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Defendants also object to the finding that they violated the California statute as measured by the time of the disclosure. Finally, they contend the magistrate exceeded her authority by ordering the defense counsel to return the personnel file as it amounts to an injunction. Rule 72 a allows a party dissatisfied by a magistrate judge's ruling to file objections for review by the district judge assigned to the case.
The district court reviews the magistrate's ruling to determine if it is "clearly erroneous" or "contrary to law. Construction Laborers Pension Trust, U. International Broth. Rulings on the scope of federal common law privileges, however, are reviewed de novo.
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See Clarke v. American Commerce Nat'l Bank, F. The federal privilege was first recognized by the Supreme Court in Jaffee in June The Court noted that unlike a medical doctor who can rely on objective information, "[e]ffective psychotherapy. The psychiatrist's ability to help the patient is "completely dependent upon the patients' willingness and ability to talk freely.
The Court also concluded that the privilege served a public interest because it facilitates "the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.
By contrast, "[i]f the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation.
In recognizing the privilege, the Supreme Court expressly rejected the approach in which a court "balanced" the evidentiary need for the communications against the patient's privacy concerns. The Court reasoned that "[m]aking 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. The Court was concerned that "the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.
The Court determined that it would be premature to delineate the "full contours" of the privilege and preferred to leave the details of the new privilege to a case-by-cases basis. In a footnote, however, the Court noted that "the patient may of course waive the protection" of the privilege. The Supreme Court had submitted a proposed Rule of Evidence on the psychotherapist-patient privilege to Congress. Although Congress declined to adopt the rule, the language of the proposed rule illuminates the Supreme Court's vision of the parameters of the privilege and the instances in which the privilege would be waived.
The general rule of privilege was the same announced in Jaffee, that is, the patient has the privilege to refuse to disclose "confidential communications, made for the purpose of diagnosis or treatment of his mental or emotional condition. The Court proposed exceptions to the privilege for conditions included in an element of a claim or defense. Specifically, "[t]here is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense.
The courts are divided on the circumstances in which a patient waives her privilege by bringing a law suit. Both lines of cases attempt to honor the policy concerns expressed in Jaffee. All courts agree that a patient who sues the therapist for malpractice waives the privilege. The cases discussed below grapple with the more difficult question of how a plaintiff may waive the privilege by placing her mental condition in issue.
The Ninth Circuit has not yet addressed the federal common law's rule of waiver. The magistrate adopted the narrow or conservative view of waiver and Doe agrees with that line of cases, but defendants favor the broad view. Some courts have held that a plaintiff waives her psychotherapist privilege by alleging in her complaint that she suffered "emotional distress" from the defendant's conduct and by seeking monetary damages for that psychological injury.
The Sarko decision is the leading authority for this view. In Sarko v.
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Penn-Del Directory Co. Plaintiff alleged that her employer violated the ADA by failing to accommodate her tardiness because her difficulty in waking up was a side effect of the medication that she took for depression.
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Defendant asked plaintiff to disclose the records of her psychiatrist. Doe originally included an ADA claim for actual disability. She has, however, dismissed that claim to prevent discovery into her medical and psychological condition. The facts of Sarko do not control the outcome of Doe's case because Doe is relying on the theory of "perceived" disability in her ADA claim. In Sarko, plaintiff claimed her employer should have made reasonable accommodations for her actual disability.
By contrast, Doe does not allege that she suffers from a mental illness. Her claim is that because her employer thought she had a mental disability, he violated the ADA by inquiring into her mental health and demanding that she take a psychiatric examination as a condition of keeping her job. While the facts of Sarko are not controlling, the reasons the court gave for adopting the broad rule of waiver do apply to Doe's case.
Another district court used Sarko's logic to hold that a plaintiff who brought a sexual harassment suit against her employer had waived the privilege by seeking emotional distress damages in connection with that cause of action. Vann v. The Sarko court found that plaintiff had waived her privilege to those medical records by directly placing her medical condition at issue in the law suit. Plaintiff had placed her depression directly in issue by alleging that she was protected by the ADA.
The Sarko court gave three reasons for this conclusion. First, the court noted that other district court opinions decided before Jaffee had held that the litigant may waive the privilege by raising the issue of her psychological state. Second, the privilege was analogous to that provided for attorneys and their clients.
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