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Barnhart v. PA Consulting Group

March 19, 2007

JUDITH BARNETT, PLAINTIFF,
v.
PA CONSULTING GROUP, INC., DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Judith Barnett brought this employment discrimination action against her former employer, PA Consulting Group, Inc. ("PA"), alleging that PA terminated her employment because of her age and sex, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., and the District of Columbia Human Rights Act, D.C. Code §§ 2-1404.01 et seq. PA has moved for reconsideration of the magistrate judge's Order denying PA's motion to compel discovery of Barnett's general medical records as irrelevant, and mental health records as privileged. The magistrate judge's finding that Barnett's psychotherapy records were privileged was not contrary to clearly established law. However, because Barnett has not demonstrated the irrelevance of her non-psychotherapy records, PA's motion for reconsideration will be granted in part and denied in part.

BACKGROUND

Barnett seeks compensatory damages resulting from an allegedly discriminatory termination and claims that "wounding . . . has caused her pain and suffering." (See Pl.'s Am. Compl. at 4-5.) Prior to and throughout her employment with PA, Barnett underwent "counseling with a therapist for several years . . . focusing primarily on family issues, including her role as a single mother." (Pl.'s Opp'n to Def.'s Mot. for Recons. at 5.) Barnett claims that although the termination caused her to "experience[] feelings of anger, humiliation and anxiety," she "is not contending that the discrimination caused her any permanent or long-lasting emotional injury . . . ." (Pl.'s Resp. to Def.'s First Set of Interrogatories at 9.)

On May 17, 2004, PA propounded its first set of discovery requests on Barnett, seeking, among other things, information and documents relating to Barnett's medical history.*fn1 On July 7, 2004, Barnett responded to these requests by objecting to Interrogatory No. 10 on the grounds that the medical information sought by PA was "an unwarranted invasion of personal privacy, irrelevant and overly burdensome." (Pl.'s Resp. to Def.'s First Set of Interrogatories at 12.) As a result of Barnett's objection, PA moved to compel production of the requested medical and mental health information. (See Def.'s Mot. to Compel Pl.'s Answers to Interrogatories & Production of Docs., Jan. 16, 2006.) The magistrate judge denied PA's request for Barnett's mental health records, finding that the information sought was privileged under the psychotherapist-patient privilege and that Barnett had not waived that privilege by failing to provide a written response to the document production request, by not expressly stating any privilege in her objection, or by claiming an emotional injury. See Mag. J. Mem. Order of June 30, 2006 at 3, 6-8. With respect to PA's request for Barnett's general medical records, the magistrate judge declined to order the production of those records, concluding they were not relevant to Barnett's discrimination claim. See id. at 5-6. PA has now filed a motion for reconsideration of the magistrate judge's decision not to compel production of Barnett's general medical and mental health records, alleging that the magistrate judge's ruling was contrary to established precedent.

DISCUSSION

Fed. R. Civ. P. 72(a) and LCvR 72.2(b) allow a party to seek reconsideration of a magistrate judge's decision in a discovery dispute. "On review, the magistrate judge's decision is entitled to great deference unless it is clearly erroneous or contrary to law, that is, if on the entire evidence the court is left with the definite and firm conviction that a mistake has been committed." Pulliam v. Cont'l Cas. Co., No. 02-370, 2006 WL 3003977, at *2 (D.D.C. Oct. 20, 2006) (citing Virtual Def. & Dev. Int'l, Inc. v. Rep. of Mold., 133 F. Supp. 2d 9, 20 (D.D.C. 2001) (quoting Neuder v. Battelle Pac. Nw. Nat. Lab., 194 F.R.D. 289, 292 (D.D.C. 2000)) (internal quotations omitted); see also LCvR 72.2(c) ("Upon a motion for reconsideration . . . a judge may modify or set aside any portion of a magistrate judge's order . . . found to be clearly erroneous or contrary to law.").

I. PSYCHOTHERAPIST-PATIENT PRIVILEGE

PA alleges that the magistrate judge erred by not finding that Barnett had waived her psychotherapist-patient privilege. (See Def.'s Mem. in Support of Mot. for Recons. at 1, 3.) PA argues that Barnett waived this privilege by failing to object to PA's document request, failing to assert her privilege in response to PA's interrogatory, and by claiming an emotional injury. (See id. at 3-4.)

"[C]onfidential communications between a licensed psychotherapist and 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). "Effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears." Id. at 10; see also In re Sealed Case (Medical Records), 381 F.3d 1205, 1210 (D.C. Cir. 2004) ("Like the spousal and attorney-client privileges, . . . the psychotherapist-patient privilege is rooted in the imperative need for confidence and trust . . . ." (internal quotations omitted)).

A. Failure to Object and Timely Assert Privilege

Rule 34 of the Federal Rules of Civil Procedure provides that "[t]he party upon whom the [document] request is served shall serve a written response within 30 days after the service of the request." Fed. R. Civ. P. 34(b). If the request is objected to, the response should state the "reasons for the objection." Id. "When a party withholds information otherwise discoverable . . . by claiming that it is privileged . . ., the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged . . ., will enable other parties to assess the applicability of the privilege . . . ." Fed. R. Civ. P. 26(b)(5). However, failure to comply with these rules does not automatically constitute waiver of the privilege. See United States v. Philip Morris Inc., 347 F.3d 951, 954 (D.C. Cir. 2003) (explaining that waiver of the attorney-client privilege is not automatic, especially where a party failed to list a document in its privilege log that it believed was covered by its outstanding objection to the scope of the discovery request). "[W]aiver of a privilege is a serious sanction most suitable for cases of unjustified delay, inexcusable conduct, and bad faith." Id. (citation and internal quotation omitted).

While the magistrate judge admonished Barnett for not responding to Document Request No. 26 in writing and not expressly asserting the psychotherapist-patient privilege in response to Interrogatory No. 10, he found that Barnett had preserved her privilege objection by objecting to Interrogatory No. 10, see Mag. J. Mem. Order of June 30, 2006 at 3, which sought identical information about Barnett's medical history, "as an unwarranted invasion of personal privacy, irrelevant and overly burdensome." (Pl.'s Resp. to Def.'s First Set of Interrogatories at 12.) Although PA alleges that it was "contrary to well established law" for the magistrate judge to not find that Barnett's "failure to provide any written objections to PA's document requests and/or to produce a privilege log . . . result[ed] in waiver of any applicable privilege" (Def.'s Mem. in Support of Mot. for Recons. at 3, 4 (emphasis omitted)), such a harsh sanction is not warranted under the circumstances. The facts do not demonstrate, nor does PA allege, that Barnett's failure to respond was due to anything but carelessness. See Mag. J. Mem. Order of June 30, 2006 at 3 (cautioning Barnett to "exercise greater care ...


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