United States District Court, N.D. Ohio, Eastern Division
R. ADAMS UNITED STATES DISTRICT JUDGE.
November 23, 2016, Defendant Eric Paull sought a protective
order from this Court. Specifically, Paull sought to prevent
discovery of his medical records and his mental health care
records. On that same day, this Court referred the matter to
Magistrate Judge Burke for a report and recommendation.
Plaintiff Alexis Dekany opposed the motion on November 29,
2016, and Paull replied on December 5, 2016. On December 7,
2016, the Magistrate Judge issued a Report and
Recommendation, opining that the motion should be granted in
part and denied in part. Paull objected to the Report, and
the Court now resolves those objections.
respect to Paull's medical records, the Report concluded
that a protective order should issue with respect to
Paull's non-psychological medical records. Dekany did not
challenge that aspect of the Report. Accordingly, that
portion of the Report is ADOPTED and a protective order shall
issue preventing discovery of Paull's non-psychological
respect to his psychological records, Paull contends that the
Report erred when it concluded that he had waived any
privilege attached to those records. With respect to these
type of records, the Supreme Court has noted: “Because
we agree with the judgment of the state legislatures and the
Advisory Committee that a psychotherapist-patient privilege
will serve a “public good transcending the normally
predominant principle of utilizing all rational means for
ascertaining truth, ” Trammel, 445 U.S., at
50, 100 S.Ct., at 912, we hold that confidential
communications between a licensed psychotherapist and her
patients in the course of diagnosis or treatment are
protected from compelled disclosure under Rule 501 of the
Federal Rules of Evidence. Jaffee v. Redmond, 518
U.S. 1, 15 (1996). A patient may waive the
psychotherapist-patient privilege by knowingly and
voluntarily relinquishing it, such as by disclosing the
substance of therapy sessions to unrelated third parties.
United States v. Hayes, 227 F.3d 578, 586 (6th
Cir.2000). The burden rests on the person invoking the
privilege to demonstrate its applicability, including the
absence of any waiver of it.” United States v.
Bolander, 722 F.3d 199, 222 (4th Cir. 2013). In addition
to recognizing the privilege, the Sixth Circuit has held that
“the identity of a patient or the fact and time of his
treatment does not fall within the scope of the
psychotherapist-patient privilege.” In re
Zuniga, 714 F.2d 632, 640 (6th Cir. 1983).
relies heavily on Zuniga and its logic in support of
his objection. Specifically, Paull contends that he did
nothing more than disclose the fact that he was in treatment
and did not disclose the substance of his therapy sessions.
In addition, Paull notes that a district court in the
District of Columbia has previously found no waiver when a
patient “identified her mental health diagnoses and
described to the Court what medications she was taking and
the impact those medications had on her emotional and
cognitive abilities.” United States v.
Babarinde, 126 F.Supp.3d 22, 25 (D.D.C. 2015).
review, this Court finds that Paull has not met his burden to
demonstrate the absence of a waiver. In her affidavit, Dekany
swears that “Paull discussed his mental health and
counseling” with her during their relationship.
Dekany's statement is bolstered by text messages sent to
her by Paull. Within those messages, Dekany asked Paul what
his therapist had told him to do during a prior session.
Paull responded: “Concentrated on my gun and depression
and staying safe this week.” Doc. 36-2 at 3. Paull
continued: “We did talk a lot about things to work on
irritability anger and depression.” Doc. 36-2 at 3.
Paull also texted Dekany: “It was ok … talked
about anger management and control issues she wants me to log
my anger incidents and all kinda  stuff about them for the
week.” Doc. 36-2 at 8. In another text, Paull wrote:
“Can you talk I want to share this paper I wrote for my
counselor.” Doc. 36-2 at 11. While arguing that he had
not disclosed the substance of his sessions, Paull
wholly ignores all of the evidence to the contrary presented
in the above communications. Those messages demonstrate time
and again that Paull openly discussed the specific
communications that occurred during his sessions with a third
party, Alexis Dekany. Accordingly, Paull has fallen well
short of his burden to demonstrate the absence of a waiver of
the privilege. The Report made no error when it found waiver
of the privilege.
however, also contends that the Report should have found that
his mental health records were beyond the scope of discovery.
The Court finds no merit in this contention. It is clear from
the pleadings and the case management conference that
Paull's mental health records could lead to the discovery
of admissible evidence. Those records may ultimately be used
to rebut affirmative defenses and it is conceivable that they
may bolster claims against the other defendants in this
matter. In any event, they are well within the broad scope of
discovery permitted by the civil rules.
Paull contends that the Report erred when it did not place a
temporal limitation in the records at issue. In that respect,
the Court agrees. Paull's waiver is tied to his
communications with Dekany about his counseling at or around
the time of their relationship. Accordingly, only those
records that were created from the inception of their
relationship to the current date are subject to the waiver.
As such, the Report is modified to allow for discovery of all
of Paull's psychological records from August of 2012 to
shall forthwith re-issue her discovery requests with this
limitation in mind. The motion for a protective order is
GRANTED IN PART AND DENIED ...