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Taylor v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

September 28, 2016

CITY OF CHICAGO, et al., Defendants.


          John Z. Lee, United States District Judge

         Daniel Taylor spent more than 20 years in prison for two murders that he did not commit. He has now sued the City of Chicago and various individual police officers alleging they coerced a false confession from him and hid exculpatory evidence that would have proven his innocence. Currently before the Court is Taylor's objection [305] to the Magistrate Judge's order finding that Taylor waived the psychotherapist-patient privilege as to records of treatment he received before he was arrested. For the reasons provided below, the Court overrules Taylor's objection.


         In his complaint, Taylor is seeking to recover for the “emotional pain and suffering caused by losing 20 years in the prime of his life.” Compl. ¶ 63, ECF No. 1. “He missed out on the ability to share holidays, births, funerals and other life events with loved ones, the opportunity to fall in love and marry and to pursue a career, and the fundamental freedom to live one's life as an autonomous human being.” Id. As a result, Taylor “suffered tremendous damage, including physical sickness and injury and emotional damages.” Id. ¶ 65.

         As part of discovery into Taylor's allegations of emotional injuries, Defendants subpoenaed records of Taylor's treatment. The particular records at issue here are from his time at Yellowstone Boys & Girls Ranch. Taylor was there in 1992, prior to his arrest, and received mental health treatment. In response to Defendants' request for those documents, Taylor argued that the records were protected by the psychotherapist-patient privilege.

         Defendants filed a motion to compel the records. See Mot. Compel, ECF No. 264. The Magistrate Judge held that Taylor had waived the privilege by asserting the type of emotional damages that he did. See Mem. Op. & Order at 11-12, 20-21, ECF No. 298. In order to determine whether the Yellowstone records should be turned over, the Magistrate Judge ordered an in camera review to determine their relevancy to Taylor's damages. See Id. at 21-22. Taylor objects to the finding of waiver. See Pl.'s Obj., ECF No. 305.


         A. The Psychotherapist-Patient Privilege and Waiver

         Federal Rule of Evidence 501 authorizes federal courts to define the boundaries of privilege “in light of reason and experience.” In 1996, the Supreme Court accepted that invitation and established the psychotherapist-patient privilege under federal common law. See Jaffee v. Redmond, 518 U.S. 1, 15 (1996). In doing so, the Court recognized the importance of confidentiality for effective psychotherapy. See Id. at 10. Importantly for this case, the Court noted in a footnote that, like other testimonial privileges, the psychotherapist-patient privilege is subject to waiver. See Id. at 15 n.14.

         In the 20 years since the Supreme Court's opinion in Jaffee, federal courts have tried mightily to define whether and to what extent a plaintiff waives the psychotherapist-patient privilege when he files a civil lawsuit seeking damages for emotional distress. The decisions addressing this issue have converged around three approaches: the narrow approach, the broad approach, and the garden-variety approach. Each approach attempts to strike the appropriate balance between the privacy rights of the plaintiff, on the one hand, and the need for the defendant to obtain information to contest the plaintiff's claims, on the other.

         Under the narrow approach, a plaintiff waives the privilege only when she affirmatively relies on her communications with the psychotherapist or calls the therapist as a witness. See Fitzgerald v. Cassil, 216 F.R.D. 632, 636 (N.D. Cal. 2003). Analogizing to the attorney-client privilege, courts that have adopted this approach reason that the privilege is not waived merely by putting at issue the underlying substance of communications with an attorney. Instead, the attorney-client privilege is waived, for example, when the party relies on the advice of counsel as a defense. See Id. at 367. In this way, the narrow approach would find waiver only when the plaintiff plans on using her communications with her psychotherapist to further her claim. See id; see also Hucko v. City of Oak Forest, 185 F.R.D. 526, 529-30 (N.D.Ill. 1999); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229-30 (D. Mass. 1997).

         The broad approach finds waiver of the psychotherapist-patient privilege any time a plaintiff puts his emotional state at issue. See Doe v. City of Chula Vista, 196 F.R.D. 562, 569 (S.D. Cal. 1999) (“But to [e]nsure a fair trial, particularly on the element of causation, the court concludes that defendants should have access to evidence that Doe's emotional state was caused by something else. Defendants must be free to test the truth of Doe's contention that she is emotionally upset because of the defendants' conduct.”).

         The third and most prevalent approach is the so-called garden-variety approach. Under this regime, a plaintiff waives the psychotherapist-patient privilege only if she is seeking anything more than mere “garden-variety” emotional damages. See Flowers v. Owens, 274 F.R.D. 218, 224-25 (N.D.Ill. 2011). What exactly constitutes garden-variety damages is not easy to pin down. The most straightforward definition is: “the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.” Kunstler v. City of N.Y., 2006 WL 2516625, at *9 (S.D.N.Y. Aug. 29, 2006); see also Flowers, 274 F.R.D. at 225-26 (“the generalized insult, hurt feelings and lingering resentment which anyone could be expected to feel given the defendant's conduct; the normal distress experienced as a result of the [claimed injury]; the negative emotions that [plaintiff] experienced essentially as the intrinsic result of the defendant's alleged conduct, but not the resulting symptoms or conditions that she might have suffered; the generalized insult, hurt feelings, and lingering resentment that does not involve a significant disruption of the plaintiff's work life and rarely involves more than a temporary disruption of the claimant's personal life” (citations omitted)). Thus, under this approach, waiver depends on how a plaintiff characterizes her emotional harm-the more extensive and specific the description of the harm (which, presumably, would persuade a jury to award more in damages), the more likely the waiver.

         The Seventh Circuit has, in fact, weighed in on the question. In Doe v. Oberweis Dairy, the court held, “If a plaintiff by seeking damages for emotional distress places his or her psychological state in issue, the defendant is entitled to discover any records of that state.” 456 F.3d 704 (7th Cir. 2006) (Posner, J.). In Oberweis, the plaintiff sued her former employer under Title VII and sought damages for emotional distress. The court found this sufficient to waive the psychotherapist-patient privilege. See Id. Although in not-so-many words, the court in Oberweis employed the broad ...

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