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FITZGERALD v. CASSIL, No. C-02-3857 EMC, 32 (N.D.Cal. 07/31/2003)
          United States District Court, Northern District of California

July 31, 2003

PATRICK FITZGERALD, ET AL., PLAINTIFFS,
v.
ROBERT CASSIL, ET AL., DEFENDANTS

The opinion of the court was delivered by: Edward Chen, Magistrate Judge

ORDER GRANTING PLAINTIFFS' MOTION TO QUASH SUBPOENAS SEEKING
PLAINTIFFS' MEDICAL AND PSYCHOTHERAPY RECORDS (Docket No. 32)

Plaintiffs Patrick Fitzgerald, Daniel Yu, and their adopted son, Declan
Fitzgerald-Yu (collectively "Plaintiffs") filed suit against Robert
Cassil, Hawthorne/Stone Real Estate Investments, Inc., and Donald
Simmons (collectively "Defendants") for, inter alia, violation of the
Fair Housing Act, 42 U.S.C. § 3604, and various state laws. Plaintiffs
allege that Defendants have discriminated against them on the basis of
familial status. In their complaint, Plaintiffs claim that Mr.
Fitzgerald and Mr. Yu suffered emotional distress and attendant bodily
injury as a result of Defendants' conduct. Defendants subsequently
subpoenaed the medical and psychological records of Mr. Fitzgerald and
Mr. Yu. Plaintiffs now move to quash the subpoenas, issued to Maggie
Hochfelder, M.F.T.; Christa Donaldson, M.F.T.; Thomas Caldarola,
M.F.C.C.; and California Pacific Medical Center.

Having reviewed the briefs, the accompanying submissions, and the record
in this case, and having considered the oral argument of counsel on July
16, 2003, and good cause appearing therefor, the Court hereby GRANTS
Plaintiffs' motion to quash the subpoenas.

I. FACTUAL BACKGROUND

Mr. Fitzgerald and Mr. Yu, along with their adopted son Declan, live at
the Gaiser Court Apartments ("Apartments") in San Francisco, which are
owned and/or managed by Defendants. In their complaint, Plaintiffs
allege the following facts: Mr. Fitzgerald and Mr. Yu informed Mr.
Simmons, the resident manager of the Apartments, that they were going to
adopt a son. Mr. Simmons stated that he did not want children in the
complex. Declan's adoption was finalized in December 2000, at which time
he was approximately five months old. After Declan moved in, Mr. Simmons
made several comments about how Plaintiffs should move out of the
Apartments because of Declan. Mr. Simmons also said that he did not want
Declan to play in the courtyard of the Apartments. In March 2002, there
were three incidents during which Mr. Simmons expressed his hostility
toward Plaintiffs. All three incidents involved Declan's riding,
pushing, or carrying a plastic toy car in the courtyard with Mr.
Fitzgerald and/or Mr. Yu. All three incidents involved Mr. Simmons
yelling at Declan, Mr. Fitzgerald, and/or Mr. Yu. On the third occasion,
Mr. Simmons used profanity in Declan's presence.

In Plaintiffs' complaint, Mr. Fitzgerald and Mr. Yu claimed emotional
distress and attendant bodily injury, including headaches and sleep
loss, as a result of these events. Plaintiffs expanded on the emotional
distress in their initial disclosures, which were incorporated into
their interrogatory responses. See Kreps Decl., Exs. C-D (interrogatory
responses of Mr. Fitzgerald and Mr. Yu, respectively). More
specifically, Plaintiffs stated that the emotional distress damages of
Mr. Fitzgerald were: depression, anger/irritability, discouragement,
nervousness, sleep loss, withdrawal, relived experience, and low
self-esteem. See id., Ex. B (Plaintiffs' initial disclosures).
Plaintiffs stated that the emotional distress damages of Mr. Yu were:
anger/irritability, discouragement, nervousness, sleep loss, relived
experience, and arguing with his partner. See id.

Subsequently, Defendants sought to depose both Mr. Fitzgerald and Mr.
Yu. At the depositions, Mr. Fitzgerald and Mr. Yu testified about the
emotional distress they experienced as a result of the encounters with
Mr. Simmons. See Cristol-Deman Decl., Exs. 1-2 (depositions of Mr.
Fitzgerald and Mr. Yu, respectively). Defendants then served four
subpoenas on the medical providers and psychotherapists identified by
Mr. Fitzgerald and Mr. Yu during the depositions. The subpoenas sought
the following documents:

"Any and all medical records, including prescriptions, diagnosis,
treatment, notes, correspondence, and billing, for any and all
medical and/or mental health services provided, including but not
limited to psychiatric, psychological, counseling, and group
therapy pertaining to the plaintiff [Mr. Fitzgerald and/or Mr. Yu]
from first date to and including the present."
Mot. at 1 (quoting subpoenas).

Plaintiffs now move to quash the subpoenas, asserting that they are not
relevant and that they are privileged.

II. DISCUSSION

Plaintiffs argue that the subpoenas should be quashed because: (1) the
medical and psychological records of Mr. Fitzgerald and Mr. Yu are not
relevant, (2) the records are protected by the psychotherapist-patient
privilege, which has not been waived, (3) the records are protected by
the right to privacy, and (4) the records should be protected as a
matter of policy or else civil rights litigants will be dissuaded from
bringing claims. In response, Defendants contend that: (1) Plaintiffs
waived the psychotherapist-patient privilege by claiming emotional
distress damages and special damages in their complaint, (2) Plaintiffs
have alleged not only a violation of their civil rights but also state
law violations such as negligence for which special damages may be
awarded, and (3) Defendants will be prejudiced without the discovery
because the records may reveal other causes for the emotional distress
and inform the magnitude of the distress, if any, attributable to
Defendants.

A. Relevance

As a preliminary matter, the Court notes that there are two types of
records at issue: medical and psychological. To the extent any medical
records involve mental health (including physical conditions tied to
mental health), they are considered psychological records for purposes
of this motion. All other medical records are "pure" medical records. In
the subpoenas, Defendants sought both psychological and pure medical
records.

Plaintiffs argue that neither the psychological records of Mr.
Fitzgerald and Mr. Yu nor the pure medical records are relevant. The
Court agrees that the pure medical records are not relevant because Mr.
Fitzgerald and Mr. Yu have not made any claim for bodily injury other
than that directly and immediately linked to emotional distress.
Plaintiffs do not claim that Mr. Fitzgerald and Mr. Yu received any
medical treatment for any purely physical injury or disorder. As
Defendants conceded at oral argument, Mr. Fitzgerald and Mr. Yu have not
put their physical conditions (as revealed in the pure medical records)
at issue in this suit.

However, the Court finds that the psychological records are relevant.
Federal Rule of Civil Procedure 26(b)(1) provides a broad definition of
relevance for purposes of discovery: "Parties may obtain discovery
regarding any matter, not privileged that is relevant to the claim or
defense of any party. . . . Relevant information need not be admissible
at trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1); see also
Wright & Miller, Federal Practice & Procedure § 2008 (noting that, even
after 2000 amendment to Rule 26(b)(1), standard "is still a very broad
one"). The psychological records are relevant in determining, among
other things, causation for (i.e., whether there were other unrelated
sources for Mr. Fitzgerald and Mr. Yu's emotional distress) or the
magnitude of the alleged distress.

B. Psychotherapist-Patient Privilege

1. Applicable Law

Because the psychological records are relevant, the question is whether
they are protected by the psychotherapist-patient privilege and thus
exempt from discovery. To answer this question, the Court must first
determine whether the federal law of privilege or the state law of
privilege should apply given that Plaintiffs have alleged both federal
claims and state claims.

"In cases involving both state and federal claims, a literal
reading of [Federal Rule of Evidence] 501 appears to require
application of the federal common law of privileges with respect to
the federal claims and the state law of privileges with respect to
the state claims. However, when the evidence in question is
relevant to both the state and federal claims, the approach has
been rejected on the grounds that it would be meaningless to hold
the same communication privileged for one set of claims but not for
the other.
6-26 Moore's Fed. Practice — Civil § 26.47 (emphasis added).

In such cases, the federal law of privilege applies to both the state
and federal claims. See id.; see also Perrignon v. Bergen Brunswig
Corp., 77 F.R.D. 455, 459 (N.D. Cal. 1978) (concluding that "in federal
question cases where pendent state claims are raised the federal common
law of privileges should govern all claims of privilege raised in the
litigation," at least where information sought goes to both federal and
state claims).

In this case, the evidence in question — i.e., the psychological records
— is relevant to both the state and federal claims. Both are related to
the same nucleus of operative facts. Therefore, the federal law of
privilege should apply.

2. Jaffee v. Redmond

In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court found that,
under Rule 501, there exists a psychotherapist-patient privilege under
the federal common law. See id. at 15. The Court observed that, "ike the
spousal and attorney-client privileges, the psychotherapist-patient
privilege is rooted in the imperative need for confidence and trust."
Id. at 10 (citation omitted). The Court further noted:

"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. The mental
health of our citizenry, no less than its physical health, is a
public good of transcendent importance."
Id. at 11.

"Because the privilege will serve a public good transcending the
normally predominant principle of utilizing all rational means for
ascertaining truth, 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."
Id. at 15 (citation omitted).

The Supreme Court noted that the psychotherapist-patient privilege could
be waived, see id. at 15 n. 14, but did not discuss what exactly would
constitute a waiver. Importantly, however, it rejected the "balancing"
approach taken by some federal and state courts to determine the
applicability of the privilege. It 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. . .
. f the purpose of the privilege is to be served, the participants
in the confidential conversation "must be able to predict with some
degree of certainty whether particular discussions will be
protected. An uncertain privilege, or one which purports to be
certain but results in widely varying applications by the courts,
is little better than no privilege at all."
Id. at 17-18.

The Court concluded that the privilege applied to communications the
defendant had in the course of psychotherapeutic counseling with a
social worker.

3. Broad v. Narrow Approach to Waiver

The parties do not dispute that the psychological records fall under the
psychotherapist-patient privilege set out in Jaffee. What they dispute
is whether Plaintiffs have waived the privilege in bringing this suit
seeking recovery for emotional distress and related physical
manifestations.

The burden of demonstrating that there has been no waiver falls on
Plaintiffs. In Jaffee, the Supreme Court repeatedly analogized the
psychotherapist-patient privilege to the attorney-client privilege.
There is good reason, therefore, to treat the two privileges similarly,
at least for this procedural purpose. In the context of the
attorney-client privilege, nonwaiver must be proved by the party
asserting the privilege. See, e.g., United States v. Martin, 278 F.3d
988, 999-1000 (9th Cir. 2002) (noting that burden is on party asserting
attorney-client privilege to establish all elements of privilege, which
includes no waiver).

Before determining whether Plaintiffs can meet the burden of proving no
waiver, the Court notes that the following stipulations were made by
Plaintiffs at the hearing on the motion to quash: (1) Mr. Fitzgerald and
Mr. Yu will not testify that they sought or obtained psychological
treatment for the emotional distress suffered as a result of Defendants'
conduct and (2) Plaintiffs will not rely on the testimony of a treating
psychotherapist or any other expert to establish the emotional distress
suffered by Mr. Fitzgerald and Mr. Yu. The Court also takes note that in
their motion to quash Plaintiffs stated as follows: (3) "Plaintiffs do
not allege that the discrimination by efendants caused any specific
disabilities or mental or medical abnormalities;" and (4) "Plaintiffs
will not claim that they had any pre-existing conditions that were
exacerbated by efendants' discrimination." Mot. at 5. In light of these
stipulations and statements, the question is whether there has been a
waiver of the psychotherapist-patient privilege simply because
Plaintiffs claimed emotional distress in their complaint and described
what some courts have termed "garden-variety" emotional distress in
their initial disclosures, interrogatory responses, and deposition
testimony.

There is no direct Ninth Circuit authority or prior decisions of this
Court on this issue, and the courts who have addressed the issue have
not come to any consensus. See generally Note, Certainty Thwarted: Broad
Waiver Versus Narrow Waiver of the Psychotherapist-Patient Privilege
After Jaffee v. Redmond, 52 Hastings L.J. 1369 (2001) (discussing
various cases). On the one end of the spectrum there is the broad
approach to waiver. Under the broad approach, courts have held that a
simple allegation of emotional distress in a complaint constitutes
waiver. See Sarko v. Penn-Del Directory Co., 170 F.R.D. 127 (E.D. Penn.
1997); Fritsch v. City of Chula Vista, 196 F.R.D. 562 (S.D. Cal. 1999).
Under the narrow approach, at the other end of the spectrum, courts have
held that there must be an affirmative reliance on the psychotherapist-
patient communications before the privilege will be deemed waived. See
Vanderbilt v. Town of Chilmark, 174 F.R.D. 225 (D. Mass. 1997); Hucko v.
City of Oak Forest, 185 F.R.D. 526 (N.D. Ill. 1999).*fn1

The rationale behind the Sarko line of cases is generally based on
fairness considerations. See, e.g., Fritsch, 197 F.R.D. at 566, 569.
That is, if a plaintiff claims emotional distress, then a defendant
needs to be able to challenge that claim thoroughly; psychological
records can illuminate, for instance, whether there are sources of the
emotional distress other than the defendant's conduct.

The theory behind the Vanderbilt line of cases is generally based upon
the primacy of the privacy interests inherent in the privilege and
Jaffee's rejection of the balancing approach. As explained by the
Vanderbilt court:

"Jaffee's `no balancing' instruction drastically changes the
waiver formula. . . . After Jaffee, a court cannot force
disclosure of [psychotherapist-patient] communications solely
because it may be extremely useful to the finder of fact. Giving
weight to the usefulness of the evidence as a factor in a decision
regarding the scope of the privilege would be a balancing exercise
that was barred by Jaffee.
Vanderbilt, 174 F.R.D. at 229; see also Certainty Thwarted, supra,
at 1386.

The broader measure of fairness underpinning Sarko and the broad waiver
approach would render the psychotherapist-patient privilege pointless:
"he very nature of a privilege is that it prevents disclosure of
information that may be relevant in the case, in order to serve
interests that are of over-arching importance." Hucko, 185 F.R.D. at
530.

In addition, the Vanderbilt line of cases relies upon an analogy to the
attorney-client privilege which is waived when the client affirmatively
relies on attorney-client communications to further her own claim. See
Vanderbilt, 174 F.R.D. at 229. For example, in the patent context, a
defendant who denies willful infringement, and asserts as an affirmative
defense that he acted in good faith, does not automatically waive the
privilege as to any communications he may have had with counsel
regarding the alleged infringement. It is only when the defendant, as
part of the defense, specifically asserts the advice of counsel as a
basis of that good faith defense that the privilege is waived.

Hucko, 185 F.R.D. at 530. Thus, as with the case of waiver of the
attorney-client privilege, there may be a waiver of the
psychotherapist-patient privilege if the communication between the two
is put at issue by the patient, for example, where the cause of action
relies on advice or findings of the psychotherapist. See Vanderbilt, 174
F.R.D. at 229. Under this measure of fairness, waiver prevents the
privilege from being used as both a shield and a sword. See id. at
229-30.

4. Middle Ground Approach to Waiver

There is a middle ground between the Sarko and Vanderbilt lines of
cases. See 3-504 Weinstein's Federal Evidence § 504.07 & n. 22.4
(discussing "limited" broad view of waiver). Under this approach, courts
have generally found a waiver when the plaintiff has done more than
allege "garden-variety" emotional distress. Garden-variety emotional
distress has been described by one court as "ordinary or commonplace
emotional distress," that which is "simple or usual." In contrast,
emotional distress that is not garden variety "may be complex, such as
that resulting in a specific psychiatric disorder." Ruhlmann v. Ulster
County Dep't of Soc. Servs., 194 F.R.D. 445, 449 n. 6 (N.D.N.Y. 2000).
In Ruhlmann, the court concluded that the plaintiff did not waive the
psychotherapist-patient privilege by seeking such garden-variety or
"incidental emotional distress damages." Id. at 450. Similarly, in
Santelli v. Electro-Motive, 188 F.R.D. 306 (N.D. Ill. 1999), the court
held that the plaintiff avoided waiver of the privilege by limiting the
compensation she sought to humiliation, embarrassment, anger, and other
similar emotions. See id. at 309.

In Jackson v. Chubb Corp., 193 F.R.D. 216 (D.N.J. 2000), the court
similarly held that, if a plaintiff merely alleged garden-variety
emotional distress — and not "a separate tort for the distress, any
specific psychiatric injury or disorder, or unusually severe distress" —
she did not waive the psychotherapist-patient privilege. Id. at 226. The
Jackson court arrived at this conclusion by analogizing to case law
applying Federal Rule of Civil Procedure 35(a) which governs court
orders for physical or mental examinations when a party's physical or
mental condition is "in controversy." Fed.R.Civ.P. 35(a). The
court noted that, under the Rule 35(a), a plaintiff's mental condition
was not in controversy simply because she alleged garden-variety
emotional distress. Rather, something more was required. See Jackson,
193 F.R.D. at 226. The courts interpreting Rule 35(a) have required
that:

(1) the plaintiff has pled a cause of action for intentional or
negligent infliction of emotional distress;

(2) the plaintiff has alleged a specific mental or psychiatric
injury;

(3) the plaintiff has pled a claim for unusually severe emotional
distress;

(4) the plaintiff plans to offer expert testimony to support a claim
of emotional distress; and/or

(5) the plaintiff has conceded that his or her mental condition is
`in controversy' for purposes of [Rule] 35(a).
Ford v. Contra Costa County, 179 F.R.D. 579, 579 (N.D. Cal. 1998)
(considering whether examination warranted under Rule 35(a);
relying on Turner v. Imperial Stores, 161 F.R.D. 89, 92-97 (S.D.
Cal. 1995)).*fn2

5. Adopting Narrow Approach to Waiver

Having given due consideration to both the Sarko and Vanderbilt line of
cases, the Court declines to follow the broad approach. It is persuaded
that the Vanderbilt line of cases is more consistent with Jaffee, which
"drastically change the waiver formula" and emphatically rejected a
balancing of the patient's interest in privacy against the need for the
psychotherapist-patient communications by the party seeking discovery.
Vanderbilt, 174 F.R.D. at 229 ("Giving weight to the usefulness of the
evidence as a factor in a decision regarding the scope of the privilege
would be a balancing exercise that was barred by Jaffee."). Moreover,
the potential for abuse under the broad waiver approach is substantial.
Cf. Burrell v. Crown Cent. Petroleum, 177 F.R.D. 376, 383 (E.D. Tex.
1997) (taking note in context of Rule 26 of "tremendous potential for
abuse that exists when a defendant has unfettered access to a
plaintiff's medical records"); Smith v. J.I. Case Corp., 163 F.R.D. 229,
232 (E.D. Penn. 1995) (taking note of same in context of Rule 35).

The Court notes that broad approach to waiver in Sarko is not necessary
to achieve basic fairness to the defendant. While the privilege may bar
access to medical records, the defendant may cross-examine the
plaintiff, as was done in the instant case, about other stressors or
contributing factors that may explain or have contributed to the alleged
emotional distress. The occurrence and dates of any psychotherapy
including that which occurred before the incident is not privileged and
subject to discovery. See Vanderbilt, 174 F.R.D. at 230. The defendant
can examine percipient witnesses or find other evidence to show, for
example, that plaintiff's description of his or her distress is
exaggerated. It may elicit from the plaintiff the fact that the
plaintiff did not seek and obtain treatment or therapy for the alleged
distress. These examples illustrate that the defendant has numerous
avenues through which it can make its case without delving into the
plaintiff's confidential communication with his or her therapist. Cf.
Doubleday v. Ruh, 149 F.R.D. 601, 607 (E.D. Cal. 1993) (noting that, to
overcome qualified work product privilege, party must demonstrate "a
`substantial need' for the qualified work product, as well as an
inability to obtain the information from other sources without undue
hardship"); Fed.R.Civ.P. 26(b)(3) (providing for qualified work product
privilege). Finally, the defendant benefits by the guarantee that the
plaintiff will not present expert evidence at trial.

The Court also rejects the middle ground approach that employs the
garden-variety test imported from Rule 35. The middle ground approach is
not sufficiently protective of the psychotherapist-patient privilege
established in Jaffee. While a Rule 35(a) examination may compromise a
litigant's privacy, waiver of the psychotherapist-patient privilege
entails more than an invasion of privacy; it threatens access to
treatment by breaking the "imperative need for confidence and trust"
upon which psychotherapy is rooted. Jaffee, 518 U.S. at 10.

Furthermore, the use of a test for waiver that hinges on an after-the-
fact judicial assessment of numerous qualitative factors introduces a
risk of uncertainty that the Supreme Court in Jaffee sought to avoid. In
McKenna v. Cruz, No. 98 Civ. 1853 (HB) (HBP), 1998 U.S. Dist. LEXIS
18293, the court criticized the middle ground approach precisely because
"ndorsement of a rule under which the validity of an assertion of
privilege would turn on the basis of an undefined term [i.e., garden
variety] would reintroduce the very uncertainty the Supreme Court
eliminated when it endorsed the psychotherapist-patient privilege as an
unconditional privilege." Id. at 6*; see also Vanderbilt, 174 F.R.D. at
229 (noting that "mental-state-at-issue" test, under which courts have
differed as to when and under what circumstances a patient places her
mental state at issue, would introduce uncertainty and eviscerate the
effectiveness of the privilege).

Furthermore, the Court agrees with Plaintiffs that, for policy reasons,
a waiver of the psychotherapist-patient privilege should not be narrowly
construed, particularly in civil rights cases where Congress has placed
much importance on litigants' access to the courts and the remedial
nature of such suits. See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 388
(2d Cir. 1994) (noting that provisions of Fair Housing Act "`are to be
given broad and liberal construction'" to keep with Congress's intent of
"`replacing racially segregated housing with `truly integrated and
balanced living patterns'"). Congress provided for recovery of
attorney's fees in cases such as this were the plaintiff to prevail. See
42 U.S.C. § 3613(c))(2) (noting that a "court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable
attorney's fee and costs" for violation of Fair Housing Act). The
purpose of fee-shifting provision in civil rights legislation is "to
ensure `effective access to the judicial process.'" Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983) (citation omitted). That purpose
would be defeated were the broad or uncertain test of waiver applied and
suits vindicating civil rights and seeking recovery for general damages
thereby deterred.

6. No Waiver by Plaintiffs

The Court concludes that, under the narrow approach to waiver applicable
here, Plaintiffs have not waived the psychotherapist-patient privilege.
Plaintiffs have stipulated that they will not affirmatively rely on any
treating psychotherapist or other expert to prove the emotional distress
damages suffered by Mr. Fitzgerald and Mr. Yu.*fn3 The Court notes that,
even if the middle ground approach to waiver (i.e., "garden-variety"
emotional distress) were applied, no waiver would be found in the
instant case. Plaintiffs [ Page 12]

have not pled a cause of action for intentional or negligent infliction
of emotional distress*fn4 and have not alleged a specific psychiatric
injury or disorder or unusually severe emotional distress extraordinary
in light of the allegations.*fn5 Nor have they conceded their mental
condition as revealed in the records sought is "in controversy." [ Page
13]

IV. CONCLUSION

Because the psychotherapist-patient privilege has not been waived based
on the Plaintiffs' stipulations and statements as to the scope of the
testimonies and evidence to be presented at trial, the Court GRANTS
Plaintiffs' motion to quash the subpoenas issued to Maggie Hochfelder,
M.F.T.; Christa Donaldson, M.F.T.; Thomas Caldarola, M.F.C.C.; and
California Pacific Medical Center.

IT IS SO ORDERED.

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Opinion Footnotes

*fn1 For a discussion of the broad and the narrow approaches to waiver,
see Certainty Thwarted, supra at 1375-76.

*fn2 There is reason for analogizing the waiver analysis of the
psychotherapist-patient privilege to Rule 35(a) examinations — both
involve invasion into sensitive privacy interest — and it cannot be said
a priori that turning over one's psychological records is more or less
invasive than requiring one to submit to a Rule 35 examination.
Arguably, Rule 35(a) is more invasive because it requires a party to
submit involuntarily to a potentially open-ended examination by a
medical expert designated by the opposing party. However, one judge has
rejected this view, holding that it was more invasive for there to be a
waiver as opposed to an involuntary examination: "Many, if not most,
people would undoubtedly prefer to submit to a mental examination, in
which they have a degree of control over what information is revealed,
than to have the records of their past psychotherapy sessions disclosed
to their adversaries in litigation." Fritsch v. City of Chula Vista, 187
F.R.D. 614, 632 (S.D. Cal.) (concluding that, "in establishing an
evidentiary privilege for psychotherapist-patient records, the Jaffee
court set a higher standard than Rule 35(a)'s `in controversy'
requirement") (emphasis in original), overruled, 196 F.R.D. 562 (S.D.
Cal. 1999) (holding broad waiver rule applies).

*fn3 As noted at the hearing, if Plaintiffs' friends who are
psychotherapists testify as to the emotional distress they observed as
to Mr. Fitzgerald or Mr. Yu, the privilege might be waived should the
Court conclude that the testimony amounts to expert testimony.

*fn4 That Plaintiffs have alleged negligence based on the same facts
which underlie their federal civil rights claim does not change the
outcome. The basic theory of liability and the damages alleged are the
same. Moreover, under Rule 35, mere allegations of negligence alone do
not expose a litigant to a medical examination.

*fn5 In deposition, Mr. Fitzgerald and Mr. Yu described with
particularity the distress they experienced which was tied directly to
Defendants' alleged conduct. For example, Mr. Fitzgerald testified that:
"I'm constantly checking to see if Don's [i.e., Mr. Simmons] up at his
window, if Don's home, when I pass by there I find myself at times, if
inappropriately, I think limiting Declan from being able to just be a
kid because I'm afraid that Don will kind of have some reaction and that
Declan and I will be face the one again with Don yelling at us or
swearing at us or something." Cristol-Deman Decl., Ex. 1 (Fitzgerald
Depo. 210:6-13).

Similarly, Mr. Yu testified that: "[I have a] light increase in heart
rate before I leave the house, feeling hypervigilant when I walk past
Don's window, feeling my body tense up and feeling myself feel more
restricted internally when I'm bringing Declan home from school or
taking him out, concerned that he'll start to fuss and draw attention to
us. Feeling anxious, agitated, on edge, after we've been yelled at,
after I was yelled at on the third, when he was in the apartment, and
you know, on his business, I mean working, and you know, in this very
flat as a matter of fact way saying, `You are not planning on staying
here,' you know, made my heart rate increase, and my — I felt nervous in
a sense of not knowing how to respond. . . . eeling nervous when Patrick
has said, `I am going to take Declan out to play,' taking him out with
his car, I feel nervous about that, and it manifested in how do I say
it, in terms of letting Patrick be his own person, and if that's what he
wants to do, I might not do that, so basically trying not to control
him, and say don't do that, I don't want to get into another thing with
Don." Id., Ex. 2 (Yu Depo. 54:10-55:8).