United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Z. Lee, United States District Judge
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  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.
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.
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.
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.
The Psychotherapist-Patient Privilege and Waiver
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.
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 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).
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
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.
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 ...