The opinion of the court was delivered by: Beryl A. Howell United States District Judge
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.
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 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 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.*fn1
"[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 ...