privileges generally are construed narrowly,


                                       10
based on the longstanding rule disfavoring barriers to the discovery and

presentation of relevant, probative evidence. “‘When we come to examine

the various claims of exemption, we start with the primary assumption that

there is a general duty to give what testimony one is capable of giving, and

that any exemptions which may exist are distinctly exceptional, being so

many derogations from a positive general rule.’” Id. at 9 (quoting United

States v. Bryan, 339 U.S. 323, 331 (1950)); see also Ruehle, 583 F.3d at 607

(“because it impedes full and free discovery of the truth, the attorney-client

privilege is strictly construed”); Weil v. Investment/Indicators, Research &

Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981) (same).

      Of greater concern, Jakubaitis’ broad construction of the

psychotherapist-patient privilege, if accepted, would extend Jaffee well

beyond its narrow holding. Jaffee recognized a federal common law

privilege for communications between the psychotherapist and the patient

in the course of diagnosis or treatment. Jaffee, 518 U.S. at 10–12, 18. Other

courts have applied the psychotherapist-patient privilege to

communications. See, e.g., United States v. Romo, 413 F.3d 1044, 1046–47 (9th

Cir. 2005); Equal Emp’t Opportunity Comm’n v. Cheesecake Factory, Inc., Case

No. C16-1942JLR, 2017 WL 3887460, at *4 (W.D. Wash. Sept. 6, 2017);

Fitzgerald v. Cassil, 216 F.R.D. 632, 635 (N.D. Cal. 2003); see also 2

Christopher B. Mueller and Laird C. Kirkpatrick, Fed. Evid. § 5:43 (4th ed.

2018) (“the [psychotherapist-patient] privilege covers conversations with


                                        11
qualified psychiatrists, psychologists, and clinical social workers, meaning

professional therapists who are authorized (licensed or certified) to practice

in their callings.”) (emphasis added).

      We acknowledge that Jaffee specifically declined to further define or

limit the scope of the privilege. 518 U.S. at 18. Instead, it reserved the scope

of the privilege for further development in future case law. Id. Nonetheless,

we think its references to the privilege as pertaining to “communications”

are telling. Also telling is Jaffee’s repeated comparison of the

psychotherapist-patient privilege to other testimonial privileges, including

the attorney-client privilege. More specifically, Jaffee noted that the

underlying rationale for the privileges and the holders’ ability to waive

them were the same for all testimonial privileges, including the

psychotherapist-patient privilege. Id. at 10, 15 n.14; see also Koch v. Cox, 489

F.3d 384, 389-90 (D.C. Cir. 2007) (analogizing psychotherapist-patient

privilege to attorney-client privilege in the context of privilege waiver);

Fitzgerald, 216 F.R.D. at 637 (same). As one leading treatise points out, it is

well-established that the attorney-client privilege does not cover non-

verbal, non-communicative conduct. See 2 Christopher B. Mueller and

Laird C. Kirkpatrick, Fed. Evid. § 5:17.

      Furthermore, the language of proposed Federal Rule of Evidence 504

supports our interpretation of the privilege. While proposed Rule 504 never

was approved by Congress, it is considered persuasive authority on the


                                       12
scope of the privilege. See Romo, 413 F.3d at 1047–48.5 The proposed rule

established a privilege tied to “confidential communications” between the

patient and his psychotherapist:

       (b) General rule of privilege. A patient has a privilege to refuse
       to disclose and to prevent any other person from disclosing
       confidential communications, made for the purposes of
       diagnosis or treatment of his mental or emotional condition,
       including drug addiction, among himself, his psychotherapist,
       or persons who are participating in the diagnosis or treatment
       under the direction of the psychotherapist, including members
       of the patient’s family.

Proposed Fed. R. Evid. 504(b) (quoted in 56 F.R.D. at 241) (emphasis

added).

       In sum, Jaffee is clear that the psychotherapist-patient privilege

applies to communications. In fashioning the privilege, the Supreme Court

relied upon the attorney-client privilege, which does not extend to non-

communicative conduct. Moreover, the general rule embodied in proposed

       5
           As explained in Romo:

                The Proposed Rules were drafted by the Judicial Conference
                Advisory Committee on Rules of Evidence, approved by the
                Judicial Conference of the United States and by the Supreme
                Court, and submitted to Congress by the Chief Justice.
                Among the Proposed Rules were nine testimonial privileges,
                including a psychotherapist-patient privilege. Proposed Fed.
                R. of Evid. 501-513, 56 F.R.D. 183, 230-61 (1972). Congress
                did not adopt the Proposed Rules.

Romo, 413 F.3d at 1047 n.3 (case citations omitted).

                                             13
Federal Rule of Evidence 504(b) disfavors broad construction of the

psychotherapist-patient privilege. Based on this, we are persuaded that

Plaintiffs’ questions regarding Jakubaitis’ medications and their side effects

are beyond the scope of the privilege. This appears to have been the focus

of the parties before the bankruptcy court. Accordingly, the only pertinent

facts currently at issue are the identities of the medications Jakubaitis is, or

was, taking and their effect on his ability to testify at his deposition. Those

operative facts are discoverable and not protected by the privilege.

Requiring Jakubaitis to disclose information regarding the medications he

has taken, the period of time he has taken them, and the extent and nature

of side effects he has suffered as a result of taking them, does not

constitute, or directly implicate, any communication he has had with his

psychotherapist. Consequently, questions on these topics are not within the

scope and protection of the psychotherapist-patient privilege.6



       6
         Even though we have concluded that the medication-related questions are not
privileged, information regarding Jakubaitis’ medication likely is still subject to various
statutory and constitutional confidentiality and privacy rights. The patient’s privacy
rights in confidential medical and mental health information are legally distinct from
the psychotherapist-patient privilege. See generally Caesar v. Mountanos, 542 F.2d 1064,
1067–68 & n.10 (9th Cir. 1976) (addressing interaction of state privilege law with federal
and state privacy rights). The parties have not addressed any arguments related to such
privacy rights in either the bankruptcy court or on appeal. We decline to address them
further except to note that at oral argument before this Panel, Plaintiffs’ counsel
acknowledged his clients’ willingness to stipulate to a protective order restricting
further dissemination of any confidential information obtained during discovery
regarding Jakubaitis’ medications.

                                            14
      While we find no error in the bankruptcy court’s decision to compel

Jakubaitis to answer questions regarding his medications and their side

effects, this does not end our inquiry. The bankruptcy court’s order also

permitted the Plaintiffs to ask questions regarding diagnoses and the

“purpose for the prescription[s].” This portion of the court’s order seems to

be at odds with the bankruptcy court’s oral ruling at the hearing on the

second protective order motion, which focused exclusively on “what the

drugs were, what the side effects were, if he’s feeling the effects of the side

effects, those types of questions.” See Hr’g Tr. (Feb. 1, 2018) at 17:3-5.

Moreover, in their opposition to Jakubaitis’ second protective order motion

filed in the bankruptcy court, Plaintiffs limited their focus exclusively to

the need to ask medication-related questions. As they stated, “[s]ince Frank

Jakubaitis has repeatedly indicated that he is under the influence of

prescription medication, it is important to determine: 1. what said

medication is; 2. how long Frank Jakubaitis has been taking the medication;

and, 3. the effect (or side effects) of the medication.” Opposition to Motion

For Protective Order (Jan. 18, 2018) at 5:11-14.

      The Plaintiffs’ argument at the hearing on the second protective order

motion focused on the exact same questions. Indeed, there was no mention

at the hearing of a need for diagnoses or the medications’ purposes. The

Plaintiffs’ asserted need to ask these questions was raised for the first time

in the draft order they submitted to the court, which the court adopted and


                                       15
entered. Still, the bankruptcy court’s order compels Jakubaitis to answer

the deposition questions on these items as well as the medication taken and

their side effects.

      We do not understand how Jakubaitis could answer questions

meaningfully about his diagnoses or the purposes of his medications

without divulging his communications with his psychotherapist. Indeed,

such questions would go to the heart of the psychotherapist-patient

relationship, inasmuch as they directly seek information regarding advice

the mental health care professional made during the “course of diagnosis

[and] treatment.” Romo, 413 F.3d at 1047–48 (emphasis added).7 Nor have

Plaintiffs articulated any legitimate need for this information. We,

therefore, hold that Plaintiffs’ questions regarding diagnoses and the

purpose of his medications are within the scope of the psychotherapist-

patient privilege.

B.    Waiver Analysis.

      Plaintiffs have continually argued in the alternative that, even if the

information they seek falls within the psychotherapist-patient privilege,

Jakubaitis has waived the privilege with respect to these questions.



      7
        The risk to the privilege posed by specific questions is not at issue in this
appeal. Neither party has presented us with particular disputed deposition questions.
Instead, Jakubaitis has argued that the general deposition topics of his diagnoses and
the purposes of his medications would infringe on his psychotherapist-patient
privilege.

                                           16
Notwithstanding Jaffee’s statement that the privilege is unconditional, it

specifically held that the privilege can be waived “like other testimonial

privileges.” 518 U.S. at 15 n.14. While it generally left the issue of waiver

for future case development, we consider it significant that it referenced

other testimonial privileges in the context of discussing waiver.

      The bankruptcy court did not specifically rule on whether any waiver

occurred. Rather, the bankruptcy court’s decision was based on the belief

that none of the disputed deposition topics were protected by the privilege.

However, both parties addressed the waiver issue. If a waiver occurred,

such waiver might serve as an alternate ground for affirmance of the

bankruptcy court’s order. See, e.g., Lakhany v. Khan (In re Lakhany), 538 B.R.

555, 559 (9th Cir. BAP 2015) (holding that we may affirm on any ground

supported on the record); Nilsen v. Neilson (In re Cedar Funding, Inc.), 419

B.R. 807, 816 (9th Cir. BAP 2009) (same). And even though the bankruptcy

court did not address the waiver issue, we can address the issue because

the de novo standard of review applies to privilege waiver questions,

Tennenbaum, 77 F.3d at 340, and because the conduct supposedly causing

the waiver is not subject to any factual dispute. Simply put, the waiver

question presented in this appeal is purely one of law that we may address

in the first instance. Cf. Mano–Y & M, Ltd., v. Field (In re Mortg. Store, Inc.),

773 F.3d 990, 998 (9th Cir. 2014) (holding that appellate court may address

issue not addressed below if it is purely one of law and does not depend on

the factual record, or the relevant part of the record is fully developed).

                                        17
      With respect to the attorney-client privilege, the Ninth Circuit has

identified and defined two distinct waiver doctrines applicable to

privileges: voluntary waiver and waiver by implication. Bittaker v.

Woodford, 331 F.3d 715, 718–20 & n.4 (9th Cir. 2003) (en banc). We discuss

each of these two doctrines separately.

      1.    Express Or Voluntary Waiver.

      The first variant is express or voluntary waiver. It occurs “when a

party discloses privileged information to a third party who is not bound by

the privilege, or otherwise shows disregard for the privilege by making the

information public.” Id. at 719. The underlying purpose of the voluntary

waiver doctrine is “to prevent prejudice to a party and distortion of the

judicial process that may be caused by the privilege-holder’s selective

disclosure during litigation of otherwise privileged information.” Von

Bulow v. von Bulow (In re von Bulow), 828 F.2d 94, 101 (2d Cir. 1987)

(emphasis added).

      Accordingly, when the privilege holder makes selective disclosures

of privileged information during discovery or in pretrial proceedings –

such as in support of a summary judgment motion or in a request for

provisional relief – “forensic fairness” dictates that the privilege is waived

as to all privileged information on the same subject matter. Restatement

(Third) of the Law Governing Lawyers § 79, cmt. f (2000); see also Weil, 647

F.2d at 24 (“voluntary disclosure of the content of a privileged attorney

communication constitutes waiver of the privilege as to all other such

                                      18
communications on the same subject.”). The privilege holder bears the

burden to establish that the privilege has not been waived. United States v.

Martin, 278 F.3d 988, 999–1000 (9th Cir. 2002); Weil, 647 F.2d at 25.

      The express waiver doctrine applies to the psychotherapist-patient

privilege. See Koch, 489 F.3d at 390-91; see also Cheesecake Factory, Inc., 2017

WL 3887460, at *6 (“a patient waives the privilege as to confidential

communications he discloses to third-party providers for purposes of

obtaining benefits.”).

      We can easily dispose of the express waiver doctrine. Absolutely

nothing in the record indicates that Jakubaitis has selectively disclosed

privileged information. Furthermore, Plaintiffs’ waiver argument – both in

the bankruptcy court and on appeal – has been based solely on the

statements Jakubaitis made in advance of his deposition regarding the

effect of his medications on his ability to testify, and regarding the combat-

like nature of deposition practice. In light of our holding regarding the

narrow scope of the psychotherapist-patient privilege, neither of these

statements amounts to a disclosure of privileged information. Thus, no

express or voluntary waiver occurred here.

      2.    Implicit Waiver.

      The second waiver variant is waiver by implication. Generally

speaking, an implicit waiver occurs when the holder of the privilege takes

some affirmative action in the litigation that puts at issue privileged

information. United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999).

                                        19
Typically, such affirmative actions consist of the assertion of a claim for

relief or a defense. See, e.g., Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162

(9th Cir. 1992) (advice of counsel defense); Stallworth v. Brollini, 288 F.R.D.

439, 443 (N.D. Cal. 2012) (intentional infliction of emotional distress claim).

However, other positions asserted in the course of litigation may also be

sufficient to trigger the implied waiver doctrine. See, e.g., Bittaker, 331 F.3d

at 718–20 (habeas petition based on ineffective assistance of counsel);

Amlani, 169 F.3d at 1195-96 (attorney disparagement argument made in

support of criminal defendant’s contention that his Sixth Amendment right

to counsel was violated) .

      The extent and nature of this waiver is dictated by concerns of

fairness. In essence, the court imposing the implied waiver is saying to the

privilege holder: “[i]f you want to litigate this claim [or defense], then you

must waive your privilege to the extent necessary to give your opponent a

fair opportunity to defend against it.” Bittaker, 331 F.3d at 720.

      In the context of the attorney-client privilege, the Ninth Circuit

employs a three-part test to determine whether an implicit waiver has

occurred. Amlani, 169 F.3d at 1195. First, the party asserting the privilege

must have engaged in an “affirmative act” that led that party to assert the

privilege. Id. Second, the asserting party’s affirmative act must have put the

privileged information at issue. Id. And third, application of the privilege

must deprive the adverse party of information “vital to its defense.” Id.

      The criminal defendant in Amlani asserted that the prosecutor

                                        20
effectively had deprived him of his right to counsel by making disparaging

comments about his criminal defense counsel. The defendant maintained

that these disparaging comments led him to fire his counsel and replace

him with less experienced counsel. Id. at 1191. Amlani held that the

defendant’s attorney disparagement claim had placed at issue

communications between the defendant and his counsel regarding his

reasons for substituting in new counsel. Id. at 1195. Thus, Amlani concluded

that the first two prongs of the implicit waiver test were satisfied. Id.

        As for the third prong, Amlani explained that it is satisfied only when

the adverse party has a genuine need for the privileged information to

counter the assertion or claim that placed the privileged information at

issue. Id. According to Amlani, that need was evident there. Id. at 1195-96.

Amlani reasoned that the prosecution could not, in fairness, be expected to

respond to the attorney disparagement claim without being afforded access

to privileged communications regarding the substitution of counsel. Id. at

1196.

        Many cases have extended the implicit waiver doctrine to the

psychotherapist-patient privilege. See Alois v. SkyWest Airlines, Case No. CV

10-2030 RGK(JCX), 2011 WL 13042434, at *2 (C.D. Cal. Apr. 4, 2011) (partial

listing of cases); Fitzgerald, 216 F.R.D. at 636 (same). For purposes of this

privilege, the Ninth Circuit has not defined what constitutes an affirmative

act sufficient to satisfy the first and second prongs of the Amlani implicit

waiver test. And there is considerable disagreement among district courts

                                       21
on this issue. As one district court recognized:

             In the wake of Jaffee, courts have struggled to determine
      the circumstances under which waiver of the
      psychotherapist-patient privilege occurs. Some courts have
      taken a broad approach to waiver, finding, for example, that
      mere assertion of a claim for emotional distress damages is
      enough to justify a finding of waiver. These cases focus on
      fairness considerations. Other courts have taken a narrow
      approach, holding that there must be an affirmative reliance on
      the psychotherapist-patient communication before the privilege
      is waived. These latter cases are based on the primacy of the
      privacy interest that is inherent in the privilege. Finally, some
      courts have taken a “limited broad view” in which they have
      found waiver where a plaintiff has alleged more than “garden
      variety” emotional distress and has instead alleged emotional
      distress that is “complex” or has resulted in specific disorders.

Stallworth, 288 F.R.D. at 443 (internal citations omitted) (quoting Boyd v.

City & Cty. of S.F., No. C-04-5459 MMC (JCS), 2006 WL 1390423, at *5 (N.D.

Cal. May 18, 2006)); see also Fitzgerald, 216 F.R.D. at 636-39 (examining at

length different approaches to implicit waiver of the psychotherapist-

patient privilege and adopting the narrowest approach).

      Here, we do not need to wade into the murky waters surrounding the

question of whether the implicit waiver doctrine might be narrower in

scope in the psychotherapist-patient privilege context than it is in the

attorney-client privilege context. We can assume without deciding that the

first and second prongs of the Amlani implied waiver test were satisfied

here when Jakubaitis asserted that the medications he was taking made it


                                       22
“impossible to give meaningful or accurate deposition testimony.” This

assertion arguably placed at issue not only the identity of the medications,

and the length of time he had been taking them, but also the diagnoses

related to these medications and the purposes for which he was taking

them.

        Even if we assume, however, the first and second prongs of the

Amlani test have been met, on this record it is obvious that the third prong

– regarding the need for the privileged information – decidedly has not

been met. The issue regarding Jakubaitis’ ability to testify no longer is a

live issue. The bankruptcy court ordered Jakubaitis to submit himself for

his deposition, and he did so. Furthermore, Jakubaitis repeatedly has stated

that he ceased taking his medication on the day of the deposition, so his

medication no longer was preventing him from accurately testifying.

Under these circumstances, there is no indication that Plaintiffs genuinely

needed privileged information regarding Jakubaitis’ diagnoses and the

purposes of his medications to counter any assertion by Jakubaitis.

        Put differently, the record demonstrates that Jakubaitis has

abandoned the assertion that formerly placed at issue his mental state and

his ability to testify. Under both Amlani and Bittaker, absent a real and

continuing need for the privileged information, an implied waiver will not

be imposed. Bittaker, 331 F.3d at 720; Amlani, 169 F.3d at 1195-96.

        The Plaintiffs have expressed the fear that, based on the litigation

positions Jakubaitis took in his discovery papers, he will in the future seek

                                        23
to amend or add a defense that he could not have intentionally and

purposefully lied in his bankruptcy schedules because he was taking

medication at the time that either rendered him incapable of forming such

an intent or rendered him incapable of accurately filling out his schedules,

through no fault of his own. We know of no implicit waiver cases applying

the doctrine based on the mere possibility that the privilege holder might

in the future affirmatively act in a way that puts privileged information at

issue. Moreover, such a broad interpretation of the waiver doctrine is

inconsistent with Amlani’s and Bittaker’s explanation of the scope of the

doctrine. That explanation focuses on what the privilege holder actually is

doing, rather than what he or she might do in the future. See Bittaker, 331

F.3d at 718-20.8

      The portion of the bankruptcy court’s order directing Jakubaitis to

answer questions about his diagnoses and the purposes of his medications

impinged on his psychotherapist-patient privilege. Based on the record on

appeal, he has not waived the privilege. Accordingly, the portion of the

bankruptcy court’s order compelling Jakubaitis to answer deposition

questions concerning any diagnosis or purpose for medication constitutes

reversible error.


      8
        In any event, the bankruptcy court has the discretion to preclude evidence from
Jakubaitis, if appropriate, to the extent he later attempts to add defenses calling into
question his mental health. See Columbia Pictures Television, Inc. v. Krypton Broad. of
Birmingham, Inc., 259 F.3d 1186, 1195–96 (9th Cir. 2001).


                                           24
C.     Alleged Creation Of A New Privilege Exception.

       There is one other argument we must address. Jakubaitis contends

that, by conducting a balancing test, the bankruptcy court effectively

created a new exception to the psychotherapist-patient privilege. As

Jakubaitis puts it, this so-called exception is at odds with Jaffee’s holding

that the privilege is absolute. He additionally complains that this

“exception” is not authorized or permitted by the Bankruptcy Code, citing

Law v. Siegel, 571 U.S. 415, 421 (2014).

       This argument has no merit. The bankruptcy court only used its

balancing test to ensure protection of Jakubaitis’ privacy and

confidentiality interests, which extend beyond the scope of the privilege.

As we stated above, the patient’s privacy rights in confidential medical and

mental health information are legally distinct from the psychotherapist-

patient privilege. See Caesar, 542 F.2d at 1067–68 & n.10.9 Unlike the

privilege, which Jaffee described as absolute and unqualified, privacy rights

are not absolute. Rather, they are subject to compelling state interests.

Courts can employ balancing tests to address the competing interests for

       9
          Caesar deals with the interaction of state privilege law with federal and state
privacy rights. We only rely on Caesar to the extent of its examination of the privacy
rights. State privilege law has no application to this appeal. State privilege law applies
only when the evidence sought relates exclusively to state law claims. Dynamic Fin.
Corp. v. Kipperman (In re N. Plaza, LLC), 395 B.R. 113, 122 (S.D. Cal. 2008) (citing Fed. R.
Evid. Rule 501; Agster v. Maricopa Cty., 422 F.3d 836, 839 (9th Cir. 2005)); see also Sony
Elecs., Inc. v. Hannastar Display Corp. (In re TFT-LCD (Flat Panel) Antitrust Litig.), 835 F.3d
1155, 1158 (9th Cir. 2016) (holding that when evidence relates to both federal and state
claims, federal common law governs privilege issues).

                                              25
and against disclosure of the confidential information. Id.; accord Stallworth,

288 F.R.D. at 444 (holding that the privacy right “is not absolute and, unlike

the psychotherapist-patient privilege . . . is subject to a balancing test”).

       One of the recognized competing public interests is ensuring “that

truth is ascertained in legal proceedings in its courts of law.” Caesar, 542

F.2d at 1069. Here, the bankruptcy court conducted a balancing test. In

doing so, its predominant concern was the ability of Jakubaitis to

selectively disclose confidential mental health information to undermine

the court’s ascertainment of the truth:

       Moreover, viewed as a balancing test, Defendant cannot be
       allowed to interject self-serving claims of treatment or
       medication every time he is asked about awkward subjects or
       contradictions in testimony. Since his credibility is central to
       this case, such a free-floating means of evasion would work a
       serious disadvantage to the Plaintiff that the law cannot
       countenance.10

       The court’s balancing of interests also is reflected in its efforts to

narrowly tailor the breadth of the required disclosure and to restrict further


       10
          This quotation is taken from the court’s tentative ruling, which Jakubaitis
included in his excerpts of record without any objection from the Plaintiffs. The
bankruptcy court never specifically adopted its tentative ruling as its final ruling. Even
so, the court made comments at the hearing expressing the same concern about
protecting the court’s ability to meaningfully assess Jakubaitis’ credibility. The court
also expressed concern that allowing Jakubaitis to baldly claim without further
disclosure that his medications affected his ability to accurately answer questions and
his ability to understand those questions would effectively give him a license to lie
under oath, without any opportunity for the adverse party to challenge the claim. See
Hr’g Tr. (Feb. 15, 2018) at pp. 3, 6, 11-12.

                                            26
dissemination. The court took into consideration Jakubaitis’ concerns

regarding the potential for abuse of the disclosed confidential information.

It addressed those concerns by suggesting ways to restrict the further

spread of the disclosed confidential information. It also addressed those

concerns by warning the Plaintiffs that unauthorized dissemination of the

information could result in severe legal consequences.

     In short, the bankruptcy court’s use of a balancing test for these

purposes was permissible and appropriate. Therefore, we reject Jakubaitis’

“new exception” argument.

                              CONCLUSION

     For the reasons set forth above, we AFFIRM IN PART and REVERSE

IN PART the bankruptcy court’s order denying Jakubaitis’ second

protective order motion.




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