Discovery of Employment Discrimination Plaintiff's Psychotherapist Records - Court Looks Beyond Face of Complaint
It is generally the rule that an employment discrimination plaintiff opens the door to discovery of his otherwise privileged psychotherapy records when he alleges that he suffered emotional distress as a result of the alleged discrimination. The federal district court in Connecticut recently issued a decision that gives the practitioner an excellent overview of an exception to this rule – that such privileged records are sometimes not discoverable where the claims of distress are no more than “garden-variety” conventional pain and suffering. The case is Jacobs v. Connecticut Community Technical Colleges, No. 03:08civ0868 (CFD) (TPS) (July 15, 2009) (download).
However, in Jacobs, the court also discussed an important point about applicability of this exception: That is, even where a Complaint alleges on its face mere garden-variety distress, it is important for defendants to carefully examine not just the pleadings, but the plaintiff’s written discovery responses which are often used by plaintiffs to amplify their claims for damages. It is entirely possible and common that plaintiff's discovery responses will indicate that the distress allegedly at issue is much more than garden variety.
Indeed, as Jacobs indicates, many plaintiffs' attorneys, in an attempt to shield disclosure of their clients’ sensitive (and potentially damaging) psychotherapy records will artfully plead mere garden variety distress while in reality, shooting for the moon when it comes to seeking compensatory damages for the distress allegedly suffered.
Plaintiff's discovery responses in Jacobs included interrogatory answers which identified psychotherapists who have treated Plaintiff for depression and anxiety in relation to the alleged discrimination (on the basis of his sex and sexual orientation) that he claims to have suffered by his employer. In addition, Plaintiff produced as part of his document production two letters from psychotherapists discussing treatment and diagnosis of Plaintiff's severe depression which was linked to his work environment. As Plaintiff's discovery indicated diagnosis of a specific psychiatric disorder allegedly attributed in part to his work environment, the court ordered full production of the psychotherapy records.
This case, in addition to giving a concise and useful overview of the state of the law, should serve as a reminder that looking beyond the face of the Complaint is extremely important when getting to the bottom of what type of distress is really at issue.
