United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Harjani, United States Magistrate Judge.
Joint Motion Challenging Plaintiffs'
Psychotherapist-Patient Privilege Assertion [Coleman 165,
Fulton 183] asks this Court to: (1) find that
Plaintiffs have waived any psychotherapist-patient privilege
over their mental health and substance abuse records; and (2)
enter Defendants' proposed Health Insurance Portability
and Accountability Act of 1996 (“HIPAA”) and
Mental Health Protective Order. Doc  at 1.
reasons stated below, Defendants' motion is granted.
1994, Plaintiffs Derrell Fulton and Nevest Coleman were
arrested and charged with rape and murder. Doc.  at 1.
Plaintiffs were subsequently convicted and sentenced to
lengthy prison terms. Id. After spending over 23
years in prison, DNA testing on the victim's fingernails
and clothing allegedly exonerated Plaintiffs. Id.;
Doc.  at 2.
instant, parallel litigations, Plaintiffs allege that they
were wrongfully convicted and incarcerated as a result of the
individually-named defendants' conduct. Doc.  at 2.
More specifically, Plaintiffs allege that the
individually-named defendants physically and mentally coerced
false confessions from them. Id. Plaintiffs
accordingly assert causes of action under 42 U.S.C. §
1983 for fabrication of evidence, coerced confession,
conspiracy, and failure to intervene. Id. Plaintiffs
further allege related state-law claims for malicious
prosecution, intentional infliction of emotional distress,
and conspiracy. Id. Against Defendant City of
Chicago, Plaintiffs allege Monell claims.
Psychotherapist-Patient Privilege Has Been Waived
have issued document subpoenas seeking Plaintiffs' mental
health records from multiple institutions, including prisons
where Plaintiffs were incarcerated. Doc.  at 2. For
example, the Hill Correctional Center subpoena at issue in
the parties' briefing seeks “all medical and mental
health treatment records” relating to Nevest Coleman.
[168-1] at 1. Plaintiff Coleman asserts that Plaintiffs enjoy
psychotherapist-patient privilege over such mental health
records. Doc.  at 2. Defendants argue that Plaintiffs
waived their psychotherapist-patient privilege when they
“put their emotional and psychological injuries at the
forefront of their damages claims.” Doc.  at 4.
federal common law psychotherapist-patient privilege prevents
disclosure of confidential communications between a licensed
psychotherapist or social worker and a patient in the course
of diagnosis or treatment. Jaffee v. Redmond, 518
U.S. 1, 15 (1996). “The psychotherapist privilege
serves the public interest by facilitating the provision of
appropriate treatment for individuals suffering the effects
of a mental or emotional problem.” Id. at 11.
Like other testimonial privileges, the holder may waive the
psychotherapist-patient privilege. Id. at 15 n.14.
following Jaffee have devised three approaches to
determine when a patient has waived psychotherapist-patient
privilege: (1) a broad application of waiver; (2) a narrow
application; and (3) a middle ground. See generally
Laudicina v. City of Crystal Lake, 328 F.R.D. 510, 513
(N.D. Ill. 2018). Under the broad approach, a patient waives
psychotherapist-patient privilege “by merely seeking
damages for emotional distress.” Id. at 513
(citation omitted). With the narrow application, a patient
waives the privilege “only when she affirmatively
relies on her communications with the psychotherapist or
calls the therapist as a witness.” Taylor v.
Chicago, No. 14 C 737, 2016 WL 5404603, at *2 (N.D. Ill.
Sept. 28, 2016). According to the “middle ground”
approach, a waiver does not occur when the patient is only
seeking “garden variety” damages. Id.
(citation omitted). Although there is no single definition
for “garden variety” damages, at least one court
in this Circuit has defined “garden variety”
damages as meaning: “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.'” Flowers v. Owens, 274 F.R.D.
218, 225 (N.D. Ill. 2011) (quoting Santelli v.
Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999)).
argue that the Seventh Circuit's decision in Doe v.
Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006), adopts the
broad approach. Doc.  at 5-6. Defendants specifically
highlight the Oberweis Court's statement that,
“[i]f 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.” Id. at 5 (internal quotation marks
omitted) (quoting Oberweis, 456 F.3d at 718).
Defendants are not alone in their reading of
Oberweis. See Laudicina, 328 F.R.D. at 514
(finding Seventh Circuit adopted broad approach in
Oberweis and collecting cases within and outside
Seventh Circuit recognizing broad waiver of
psychotherapist-patient privilege in Seventh Circuit);
Taylor, 2016 WL 5404603, at *2-3 (holding Seventh
Circuit employed the broad approach in Oberweis).
However, numerous judges in this district have analyzed this
issue, with no consensus as to what the Seventh Circuit truly
meant with its brief statement, without much analysis, in
apparently argues against the broad approach by stating that
Plaintiffs' pleading of emotional damages, alone, does
not establish that they have waived the privilege over their
entire mental health histories. Doc.  at 4. He further
argues that courts in this district read Oberweis
more narrowly, and that the majority of courts have found
that a party waives psychotherapist-patient privilege by
claiming damages in situations in which the party plans to
introduce evidence of psychological treatment at trial.
Id. at 6-7 (citing Caine v. Burge, No. 11
CV 8996, 2012 WL 6720597, at *2 (N.D. Ill.Dec. 27, 2012)).
these facts, the Court need not decide which waiver approach
applies in this Circuit because Coleman has waived
psychotherapist-patient privilege under any approach.
Beginning with the broad approach, Coleman has pleaded
damages for emotional distress. Doc.  ¶¶ 139
(emotional distress from lack of fair trial), 146 (emotional
distress caused by conspiracy to deprive Coleman of
constitutional rights), 165 (emotional distress from civil
conspiracy), 178 (damages for state law ...