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Absent Claim for Emotional Damages, Prisoner’s Psychotherapist-Patient Privilege Remains Intact

The Second Circuit U.S. Court of Appeals has entered a detailed opinion on the issue of psychotherapist-patient privilege when a district court is confronted with a request by prison officials to obtain a prisoner’s psychiatric records in discovery in a civil rights action. The appellate court concluded the privilege could not be overcome when the prisoner was not seeking damages for emotional harm in his lawsuit.

While imprisoned at New York’s Sing Sing Correctional Facility on December 20, 1999, prisoner Nathaniel Sims was being strip searched when guards Mike Blot and Francisco Carballo allegedly assaulted him without provocation or justification. The guards, however, claimed that Sims started the altercation.

Sims filed a civil rights complaint; after he was denied counsel, the defendants took his deposition. The defendants subsequently served a demand for production of “all psychiatric records of [Sims] since [his] incarceration in 1993.” Sims was appointed counsel after the deposition, and his attorney objected to the production request.

The district court ordered Sims to produce the documents. After the case was initially dismissed for failure to exhaust administrative remedies, an amended complaint was filed. The production order was reinstated and Sims filed a motion with the Second Circuit for mandamus relief.

The Court of Appeals held it had jurisdiction to review pretrial discovery orders on mandamus in cases that involve “the extension of an established principle to an entirely new context.” The loss of a plaintiff’s privilege related to psychiatric records pending final judgment in a lawsuit was deemed problematic because “’a remedy after final judgment cannot unsay the confidential information that has been revealed….’” Further, the Court’s review was necessary to prevent discovery practices that have “potentially broad applicability and influence of the privilege ruling under attack.” Sims’ mandamus petition presented all of these factors.

The Second Circuit found that the district court’s order allowing production of Sims’ psychiatric records would make the confidentiality of psychotherapist-patient communication uncertain – if not extinguished – in a great number of cases. The appellate court held that Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923 (1996) was controlling precedent. Jaffee required federal courts “to recognize that confidential communications between a licensed psychotherapist – including a licensed social worker engaged in psychotherapy – 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.”

The Jaffee ruling noted that “[l]ike other testimonial privileges, the patient may of course waive the protection.” Fairness principles require waiver to apply so “a party cannot partially disclose privileged communications or affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny by the opposing party.” Moreover, “[p]arties may forfeit a privilege by exposing privileged evidence, but do not forfeit one merely by taking a position that the evidence might contradict.”

The district court had found that despite the fact that Sims’ complaint only sought damages for the physical harm he suffered due to the guards’ excessive use of force, and although his attorneys had explicitly stated he abandoned, did not claim and would not present evidence for any mental or emotional damages, that Sims had waived privilege when he testified at the deposition concerning his mental health issues.

The appellate court held that since the pleadings filed by Sims’ attorneys only sought damages for physical injuries, he did not waive his psychotherapist-patient privilege. As the deposition was without the assistance of counsel, leniency applied as to the waiver issue. Moreover, even had Sims asserted damages for mental or emotional harm, he was permitted to voluntarily withdraw those claims in a civil action to protect his privileged psychiatric records.

The Second Circuit also rejected the defendants’ argument that the privilege should be overcome to allow them to prove that Sims had masochistic or suicidal tendencies that led him to start the fight. The Court held that if Sims had such tendencies, that was “a far better reason to deny disclosure than to grant it.” The public interest “in securing psychiatric help for a patient who has suicidal tendencies” would be chilled if an accused assailant was allowed to transcend the privilege of confidentiality by arguing that the “existence of such tendencies indicates that the patient started the fight.” The appellate court held that the “’suicidal tendencies’ rationale exceeded appropriate bounds of discretion.”

The defendants further argued that the privilege should not apply when it is alleged or implied that an attack on the plaintiff was unprovoked. However, this would lead to the plaintiff and defendants being required to disclose their respective mental health records in any assault or excessive force case. Furthermore, the Court of Appeals rejected the contention that a plaintiff who requests damages for pain and suffering has waived privilege “because the psychiatric records might conceivably disprove the experiencing of pain and suffering”; that any claim of “garden-variety injury” waives the privilege; and that a plaintiff’s mental health is placed in issue whenever he makes a claim for “unspecified damages,” which might “include some sort of mental injury.”

In conclusion, the Second Circuit held that a plaintiff does not forfeit his psychotherapist-patient privilege merely by asserting a claim for injuries that does not include emotional damages, or by merely stating that he suffers from a condition such as depression or anxiety for which he does not seek damages. Additionally, a plaintiff may withdraw or formally abandon all claims for emotional damages in order to avoid forfeiting the privilege, and a party’s privilege is not overcome when his mental state is put in issue only by another party.

The Court of Appeals therefore granted mandamus relief and vacated the district court’s order requiring production of Sims’ psychiatric records. See: Sims v. Blot, 534 F.3d 117 (2d Cir. 2008).

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Related legal case

Sims v. Blot