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Auer v. City of Minot

United States District Court, D. North Dakota

April 11, 2016

Collen M. Auer, Plaintiff,
City of Minot, a North Dakota Municipal Corporation, Defendant,


Charles S. Miller, Jr., Magistrate Judge

Plaintiff is suing defendant over her termination from employment as Minot City Attorney. According to the First Amended Complaint, plaintiff began her employment as City Attorney on March 31, 2014, and was terminated on May 2, 2014.

Before the court now is defendant’s First Motion to Compel Discovery. The motion contains two requests for relief. The first is that plaintiff be required to execute authorizations that would allow defendant to obtain plaintiff’s medical records, both mental and general, from her health care providers subject to some limitations The second is that plaintiff be compelled to supplement her Rule 26(a)(1) disclosures as to documents in her possession. (Doc. No. 33).


A. The discovery requests at issue

Defendant submitted to plaintiff the following request for production of documents:

REQUEST NO. 1: Please sign and return the attached Authorization for Release of Information to obtain you mental health records as referred to in your answers to the preceding interrogatories.

(Doc. No. 35-2, p. 8) (italics in original). This, in turn, brings into play the following interrogatory:

INTERROGATORY NO. 10: List the name and address of each counselor, psychologist, psychiatrist, therapist, and/or other mental health professional seen and/or visited by you at any time for any reason during twenty (20) years prior to your employment with the City and for all time periods after your employment with the City terminated.

(Doc. No. 35-2, p. 7) (emphasis in original). Although Request No. 1 and Interrogatory No. 10 reference only plaintiff’s mental health records, the form authorization that defendant demanded plaintiff execute was not so limited in that it authorized the release of all of plaintiff’s medical records, including radiological and imaging films and reports, lab reports, pharmacy records, and any other records showing medical treatment or information. Further, the authorization stated that it is for records for medical care provided “at any time” and “without limitation as to type.” (Id., p. 12).

Plaintiff objected to these discovery requests on several grounds. She contended that her mental health records are subject to the psychotherapy-patient privilege and that she has not waived the privilege by seeking damages for emotional loss because she has limited her claims to “garden variety” emotional distress that most persons would experience as a result of being terminated from employment under similar circumstances. She also objected to the overbreadth of the release she was expected to execute. Finally, she objected to Interrogatory No. 10 on the grounds that, by the time you count all of the subparts of her prior interrogatory answers, the limit of 25 interrogatories per side had been exceeded.

Following the undersigned’s informal telephone conference with the parties, defendant has both narrowed and expanded upon what it wants in the present motion. Defendant now limits its demand for mental health records to those going back to January 1, 2005, which is just over nine years prior to plaintiff commencing work with defendant. In addition, however, defendant wants plaintiff’s other medical records beginning on January 1, 2013, even though Document Request No.1 and Interrogatory No. 10 initially referenced only mental health records, save, perhaps, for the accompanying authorization that would have allowed defendant to collect anything. Defendant’s argument for why it now needs plaintiff’s general medical records beginning on January 1, 2013, is that they might contain information relevant to whether plaintiff will still be with us and fully capable of working during the several years going forward for which she is claiming front pay. Also, there has been the suggestion that her general records might reference treatment for mental distress such as by her primary-care physician, for example.

More specifically, defendant now requests that plaintiff be required to execute two authorizations for health records. The first is for records relating to the “diagnoses or treatment for any mental, emotional, and psychological issue and any physical manifestations thereof” from January 1, 2005 to the present, including chemical dependency records. The second is an authorization for all of plaintiff’s medical records, both general and mental health, including chemical dependency records, from January 1, 2013, to the present.

B. The Supreme Court’s decision in Jaffe

While there is no recognized physician-patient privilege under federal law, [1] the United States Supreme Court did adopt a psychotherapist-patient privilege for confidential communications made to licensed psychiatrists, psychologists, and social workers in Jaffee v. Redmond, 518 U.S. 1 (1996). In Jaffee, the administrator of an estate of an individual shot and killed by a police officer sued the officer for the use of excessive force pursuant to 42 U.S.C. § 1983. At issue in Jaffe was whether the officer was required to disclose confidential statements he may have made about the shooting to a licensed clinical social worker during the course of grief counseling following the shooting.

In addressing that question, the Court in Jaffee discussed the importance of the promise of confidentiality for effective psychotherapy, stating:

Effective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.

Id. at 10. The Court then discussed the importance of mental health to society, the need for effective mental health treatment, and the recognized importance of psychotherapy as a form of treatment and concluded that:

[I]f the privilege were rejected, confidential conversations between psychotherapists and their patients would surely be chilled, particularly when it is obvious that the circumstances that give rise to the need for treatment will probably result in litigation.

Id. at 11-12.

Also, for many of the same reasons, the Court rejected the conclusion of the court of appeals below that the privilege should be subject to a balancing of the interests of the person seeking mental health treatment against the need for the information by a litigant in a particular case. The Court stated:

Making the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.

Id. at 17. Finally, while the Court concluded that the privilege should be absolute and not subject to balancing, it did state in a footnote that, like other testimonial privileges, the psychotherapist-patient privilege could be waived. Id. at 15 n.4.

C. The three main approaches to the discovery of mental health records in federal civil rights cases where a claim of mental and ...

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