                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


SAMUEL ST. JOHN,

                      Plaintiff,

                      v.                          Civil Action No. 10-00216 (BAH)

JANET NAPOLITANO, Secretary,
Department of Homeland Security,

                      Defendant.



                                   MEMORANDUM OPINION

       The defendant in this employment discrimination action has moved to compel discovery

of the plaintiff’s medical records, including any records of mental health treatment. This motion

presents the Court with a question which frequently arises in employment discrimination cases

but which has led to divergent outcomes in the courts: Does a plaintiff automatically waive the

psychotherapist-patient privilege merely by asserting that the defendant’s actions caused the

plaintiff to experience emotional distress? For the reasons that follow, the Court concludes that

the answer is no. The Court also concludes that some relevant, non-privileged medical records

must be produced. Accordingly, the Court grants in part and denies in part the motion to compel.

       I.      BACKGROUND

       Plaintiff Samuel St. John filed this employment discrimination action in February 2010

against the Department of Homeland Security. He worked for over thirty years as a federal

employee before his retirement, at a civil service grade level of GS-14, on March 31, 2010.

Amended and Supplement Complaint (“Am. Compl.”) ¶¶ 2, 13. He alleges that the defendant

twice denied him promotions, in August 2008 and January 2009, for a director/program manager
position at a level GS-15 within the Container Security Initiative (“CSI”) Division of the Office

of Field Operations, Customs and Border Protection, due to his national origin and age, and in

retaliation for protected activity, in violation Title VII of the Civil Rights Act, 42 U.S.C. §

2000e, et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 633a, et seq. Am.

Compl. ¶¶ 1, 10, 22, 28. Among the injuries that the plaintiff claims to have suffered due to the

defendant’s alleged discrimination and retaliation are “irreparable loss and injury, including, but

not limited to, humiliation, embarrassment, emotional distress, economic loss, and deprivation of

his right to equal employment opportunity,” and he seeks compensatory damages for these

injuries in his prayer for relief. Id. ¶ 44, “Prayer for Relief,” ¶ (C).

        Discovery has been underway in this case and reached an impasse over the defendant’s

demand that the plaintiff produce medical records for the period of January 1, 2002 to the

present. Specifically, the defendant has requested:

               the production of documents that “support or relate to your calculation and

                allegation of damages as alleged in the Complaint and/or as set forth in Plaintiff’s

                Initial Disclosures.” Def.’s Request No. 9;

               “any and all documents relating to or evidencing the monetary or other benefits,

                and other items or damage or further relief you are seeking in this lawsuit,

                including but not limited to, (a) medical, psychiatric, psychological or counseling

                reports of any kind . . . (b) bills, invoices and/or other documents reflecting the

                date of, nature of and/or amount paid for counseling, medical, psychiatric, and/or

                psychological treatment or diagnosis; and/or (c) notes, correspondence or other

                documents that reflect your need for, attempt to obtain, nature of and/or amount




                                                    2
                paid for counseling, medical, psychiatric, and/or psychological treatment or

                diagnosis.” Def.’s Request No. 12;

               “all documents of any health care provider for the period from January 1, 2002 to

                the present regarding any medical, psychological, or emotional problem or

                condition experienced by you that relate to the allegations in the Complaint or the

                alleged injuries for which you seek compensation in this lawsuit.” Def.’s Request

                No. 13.

       In addition to these document requests, the defendant posed interrogatories requiring that

plaintiff “state whether you are at the present time, or have at any time since January 1, 2002,

sought consultation or treatment by a psychiatrist, psychologist or other mental health care

professional and, if so, identify the name and address of any such health care provider and the

dates of consultation or treatment.” Def.’s Interrog. No. 5; see also Def.’s Interrog. No. 6.

       The plaintiff has responded to these requests, inter alia, by raising various objections and

stating that “he has not consulted or obtained treatment from any health care provider for any

injury resulting from Defendant’s illegal conduct and has not sought or received medical

treatment for the conditions listed in response to interrogatory No. 4 [i.e., injuries related to

emotional distress] for a two-year period before his application and non-selection for the CSI

Director/Program Manager to the present.” Pl.’s Suppl. Resp. to Def.’s Interrog. No. 5. The

plaintiff has also refused to provide a HIPAA release form that would enable the defendant to

obtain records from any healthcare provider directly.

        During a teleconference on February 23, 2011, to resolve this and other discovery

disputes, the Court directed the parties to submit their positions and legal authorities in writing




                                                   3
for the Court’s consideration in determining the defendant’s motion to compel production of the

plaintiff’s medical records for a nine-year period.1

II.      DISCUSSION

         A.       Relevance

      “[W]hen confronted with a discovery demand to which an objection has been made, [the

Court must first] ascertain whether there is a reasonable likelihood or possibility that the

information sought may be relevant to a claim or defense or likely to lead to such evidence.” In

re Rail Freight Fuel Surcharge Antitrust Litig., No. 07-489, 2009 WL 3443563, at *3 (D.D.C.

Oct. 23, 2009). Thus, the first question the Court must answer is whether the plaintiff’s medical

records are relevant to any claims or defenses in this action, and, if so, whether any protective

order under Fed. R. Civ. P. 26(c) ought to limit their production.

      Pursuant to Rule 26, “[p]arties may obtain discovery regarding any matter, not privileged,

that is relevant to the claim or defense.” Fed. R. Civ. P. 26(b)(1). Relevance is construed broadly

for the purposes of discovery. Food Lion, Inc. v. United Food and Commercial Workers

International Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997). On the other hand, the relevance

standard is “not so liberal as to allow a party to roam in shadow zones of relevancy and to

explore matter which does not presently appear germane on the theory that it might conceivably

become so.” Id. (internal quotation marks and citation omitted).

         Here, the plaintiff argues that his medical records are irrelevant because he has stated that

he has not sought treatment from any health care provider for any injury resulting from the

defendant’s conduct and has indicated that he will not offer any expert testimony or medical

records as evidence. See Pl.’s Letter to the Court dated March 2, 2011 (“Pl.’s Letter”) at 3. The

1
 In a Minute Order, dated February 28, 2011, the Court granted the parties’ joint motion to, inter alia, file their
submissions under seal by March 2, 2011 at a length of five pages.


                                                           4
defendant argues that the medical records are relevant because the records may reveal some

alternative explanation for the emotional distress the plaintiff allegedly suffered, providing the

defendant with a potential defense. See Def.’s Letter to the Court dated March 2, 2011 (“Def.’s

Letter”) at 1.

         Mindful that relevance is construed broadly for the purposes of discovery, the Court finds

that at least some of the plaintiff’s medical history is relevant here. Other courts in this district

have also found that a Title VII plaintiff’s medical records are relevant under similar

circumstances. See Barnett v. PA Consulting Group, Inc., No. 04-1245, 2007 WL 845886, at *4

(D.D.C. Mar. 19, 2007) (“[A] defendant is entitled to explore whether causes unrelated to the

alleged wrong contributed to plaintiff’s claimed emotional distress, and a defendant may

propound discovery of any relevant medical records of plaintiff in an effort to do so.”) (internal

quotation marks and citation omitted). There is no basis for finding that medical evidence from

the entire nine-year period from 2002 through the present is relevant, however.2

         Yet even assuming arguendo that evidence from the entire requested time period were

potentially relevant, the Court has “broad discretion to tailor discovery narrowly” under Rule 26,

and “[i]t is appropriate for the court, in exercising its discretion. . ., to undertake some

substantive balancing of interests.” In re Sealed Case (Medical Records), 381 F.3d 1205, 1215

(D.C. Cir. 2004) (quotations omitted). Rule 26(c) provides that a court may “issue an order to

protect a party or person from annoyance, embarrassment, oppression, or undue burden or

expense.” Fed. R. Civ. P. 26(c)(1). Such an order may forbid disclosure altogether, or, among

other measures, “limit[ ] the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P.


2
 The defendant has not identified why its requests seek records dating back to 2002 in particular. The plaintiff does
not appear even to have begun working for the CBP’s Container Security Initiative Division in Washington, D.C.
until 2004. See Am. Compl. ¶ 4.


                                                          5
26(c)(1)(A) and (D). “[A]lthough Rule 26(c) contains no specific reference to privacy or to other

rights or interests that may be implicated, such matters are implicit in the broad purpose and

language of the Rule.” Medical Records, 381 F.3d at 1215 (quotation omitted). Accordingly,

the “court, in its discretion, is authorized by [Rule 26(c)] to fashion a set of limitations that

allows as much relevant material to be discovered as possible, while preventing unnecessary

intrusions into the legitimate interests – including privacy and other confidentiality interests –

that might be harmed by the release of the material sought.” Id. at 1216 (quotation omitted).

         In balancing the competing interests at stake here, the Court finds that disclosure of

some records in the plaintiff’s medical history is warranted, but not the wholesale disclosure of

medical records for the nine-year period, from 2002 through the present, that the defendant

seeks. See E.E.O.C. v. Nichols Gas & Oil, Inc., 256 F.R.D. 114, 123 (W.D.N.Y. 2009)

(defendant’s “contention that any physical malady might cause emotional distress . . . scarcely

gives defendants a license to rummage through all aspects of the plaintiff’s life in search of a

possible source of stress or distress.”) (quoting Evanko v. Elec. Sys. Assocs., Inc., No. 98 Civ.

2851, 1993 WL 14458, at *2 (S.D.N.Y. Jan. 8, 1993)). The defendant asserts such a lengthy

time period is necessary because latent medical conditions “can manifest themselves in different

ways over a period of time.” Def.’s Letter at 4. The Court finds that this is a weak basis for

seeking records over such a broad time period, and that the plaintiff’s medical records from

many years prior to the events alleged in the complaint are highly unlikely to contain much

relevant evidence. On the other hand, medical records are likely to contain sensitive personal

information, a fact underscored by the existence of statutory confidentiality provisions, like those

of the HIPAA Privacy Rule. See Pl.’s Letter at 5. Accordingly, the plaintiff has demonstrated

that the burden of producing such records and the harm to the plaintiff’s privacy interests from



                                                   6
the disclosure significantly outweighs any marginal relevance for the majority of the time period

for which the defendant seeks records. The Court finds that the relevant time period for the

production of the plaintiff’s medical records in response to the defendant’s requests should only

extend from two years prior to the first date of the alleged discrimination through the present (the

“Relevant Time Period”).3 In addition, the defendant is not entitled to production of all of the

plaintiff’s medical records, but only records that have a logical connection to the plaintiff’s

claims of injury. See Nichols Gas & Oil, Inc., 256 F.R.D. at 123. Such records include any non-

privileged mental or emotional health records, records involving new medical issues for which

the plaintiff first sought treatment during the Relevant Time Period, and records involving a

medical condition that the defendant has established, through other discovery, may have caused

the plaintiff emotional distress.4

         B.       Psychotherapist-Patient Privilege

         The plaintiff asserts that any confidential communications with mental health

professionals are privileged. The defendant counters that the plaintiff has broadly waived the

psychotherapist-patient privilege by asserting a claim for damages arising from emotional


3
  In response to an interrogatory regarding the plaintiff’s claims for damages, the plaintiff states that “Plaintiff has
been, and continues to be, injured as a result of mental and emotional distress . . . caused by Defendant’s illegal
actions in an amount to be determined by a jury.” Pl.’s Resp. to Interrog. No. 4. Given the plaintiff’s continuing
claims for emotional distress through the present, the Court finds that the records should be discoverable through the
present.
4
  The plaintiff relies chiefly on two district court cases in arguing that the medical record evidence should be
shielded from discovery entirely. In Broderick v. Shad, 117 F.R.D. 306 (D.D.C. 1987), the Court denied a
defendant’s motion to compel production of medical records in apparent reliance in part on “physician-patient
privilege.” See id. at 309 (citing an earlier district court case which, in turn, analyzed a physician-patient privilege
rooted in D.C. Code § 14-307 (1981)). While no general physician-patient privilege applies here because this case is
a Title VII action in federal court, see Morris v. City of Colorado Springs, No. 09-cv-01506, 2009 WL 4927618, at
*1 (D. Colo. Dec. 18, 2009), the D.C. Circuit has instructed that the existence of applicable state law privileges and
other statutory confidentiality provisions are appropriate factors for the district court to weigh in determining the
scope of permissible discovery under Rule 26. Medical Records, 381 F.3d at 1215-16. Accordingly, the Court has
taken those factors into account in reaching its decision here. In Sanders v. District of Columbia, No. 97-2938, 2002
WL 648965 (D.D.C. Apr. 15, 2002), the other case relied upon by the plaintiff, the Court upheld a magistrate
judge’s ruling granting a protective order under Rule 26(c) that precluded discovery into the plaintiff’s medical
records. Id. at *4-5. It is within a Court’s discretion to preclude discovery of medical records entirely, but such an
outcome is not warranted here based on the Court’s balancing of the parties’ competing interests.

                                                           7
distress. According to the defendant, the plaintiff has put his mental health in issue, thus waiving

any privilege. For the reasons explained below, the Court concludes that the plaintiff has not

waived the psychotherapist-patient privilege.

         In 1996, the Supreme Court held that “confidential communications between a licensed

psychotherapist and [his or her] patients in the course of diagnosis or treatment are protected

from compelled disclosure under Rule 501 of the Federal Rules of Evidence.” Jaffee v.

Redmond, 518 U.S. 1, 15 (1996). In recognizing the psychotherapist-patient privilege, “[t]he

Court squarely rejected the position that a court should balance the need for relevant information

in the particular case before it against the invasion of a patient’s privacy.” Koch v. Cox, 489 F.3d

384, 388-89 (D.C. Cir. 2007) (citing Jaffee, 518 U.S. at 17 (“Making the promise of

confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the

patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the

effectiveness of the privilege.”)).5

         “The Jaffee Court also observed that a patient may of course waive the protection of the

privilege, but it did not speak further to the subject of waiver.” Id. at 389 (internal citation and

quotation omitted). “The Court did provide some guidance relevant to waiver, however, when it

likened the privilege to the attorney-client and spousal privileges.” Id.

         The question of waiver of the psychotherapist-patient privilege arises frequently in civil

actions where a plaintiff alleges emotional distress. In the years since Jaffee, federal courts faced

with this situation have developed divergent approaches for determining whether privilege has


5
  The Jaffee court held that the “psychotherapist privilege covers confidential communications made to licensed
psychiatrists and psychologists” and “should also extend to confidential communications made to licensed social
workers in the course of psychotherapy.” 518 U.S. at 15-16. Jaffee left open the question of whether the privilege
extends to mental health counselors other than licensed psychiatrists, psychologists, and social workers, and
indicated that future courts would need to “delineate [the] full contours” of the privilege. Id. at 18; see also Oleszko
v. State Comp. Ins. Fund, 243 F.3d 1154, 1155-58 (9th Cir. 2001) (extending privilege to unlicensed but trained
workplace counselors).

                                                           8
been waived. Courts applying the so-called “narrow” approach have held that “patients only

waive the privilege by affirmatively placing the substance of the advice or communication

directly in issue.” Koch, 489 F.3d at 390; see also Fitzgerald v. Cassil, 216 F.R.D. 632, 638

(N.D. Cal. 2003). Under the “broad” approach, courts have held that a plaintiff places his or her

medical condition at issue and waives the psychotherapist-patient privilege simply by making a

claim for emotional distress. See Koch, 489 F.3d at 390; see also Schoffstall v. Henderson, 223

F.3d 818, 823 (8th Cir. 2000). A third approach – the “middle ground” approach – draws a

distinction between claims for “garden variety” emotional distress and more severe emotional

distress allegations. Under this approach, “[w]here a plaintiff merely alleges ‘garden variety’

emotional distress and neither alleges a separate tort for the distress, any specific psychiatric

injury or disorder, or unusually severe distress, that plaintiff has not placed his/her mental

condition at issue to justify a waiver of the psychotherapist-patient privilege.” Koch, 489 F.3d at

390 (quoting Jackson v. Chubb Corp., 193 F.R.D. 216, 225 n.8 (D.N.J. 2000)).

       In Koch v. Cox, the D.C. Circuit discussed these different approaches. 489 F.3d at 390.

While the facts in Koch did not require the Court to adopt a particular approach, the Court’s dicta

nonetheless provided important points of guidance. First, the Koch court implicitly critiqued the

“broad” approach to waiver. Analogizing the psychotherapist-patient privilege to the attorney-

client privilege, as suggested by the Supreme Court in Jaffee, the Koch court noted that “[a]

client waives that privilege when he puts the attorney-client relationship in issue-for example, by

suing the attorney for malpractice or by claiming he relied upon the attorney’s advice. . . . By

analogy, a patient would waive the psychotherapist-patient privilege when he sues the therapist

for malpractice, or relies upon the therapist’s diagnoses or treatment in making or defending a

case.” Id. at 389. In other words, under the analogy to attorney-client privilege, merely alleging



                                                9
the experience of emotional distress would not constitute waiver. Second, the Court voiced

concern about the risk of adopting an overly broad standard that would “sub silentio” overrule

Jaffee and instructed that “we must supply a standard for determining whether a patient has

waived the privilege . . . that does not eviscerate the privilege.” Id. at 390. Since the plaintiff in

Koch was not actually asserting any claim for emotional distress, the Court in that case did not

ultimately reach the question of when asserting such a claim may constitute waiver of the

privilege. The Koch court held that a plaintiff who is not asserting emotional distress implicitly

waives the psychotherapist-patient privilege when “he does the sort of thing that would waive the

attorney-client privilege, such as basing his claim upon the psychotherapist’s communications

with him, or, as with the marital privilege, selectively disclosing part of a privileged

communication in order to gain an advantage in litigation.”           Id. at 391 (internal citation,

quotation, and alteration omitted).

       In Sims v. Blot, 534 F.3d 117 (2d Cir. 2008), the Second Circuit did face the “question of

whether a plaintiff’s claim for injuries that include only the garden-variety emotional injury that

would ordinarily result from” the defendant’s alleged misconduct constituted a waiver of

privilege. Id. at 129. The Second Circuit held that a plaintiff’s assertion of claims for “garden

variety” emotional distress or “unspecified damages” that may include some sort of mental

injury does not automatically waive the privilege. Id. at 141-42. The Sims court strongly

endorsed the D.C. Circuit’s reasoning in Koch, id. at 133-34, and its reliance on applying

meaningful analogies between the psychotherapist-patient privilege and other testimonial

privileges in assessing waiver. Regarding the argument that any claim for emotional distress

waives the privilege, the Second Circuit commented that “[i]n reality respondents simply seek to

have the privilege breached whenever there is a possibility that the psychiatric records may be



                                                 10
useful in testing the plaintiff’s credibility or may have some other probative value. To accept

these contentions would inject the balancing component that Jaffee foreclosed . . .” Id. at 141.

This Court concludes that the concerns of the Second Circuit are well founded and closely

aligned with the D.C. Circuit’s concerns that an overly broad doctrine of implicit waiver would

effectively overrule Jaffee.

       Courts in this district have also applied the approach endorsed in Sims, under which

“garden variety” emotional distress allegations are not deemed to waive privilege. In Barnett v.

PA Consulting Group, Inc., a discrimination case similar to this one, the Court upheld a

magistrate judge’s ruling that the plaintiff “had not waived her psychotherapist-patient privilege

by claiming emotional damages” that were less than severe. Barnett, 2007 WL 845886, at *3.

The Court ruled that there was no controlling authority indicating “that [the plaintiff’s]

allegations of an ordinary reaction of anger, humiliation and anxiety at being fired” placed her

mental state at issue and thus waived privilege. Id. at *4.

       This Court agrees that a plaintiff’s allegation of ordinary or “garden variety” emotional

distress resulting from a defendant’s alleged misconduct does not waive the psychotherapist-

patient privilege. This conclusion gives effect to the D.C. Circuit’s imperative that “we must

supply a standard for determining whether a patient has waived the privilege . . . that does not

eviscerate the privilege.” Koch, 489 F.3d at 390. To hold otherwise would mean that privilege

would be waived routinely in any case where a plaintiff sought recompense for the ordinary pain

and suffering experienced in response to adverse employment actions that the plaintiff claims are

illegal. Cf. Benham v. Rice, No. 03-cv-01127, ECF No. 115, at *3 (D.D.C. Sept. 14, 2007)

(reaching the same conclusion in the context of ordering mental examinations pursuant to Fed. R.




                                                11
Civ. P. 35). Such an outcome would have “an unwarranted chilling effect on persons who

believe that they have been subjected to unlawful discrimination.” Id.

         Federal courts have developed several functional factors to analyze whether a plaintiff’s

claims for emotional distress are “garden variety” or more severe. The district court in Turner v.

Imperial Stores, 161 F.R.D. 89 (S.D. Cal. 1995) identified five factors that indicate a plaintiff has

put his or her mental state in controversy: “(1) a cause of action for intentional or negligent

infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or

disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff’s offer of expert

testimony to support a claim of emotional distress; and/or (5) plaintiff’s concession that his or

her mental condition is ‘in controversy.’” Id. at 95. While Turner applied these factors to assess

whether a party’s mental condition was “in controversy” for the purposes of ordering the party to

submit to a mental evaluation pursuant to Rule 35, the Court finds these factors equally

applicable for analyzing whether or not an emotional distress claim is “garden variety” in the

waiver context as well.6 Other courts in this district have applied similar factors in determining

whether a plaintiff’s claim for emotional distress goes beyond the “garden variety.”                                See


6
  A few courts have suggested that distinguishing “garden variety” emotional distress allegations from more severe
allegations may be useful in the Rule 35 context, but not in the context of determining waiver of privilege. See, e.g.,
McKinney v. Del. Cnty. Mem’l Hosp., No. 08-1054, 2009 WL 750181, at *5 (E.D. Pa. Mar. 20, 2009). This Court
disagrees and joins those courts that have found the contexts to be analogous. See Jackson v. Chubb Corp.,193
F.R.D. 216, 225 n.8 (D.N.J. 2000). Under Rule 35, “[t]he court . . . may order a party whose mental or physical
condition . . . is in controversy to submit to a physical or mental examination by a suitably licensed or certified
examiner.” Fed. R. Civ. P. 35(a)(1). Rule 35 also imposes other requirements, such as the requirement that an order
to submit to examination be made “on motion for good cause,” Fed. R. Civ. P. 35(a)(2)(A), but the condition
precedent to a Rule 35 order – that the party’s mental condition be “in controversy” – raises essentially the same
question as whether a party has sufficiently put his or her mental condition at issue to justify a finding that privilege
has been waived. At a practical level, the Court notes that while a Rule 35 order to submit to a mental examination
may generally be more burdensome to a party than an order to produce documents, the harm to a party’s privacy
interests occasioned by a broad finding of waiver of the psychotherapist-patient privilege may be significantly
greater, depending on the situation. See E.E.O.C. v. Serramonte, 237 F.R.D. 220, 224 (N.D. Cal. 2006). (“This
Court finds that if anything, delving into a plaintiff’s medical or psychiatric records is even more invasive than
conducting a medical or psychological examination, and that the standard for waiver should be at least as rigorous as
that in Turner.”) The Court also emphasizes the important distinction between the question of waiver, to which the
Turner factors are germane, and the threshold question of relevance, which the Court has independently analyzed
above.

                                                           12
Benham, No. 03-cv-01127, ECF No. 115, at *3-5 (in Rule 35 context). In addition, the D.C.

Circuit also cited similar factors in defining “garden variety” emotional distress claims. See

Koch, 489 F.3d at 390 (describing “middle ground” approach that does not recognize waiver of

privilege “where a plaintiff merely alleges ‘garden variety’ emotional distress and neither alleges

a separate tort for the distress, any specific psychiatric injury or disorder, or unusually severe

distress”).

        In this case, there are no factors showing that the plaintiff has alleged more than “garden

variety” emotional distress of the kind an ordinary person might experience following an episode

of discrimination. The plaintiff has not alleged that a specific mental or psychiatric injury or

disorder resulted from the defendant’s actions. See Am. Compl. ¶¶ 44-45; see also Pl.’s Resp. to

Interrog. No. 6 (“Plaintiff states that he has not consulted or obtained treatment from any health

care provider for any injury resulting from Defendant’s . . . conduct.”). Nor has the plaintiff

asserted a separate cause of action for emotional distress. See Am. Compl. ¶¶ 46-50. The

plaintiff here has indicated that he will not offer expert testimony or rely on medical records as

evidence of emotional distress. See Pl.’s Letter at 3. Nor does the Court find that the plaintiff

alleged that his emotional distress is “unusually severe.” In the Amended Complaint, the

plaintiff alleged injuries including “humiliation, embarrassment, emotional distress, economic

loss, and deprivation of his right to equal employment opportunity.” Am. Compl. ¶ 44. In his

Rule 26 initial disclosures, he described his injuries as including “severe embarrassment and

humiliation, loss of self-esteem, loss of career satisfaction, and feelings of worthlessness and

shame.” Pl.’s Init. Disclosures at 2. Despite the plaintiff’s use of the word “severe,” the Court

does not find that these statements describe emotional distress that is “unusually severe” or goes

beyond the ordinary emotional distress that would be engendered in reaction to illegal



                                                 13
discrimination. Accordingly, the plaintiff here has alleged only “garden variety” emotional

distress and has not waived the psychotherapist-patient privilege.

       In arguing that the plaintiff has implicitly waived the privilege, the defendant relies

chiefly on Kalinoski v. Evans, 377 F. Supp. 2d 136 (D.D.C. 2005) and Roberson v. Bair, 242

F.R.D. 130 (D.D.C. 2007). These cases are unavailing for two key reasons. First, they were

decided before the D.C. Circuit’s ruling in Koch v. Cox, which provided valuable guidance on

these issues. Indeed, Kalinoski appears to have applied the “broad” approach to waiver of

privilege in reliance on language from an Eighth Circuit opinion that was explicitly critiqued by

the D.C. Circuit in Koch. See Kalinoski 377 F. Supp. 2d at 138 (citing Schoffstall v. Henderson,

223 F.3d 818, 822 (8th Cir. 2000)); Koch, 489 F.3d at 389 (“We need not decide whether making

a claim for emotional distress necessarily waives the privilege . . . in order to observe that an

affirmative answer does not follow from the Schoffstall court’s analogy to the attorney-client

privilege.”). Second, in any event, the plaintiffs in Kalinoski and Roberson appear to have

alleged more than “garden variety” emotional distress. In Kalinoski, the plaintiff alleged “that

defendant’s actions caused her severe emotional distress and led her to seek the services of a

mental health professional.” 377 F. Supp. 2d at 138. In Roberson, the plaintiff did not “contest

that her mental condition [was] in controversy. She unquestionably claim[ed] that she [was]

suffering from two identifiable forms of mental illness or disorder and that those conditions were

caused by Defendant.” 242 F.R.D. at 137. The Roberson plaintiff also intended to rely on expert

testimony regarding her mental conditions. Id.

       Accordingly, the plaintiff here has not waived the psychotherapist-patient privilege and

may assert the privilege where appropriate.

       C.      Privilege Log

       Given the Court’s conclusion that the plaintiff may invoke the psychotherapist-patient
                                                 14
privilege, the defendant contends that the plaintiff must still produce a privilege log specifying

any otherwise responsive documents over which the plaintiff is asserting the psychotherapist-

patient privilege. Rule 26(b)(5)(A) states that “[w]hen a party withholds information otherwise

discoverable by claiming that the information is privileged . . ., the party must (i) expressly make

the claim [and] (ii) describe the nature of the documents, communications, or tangible things not

produced or disclosed . . . in a manner that, without revealing information itself privileged or

protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). While the

Court could require the plaintiff to produce a document-by-document privilege log in appropriate

circumstances, such a log is unnecessary to satisfy Rule 26(b)(5)(A) for documents subject to

psychotherapist-patient privilege in this case. See In re Imperial Corp. of America, 174 F.R.D.

475, 477-79 (S.D. Cal. 1997) (ordering categorical privilege log instead of document-by-

document log). The Court finds that the plaintiff may assert the psychotherapist-patient privilege

in satisfaction of Rule 26(b)(5) by producing a categorical privilege log here. That privilege log

should specify the following information with respect to each mental health professional whose

communications with the plaintiff have resulted in documents that are withheld for privilege:

         1. The name, address, and relevant qualifications of the mental health professional;
         2. The approximate time period of the privileged communications;
         3. The general nature of the communications (e.g., “marriage counseling records”);

       As discussed above, the Relevant Time Period for which the plaintiff should provide

responsive medical records, including mental health records, is from two years prior to the

alleged discrimination through the present.

       D.      Sealed Submissions

       As mentioned above, in a Minute Order, dated February 28, 2011, the Court granted the

parties’ joint motion to, inter alia, file their submissions under seal by March 2, 2011 at a length


                                                 15
of five pages. While the Court has discretion to seal filings where appropriate, “the general

presumption [is] that court documents are to be available to the public.” In re Pepco

Employment Litig., No. 86-0603, 1992 WL 115611, at *5-7 (D.D.C. May, 8 1992); see also

Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991) (noting the

“strong presumption in favor of public access to judicial proceedings” and the factors to be

weighed in deciding to seal documents). In light of the limited amount of sensitive material

contained in the parties’ letters, the Court now directs the parties to redact any sensitive

information from the letters and refile copies of the letters with the Court for filing on the public

record. The parties shall meet and confer to agree upon the necessary redactions, if any, and

shall jointly refile copies of their letters within ten days of this opinion and the accompanying

order.

IV.      CONCLUSION

         For the reasons stated above, the Court grants in part and denies in part the motion to

compel. The plaintiff must provide medical record documents for the period from two years

prior to the alleged discrimination through the present that are responsive to the defendant’s

requests and that have a logical connection to the plaintiff’s claims of injury. Records with a

connection to the plaintiff’s injuries include non-privileged mental or emotional health records,

records involving new medical issues for which the plaintiff first sought treatment during the

Relevant Time Period, and records involving a medical condition that the defendant has

established, through other discovery, may have caused the plaintiff emotional distress. The

plaintiff has not waived the psychotherapist-patient privilege and may assert the privilege where

applicable in the manner described by the Court. Finally, the parties must refile redacted copies

of their sealed letters within ten days for public filing on the record.



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DATE: March 31, 2011




                             /s/Beryl A. Howell
                            BERYL A. HOWELL
                            United States District Judge




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