DocketNumber: No. 11 C 6142
Citation Numbers: 287 F.R.D. 409
Judges: Kendall
Filed Date: 10/29/2012
Status: Precedential
Modified Date: 11/26/2022
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff Elizabeth Await brought this suit against certain personnel who worked at or supervised the Grundy County Jail (collectively “the Grundy County Defendants”), as well as certain medical care providers who serviced the Jail (collectively “the Medical Care Defendants”) after her husband died at the Jail as a result of the Defendants’ alleged violations of his constitutional rights or their alleged murder of him. (Doc. 28; First Amended Complaint).
The Grundy County Defendants now move to compel discovery against Mrs. Await (Doc. 72), and she asserts the psychotherapist-patient privilege in response.
The manner in which Mr. Await died is of critical importance to Mrs. Awalt’s theories of liability in this case. The Grundy County Coroner determined that Mr. Awalt’s death was caused by suffocation from the presence of a sock in his mouth, presumably in anticipation of a seizure. Mrs. Await has alleged two alternative theories of death in this case. First, she alleges that Mr. Awalt’s seizure was caused by the Defendants’ failure to provide him with adequate medical care in violation of his constitutional rights secured by the Eighth and Fourteenth Amendments to the Constitution. Alternatively, she alleges that the Grundy County Defendants murdered Mr. Await by asphyxiating him when they allegedly stuffed a sock down his throat. Defendants argue that Mrs. Awalt’s first theory is contrary to the evidence, which they allege proves that anti-seizure medication was administered to Mr. Await and was in his system at the time of his death. Defendants also contend that the murder theory is refuted by evidence that Mr. Await allegedly committed suicide. The Defendants argue
The Defendants argue that Mrs. Awalt’s continuing denial of Mr. Awalt’s history of mental health conditions, coupled with her disclosure of documents evidencing potentially long-standing and sporadically medicated mental health conditions, leave them with no choice but to subpoena Mr. Awalt’s mental health records to investigate the possibility that Mr. Awalt’s death was indeed caused by suicide. In her Amended Complaint, Mrs. Await alleges as one of her theories pertaining to the cause of Mr. Awalt’s death that one or more of the Grundy County Defendants intentionally put a sock in Mr. Awalt’s throat causing him to asphyxiate. The Defendants argue that they must be permitted to investigate every possible cause of death to refute this claim, including the possibility that Mr. Await took his own life. They argue that this includes discovery of Mr. Awalt’s mental health records kept by the Illinois Department of Corrections, the Social Security Administration, and Provena St. Joseph’s Hospital Mental Facilities and Fort Logan Mental Hospital. The Defendants assert that in light of the evidence disclosed so far and Mrs. Awalt’s alternative theory of liability concerning the cause of her husband’s death they must be permitted to examine Mr. Awalt’s psychological records to discover the nature and extent of any mental illnesses he may have had in the period before his death to present the defense that suicide was the actual cause of his death.
In addition, the Defendants seek records pertaining to Mrs. Awalt’s alleged treatment for domestic abuse by Mr. Await so that they can paint a picture of the Awalt’s relationship that undermines Mrs. Awalt’s claim of damages for loss of consortium and severe emotional distress. To these ends the Defendants seek records from Guardian Angel Community Services, a counseling center, as well as medical records from treaters who may have treated Mrs. Await for domestic abuse by Mr. Await. For the reasons stated herein, the Defendants’ Motion to Compel all of Mr. Awalt’s psychological records as well as Mrs. Awalt’s Guardian Angel records is denied because these documents that they seek discovery of from Mrs. Await are protected from compelled disclosure by the federal common law psychotherapist-patient privilege. The Defendants’ Motion is granted with respect to medical records pertaining to Mrs. Awalt’s treatment for domestic abuse, and Mrs. Await is hereby ordered to sign a waiver permitting the Defendants to subpoena records from treaters relating to her treatment for domestic abuse by Mr. Await.
II. Discussion
Mrs. Await argues that the requested discovery materials are covered by the federal common law psychotherapist-patient privilege recognized by the Supreme Court in Jajfee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), and thus are protected from compelled disclosure by the Defendants. The Defendants argue that Mrs. Awalt’s assertion of privilege is over-broad and that such a blanket assertion of the psychotherapist-patient privilege is improper. Further, they argue that Mrs. Await has waived the protections of the psychotherapist-patient privilege in this case by, among other things, putting her emotional state at issue in the litigation by claiming damages for loss of consortium and sever emotional distress. They contend that Mr. and Mrs. Awalt’s history of mental health issues, including records pertaining to Mrs. Awalt’s counseling and treatment for domestic abuse, go to the heart of Mrs. Awalt’s theory of liability in this case, as well as to the issue of damages to which she may be entitled. For these reasons, the Defendants ask this Court to compel disclosure of the requested documents as relevant and not protected by the psychotherapist-patient privilege.
i. Mr. Awalt’s Illinois Department of Corrections Mental Health Records
The Defendants seek twenty-three pages of documents obtained by Mrs. Await from the Illinois Department of Corrections (“IDOC”), which she has withheld on the basis of the psychotherapist-patient privilege. In her initial Rule 26 disclosures Mrs. Await disclosed Mr. Awalt’s medical records from the night of his death. Included in these records were notations by the hospital staff that Mrs. Await informed them that Mr. Await suffered from bi-polar disorder and manic depression. The discharge diagnosis in the hospital records was a possible suicide attempt. In response to the Defendants’ discovery requests regarding these statements, Mrs. Await asserted that she was unaware that Mr. Await suffered from manic depression, bi-polar disorder, suicidal ideation or attempts, or other mental or psychological conditions prior to his death. Notwithstanding Mrs. Awalt’s assertions that she was unaware that Mr. Await may have suffered from any mental health conditions, she disclosed records to the Defendants which indicate that the opposite is true.
Mrs. Await is aware that Mr. Await was evaluated by a psychologist or psychiatrist when he was incarcerated at the IDOC on an unknown date. She is also aware of the treatment because she has certain IDOC records in her possession which she has refused to produce, instead identifying them in her privilege log. The Defendants requested that Mrs. Await execute a waiver so they could obtain the records directly from the IDOC, which she has refused to do on the basis of the psychotherapist-patient privilege. Mrs. Await subpoenaed a copy of Mr. Awalt’s IDOC file herself, including his medical and mental health records. She disclosed the documents received in response to the subpoena but withheld eight additional pages of documents, which are also identified in her privilege log. The Defendants assert that Mrs. Await should be compelled to disclose the documents she originally had in her possession from the IDOC as well as the doeu-
Mrs. Await has provided this Court with the documents over which she asserts privilege for an ex parte in camera review. The records that the Defendants seek from the IDOC confirm that Mr. Await had no suicidal tendencies. In 2004 and 2006, Mr. Await reported during IDOC mental health evaluations that he had never received treatment or used medication for mental or emotional issues, and he was found by IDOC personnel to present no risk of suicide. In 2007, Mr. Await discussed depression with psychologists at the IDOC but denied any thoughts of suicide. One of the most common features of the IDOC records is Mr. Awalt’s denial of any suicidal ideation and there is no document anywhere in the IDOC records of any suicide attempt by Mr. Await. The IDOC psychologists diagnosed Mr. Await with major depressive disorder in full remission, substance dependence, and adjustment disorder.
Mrs. Await asserts that the psychotherapist-patient privilege applies to protect from disclosure the IDOC documents relating to Mr. Awalt’s mental health. In resolving a split among the Circuits, the Supreme Court in Jaffee, 518 U.S. at 15, 116 S.Ct. 1923, affirmatively recognized the existence of a psychotherapist-patient privilege as a matter of federal common law under Federal Rule of Evidence 501.
A threshold issue of whether Mrs. Await can assert the psychotherapist-patient privilege on behalf of her deceased husband arises. Whether the psychotherapist-patient privilege survives the death of the patient, or is otherwise affected by the patient’s death, is a matter that has not been conclusively decided. There is a paucity of decisions on the issue of whether the federal common law psychotherapist-patient privilege (as opposed to parallel state-law psychotherapist-patient privileges) survives the death of the patient. The only two courts to have addressed the issue since Jaffee that this Court is aware of both held that the privilege can be asserted
Although the federal common law of privileges is supreme, state privilege law may be considered by a court as instructive authority in determining the proper scope of the privilege. See, e.g., Clemmer v. Office of Chief Judge, 544 F.Supp.2d 722, 725 (N.D.Ill.2008) (“Although the federal common law is supreme with respect to privileged information, state law may be considered ‘as one of the factors in making the fact intensive determination of whether or not the asserted privilege applies.’”) (quoting United States v. State of Ill., 148 F.R.D. 587, 590 (N.D.Ill. 1993)). Thus, although the issue of privilege in this federal question suit is governed by the federal common law of privileges, a “strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy.” Memorial Hospital For McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir.1981); see also Jaffee, 518 U.S. at 12-13, 116 S.Ct. 1923 (“the policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one.”). Under the Illinois psychotherapist-patient privilege, which is codified in the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq., the privilege survives the death of the patient subject to two narrow exceptions. One of these exceptions holds that a decedent’s privilege over their psychological records is waived in civil proceedings where the mental or physical conditions of the patient is introduced as an element of the plaintiffs claim. See 740 ILCS 110/10(a)(2). The Illinois courts have construed this exception very narrowly, and have confined it to cases in which the plaintiffs damages include an affirmative claim for mental loss. See Thiele v. Ortiz, 165 Ill.App.3d 983, 117 Ill. Dec. 530, 520 N.E.2d 881, 887-888 (1988) (citing Webb v. Quincy City Lines, Inc., 73 Ill.App.2d 405, 219 N.E.2d 165 (1966)). Under Illinois law, a claim for loss of society under the Illinois Wrongful Death Act does not place the decedent’s mental condition at issue to fall within the exception to the protections provided by the Mental Health and Developmental Disability Confidentiality Act. See Thiele, 117 Ill.Dec. 530, 520 N.E.2d at 888. Thus, the policy of Illinois with respect to the psychotherapist-patient privilege is that the privilege survives the death of the
In Jaffee the Supreme Court closely analogized the psychotherapist-patient privilege to the attorney-client privilege, and observed that both are “rooted in the imperative need for confidence and trust.” See Jaffee, 518 U.S. at 10, 116 S.Ct. 1928 (quoting Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)). The Jaffee Court, throughout much of its decision, analyzed the confidential communications protected by the psychotherapist-patient privilege in accordance with the protections created by the attorney-client privilege. The Court essentially held that the psychotherapist-patient privilege is identical in all material respects to the attorney-client privilege. See Koch, 489 F.3d at 390 (recognizing that the Jaffee Court closely analogized the attorney-client privilege to the psychotherapist-patient privilege and held them to be substantially similar); In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 76 (1st Cir.1999) (“The Jaffee Court justified the psychotherapist-patient privilege in terms parallel to those used for the attorney-client privilege.”); see, e.g., Fitzgerald v. Cassil, 216 F.R.D. 632, 636 (N.D.Cal.2003) (“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”); Santelli v. ElectroMotive, 188 F.R.D. 306, 309 (N.D.Ill.1999) (citing Jaffee, 518 U.S. at 10, 116 S.Ct. 1923) (noting that the Supreme Court in Jaffee found the attorney-client privilege “to be analogous to the psychotherapist-patient privilege”); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229 (D.Mass. 1997) (recognizing the close analogy the Jaffee Court made between the attorney-client privilege and the psychotherapist-patient privilege). Only two years after its decision in Jaffee, the Supreme Court held in Swidler & Berlin v. United States, 524 U.S. 399, 410-411, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998), that the attorney-client privilege survives the death of the party who holds the privilege. In light of the close connection made by the Jaffee Court between the psychotherapist-patient privilege and the attorney-client privilege, it is reasonable to conclude that Swidler, which holds that the attorney-client privilege survives the death of the party who holds the privilege, likewise applies to the psychotherapist-patient privilege.
Given the federal caselaw holding that the privilege may be asserted on behalf of the patient and that it survives the death of the privilege holder; the nature of Illinois’s psychotherapist-patient privilege, which is instructive authority in this nondiversity case given the strong policy in favor of state and federal comity with respect to testimonial privileges; in addition to the Supreme Court’s treatment in Jaffee of the psychotherapist-patient privilege as materially similar to the attorney-client privilege (as well as subsequent lower courts’ similar treatment of the psychotherapist-patient privilege as essentially identical in procedural nature to the attorney-client privilege), which the Supreme Court held survives the death of the privilege holder, this Court concludes that the psychotherapist-patient privilege survives the death of the patient and may be asserted on their behalf by a plaintiff with proper standing to assert the privilege. Accordingly Mrs. Await may assert the psychotherapist-patient privilege on behalf of her deceased husband to prevent from compelled disclosure his psychological records that are properly protected by the privilege. The question then becomes whether the privilege has been waived in this case.
The Jaffee Court explicitly held that the psychotherapist-patient privilege, like all other testimonial privileges, can be waived. See Jaffee, 518 U.S. at 15 n. 14, 116 S.Ct. 1923. The Supreme Court, however, declined to explicitly set forth the manner in which the privilege would be waived, instead leaving it to the lower courts to fashion a doctrine of waiver to be applied to the psychotherapist-patient privilege. The Court did reject the notion that the privilege was subject to a balancing test, an approach that
The issue of waiver of the psychotherapist-patient privilege arises frequently in civil litigation when the plaintiff claims damages for emotion distress. Federal courts faced with this issue have developed divergent approaches for ascertaining whether the privilege has been waived. The so-called “narrow” approach holds that a patient only waives the privilege by putting the substance of the advice or communication with their psychotherapist directly at issue in the suit. See Koch, 489 F.3d at 390. Courts employing the “narrow” approach will only find a waiver of the privilege where the emotional distress claims are “severe,” where the plaintiff relies on communications with a therapist as part of their case, or where the plaintiff intends to offer expert testimony on the claim of emotional distress. See Id.; see, e.g., John v. Napolitano, 274 F.R.D. 12, 17-19 (D.D.C.2011); Walton v. North Carolina Dept, of Agriculture and Consumer Services, No. 09 C 302, 2011 WL 883579, *3 (E.D.N.C. March 11, 2011); Ortiz v. Potter, No. 08 C 1326, 2010 WL 796960, *6 (E.D.Cal. March 5, 2010); Valentine v. First Advantage Saferent Inc., No. 08 C 142, 2009 WL 3841967, *1 (C.D.Cal. Sept. 18, 2009); Doe v. City of Chula Vista, 196 F.R.D. 562, 568-69 (C.D.Cal.1999). On the other side of the spectrum, under the so-called “broad” approach, courts have held that a plaintiff places their mental condition at issue and waives the privilege simply by making a claim for emotional distress damages. See Koch, 489 F.3d at 390. Courts employing the “broad” approach will find a waiver of the privilege merely from the plaintiff putting their emotional state as issue in the litigation. See Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir.2000); see, e.g., Jackson v. Chubb Corp., 193 F.R.D. 216, 225 (D.N.J. 2000); Fox v. Gates Corp., 179 F.R.D. 303, 306 (D.Colo.1998); Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D.Pa.1997); Vann v. Lone Star Steakhouse & Saloon, Inc., 967 F.Supp. 346, 349-50 (C.D.Ill.1997); EEOC v. Danka Indus., Inc., 990 F.Supp. 1138, 1142 (E.D.Mo.1997). There is a final approach, the so-called “middle ground” approach — which has become the majority view — which holds that “[w]here a plaintiff merely alleges ‘garden variety1 emotional distress and neither alleges a separate tort for the distress, any specific psychiatric injury or disorder, or unusually severe distress, that plaintiff has not placed his/her mental condition at issue to justify a waiver of the psychotherapist-patient privilege.” See Koch, 489 F.3d at 390.
The majority view — or the “middle ground” approach — to waiver of the psycho
Courts in this District, as well as others throughout the Country which apply the “middle ground” approach, have held that where the plaintiff seeks ‘garden variety’ emotional damages — which is to say, damages limited to the typical negative emotional impact on the plaintiff that obviously flow from the defendant’s alleged misconduct— the privilege remains intact and is not waived. See, e.g., Flowers, 274 F.R.D. at 225 (“Since Jajfee, most courts have held that claims of ‘garden variety’ emotional damage do not result in a waiver of the psychotherapist/patient privilege.”); E.E.O.C. v. Area Erectors, Inc., 247 F.R.D. 549, 552 (N.D.Ill. 2007); Taylor v. ABT Electronics, Inc., No. 05 C 576, 2007 WL 1455842, *2 (N.D.Ill. May 14, 2007); Santelli, 188 F.R.D. at 309; see also In re Sims, 534 F.3d at 129; Koch, 489 F.3d at 390; Diehl v. Bank of America Corp., No. 09 C 1220, 2010 WL 4829970, *1-2 (M.D.Fla. Nov. 19, 2010); Kunstler v. City of New York, No. 04 C 1145, 2006 WL 2516625, *9 (S.D.N.Y. Aug. 29, 2006); Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 657, 660 (D.Kan.2004); Vanderbilt, 174 F.R.D. at 228; Sabree v. United Brotherhood of Carpenters & Joiners of America, Local No. 33, 126 F.R.D. 422, 426 (D.Mass.1989). Under this “middle ground” approach when a plaintiff seeks damages for emotional distress for which they later sought psychotherapeutic treatment or otherwise affirmatively puts the privileged communication directly at issue in the lawsuit, the privilege is waived and the defendant is entitled to discover otherwise privileged information concerning the plaintiffs mental health. See, e.g., Santelli, 188 F.R.D. at 308-309; Wynne v. Loyola Univ. of Chicago, No. 97 C 6417, 1999 WL 759401, *1 (N.D.Ill. Sept. 3, 1999); see also Schoffstall, 223 F.3d at 823; E.E.O.C. v. California Psychiatric Transitions, 258 F.R.D. 391, 399-400 (E.D.Cal.2009); Fritsch v. City of Chula Vista, 187 F.R.D. 614, 629 (S.D.Cal. 1999); Vanderbilt, 174 F.R.D. at 229. However, where the plaintiffs claim for emotional distress damages are limited to those that naturally flow from the defendants’ alleged misconduct the privilege remains intact and can be asserted by the plaintiff to prevent mental health records from compelled disclosure — that is, claims for ‘garden variety’ emotional distress damages do not waive the privilege.
The rule distinguishing between ‘garden variety’ claims for emotional damages and claims in which the plaintiff puts their psy-
ii. Mr. Awalt’s Social Security Administration Records
The Defendants also seek disclosure of psychological evaluations of Mr. Await conducted by the Social Security Administration (“SSA”) in connection with his application for Social Security benefits. Mrs. Await has disclosed documents that demonstrate that Mr. Await applied for disability benefits in 2008, 2009, and 2010 on the basis of a seizure condition, bi-polar disorder, and manic depression. Mrs. Await has obtained Mr. Awalt’s SSA records and submitted a privilege log stating that she has withheld four records on the grounds that they are protected by the psychotherapist-patient privilege under federal common law. The Defendants contend that the SSA documents appear to represent three psychiatric examination by three physicians within approximately one year of Mr. Awalt’s death. They contend that because these documents may contain information related to Mr. Awalt’s mental state, the degree of his alleged psychological disorders, possible past suicide attempts, and potential suicidal ideation, the records are directly relevant to their defense of death by suicide. Defendants requested a waiver from Mrs. Await to procure Mr. Awalt’s SSA records. She refused to sign the waiver, insisting on procuring the documents herself. The Defendants Motion to Compel asserts what they view as their right to discover the records without having to filter them through Mrs. Awalt’s counsel. Since this Motion to Compel has been pending, Mrs. Await undertook to obtain all of the records that the Defendants have requested from the SSA. The parties agreed that the Defendants would not persist to compel a signed waiver if Mrs. Await could demonstrate that she produced all documents provided to her by the SSA in response to her subpoena, such as by providing a statement of the number of pages disclosed or a billing record showing Mrs. Awalt’s payment for copies. Mrs. Await provided a privilege log for documents retained, but did not provide documentation from the SSA indicating how many pages she received in response to her subpoena. Consequently, the Defendants further request that Mrs. Await be compelled not only to disclose the SSA records but also to sign a release for Mr. Awalt’s SSA medical records and medical providers identified therein so that they can pursue avenues of follow-up from the records and verify that Mrs. Awalt’s disclosure is complete.
Again, Mrs. Await has provided the Court with the relevant documents for an ex parte in camera review. Psychological records created in March 2010 reflect that Mr. Await was not suicidal and that he had never been formally treated for bipolar disorder. Records from August 2009 reflect Mr. Awalt’s history of seizures, substance abuse, and af
Mrs. Await argues that one mention of an alleged suicide attempt that purportedly took place fifteen years before Mr. Await was found dead in his cell at the Grundy County Jail is of little or no probative value in this case. This is especially true in light of the fact that the record assembled so far as well as the privileged documents are lacking in any evidence of suicidal ideation on Mr. Awalt’s part since at least 1995. The fact that Mr. Await may have been living with mental disorders for a long period of time without any issues is far less relevant to the instant case than if he had attempted suicide a month or two before his death — something that the record and the evidence does not reflect he did.
Aside from the limited probative value of this information, Mrs. Await contends that the SSA files are protected by the psychotherapist-patient privilege, and that the privilege has not been waived. For the same reasons discussed above, neither Mrs. Awalt’s claim of damages nor Mr. Awalt’s untimely death waive the privilege. Mrs. Await is merely seeking ‘garden variety’ damages in connection with the death of her husband, and she has not put his or her specific mental state at issue in the case with respect to the SSA documents, nor does she intend to use those documents to prove her damages. See, e.g., Flowers, 274 F.R.D. at 225; Santelli, 188 F.R.D. at 309; Noe, 2011 WL 1376968 at *1. The Defendants advance another waiver argument with respect to the SSA files by claiming that Mr. Await waived the psychotherapist-patient privilege by applying to the SSA for Social Security benefits in the first place.
A person who discloses privileged information to a third-party waives the privilege in the absence of an agreement to keep the information confidential. See Dellwood Farms, Inc. v. Cargill, 128 F.3d 1122, 1127 (7th Cir.1997). “In the case of selective disclosure, the courts feel, reasonably enough, that the possessor of the privileged information should have been more careful, as by obtaining an agreement by the person to whom they made the disclosure not to spread it further.” Id. Applying this rule, the court in Lawrence E. Jaffe Pension Plan v. Household, Intern., Inc., 244 F.R.D. 412 (N.D.Ill. 2006), held that the disclosure of information to the Securities and Exchange Commission pursuant to a confidentiality agreement did not waive applicable privileges.
Mr. Awalt’s disclosure of information to the SSA took place with all of the protections of the Privacy Act of 1974, 5 U.S.C. § 551 et seq., in place. The Privacy Act guarantees that information disclosed in support of an application to the SSA for benefits will never be disclosed beyond the agency without the express consent of the applicant. See 5 U.S.C. § 552a(b). Thus, the Privacy Act is just the sort of “agreement ... not to spread [privileged information] further” that the Seventh Circuit was describing in Dellwood Farms. Therefore, Mr. Awalt’s application for benefits did not waive the psychotherapist-patient privilege that protects psychiatric records that are a part of Mr. Awalt’s agency file because the SSA records were provided to the agency by Mr. Await against the backdrop of the protections provided by the Privacy Act of 1974. Because the SSA documents have little to no probative value to this case, and because they are protected by the psychotherapist-patient privilege which has not been waived by Mr. Awalt’s request for benefits to the SSA, the Defendants’ Motion to Compel production of the SSA documents is accordingly denied.
iii. Mr. Awalt’s Provena St. Joseph’s Hospital Mental Facilities and Fort Logan Mental Hospital Records
Finally with respect to Mr. Awalt’s mental health records the Defendants seek com
Mrs. Await contends that these as-of-yet unidentified set of documents that may or may not be in dispute are both irrelevant to the instant suit and are protected by the psychotherapist-patient privilege. Mrs. Await claims that she has no idea whether this hypothetical set of documents exists and that she has not had the opportunity to obtain these documents for the Court’s ex parte in camera review. The reason for this lack of clarity is that the Defendants delayed requesting the documents until after the parties appeared before this Court on June 18, 2012, whereafter the Defendants asked for the first time for psychological records that may be in the possession of Provena St. Joseph’s Hospital or the Fort Logan Mental Hospital in Colorado pertaining to treatment received by Mr. Await between 1995 and 1997. This time frame is referenced in the handwritten release that Mr. Await provided to the SSA, in which he mentioned the mid-1990s suicide attempt and gave the SSA permission to explore any documents kept by these two institutions. No records from either institution are among the files that were produced to Mrs. Await by the SSA pursuant to her subpoena for Mr. Awalt’s agency file and therefore the Court is not in the possession of these potential records either.
As the evidence provided by Mrs. Await demonstrates, the record assembled so far has yielded zero evidence that Mr. Await had suicidal tendencies at all in the fifteen years preceding his death at the Grundy County Jail. Indeed the record and the evidence shows that in evaluations conducted by both the IDOC and the SSA over a period of years Mr. Await was repeatedly found to pose no threat of suicide. Fifteen-year-old records of Mr. Awalt’s psychological treatment have little, if any, probative value in this case. No requested record purports to establish that Mr. Await was suicidal right before his untimely death. Furthermore, any documents, if they exist at all, would be covered by the psychotherapist-patient privilege, which has not been waived here. To repeat, Mrs. Await has not put her psychological state or her deceased husband’s at issue in this suit, and she is seeking only ‘garden variety’ emotion damages and therefore the privilege is not waived by her prayer for relief. See, e.g., Flowers, 274 F.R.D. at 225; Santelli, 188 F.R.D. at 309. Mrs. Await has no plans to rely on records from Provena St. Joseph’s Hospital Mental Facilities and Fort Logan Mental Hospital in proving her case. See, e.g., Noe, 2011 WL 1376968 at *1. Thus, the Defendants’ Motion to Compel Mr. Awalt’s mental health records kept by Provena St. Joseph’s Hospital Mental Facilities and Fort Logan Mental Hospital is also denied.
iv. Mrs. Awalt’s Guardian Angel Community Services Records
The Defendants next contend that they are entitled to signed waivers for records relating to Mrs. Awalt’s alleged domes
The Defendants principally rely on Cobige v. City of Chicago, III., 651 F.3d 780 (7th Cir.2011), to support their argument that Mrs. Await cannot simultaneously allege that Mr. Await was a source of support, advice, and companionship while also attempting to exclude from evidence negative attributes of his character that bear on those same issues. The Defendants’ reliance on Cobige is misplaced. The court in Cobige was not faced with the question of whether the negative character evidence at issue was protected by any of the testimonial privileges that would protect from disclosure otherwise relevant character evidence. Cobige holds that under Illinois law, which makes a surviving relatives’ emotional loss and familial ties relevant to the issue of damages, it is a reversible error to exclude negative evidence of a decedent’s character proffered to contradict a favorable portrait of a decedent’s character under Federal Rule of Evidence 403. See Cobige, 651 F.3d at 785 (citing Pleasance v. Chicago, 396 Ill.App.3d 821, 336 Ill.Dec. 363, 920 N.E.2d 572, 578 (2009)). Thus, the issue of privilege had no bearing on the decision in Cobige. That is not the case here, where the documents at issue may be protected by the psychotherapist-patient privilege.
Mrs. Await contends that the documents the Defendants seek only concern counseling that she received after her minor daughter became the victim of a sexual assault and do not include any records relating to counseling for domestic abuse. Mrs. Await provided the documents to this Court for its ex parte in camera review. Guardian Angel is not in the possession of any documents related to domestic abuse counseling of Mrs. Await because Mrs. Await never sought any domestic abuse counseling there. The Guardian Angel files concern counseling regarding the rape of Mrs. Awalt’s minor daughter. The Defendants argue that because such traumatic incidents often have a significant impact on every member of the family and every relationship therein, the files may contain statements about the effect that the event had on Mr. Await personally, his troubled relationship with his wife, or the family unit. The Defendants admit that they can only speculate about whether the files contain information that is relevant to this suit.
There is no basis upon which to argue that records of rape-crisis counseling that took place in response to an unrelated crime committed against Mrs. Awalt’s minor daughter are probative of any fact at issue in this suit. Even assuming some hypothetical relevance, which this Court doubts exists from its ex parte in camera review, the documents are protected by the federal psychotherapist-patient privilege from compelled disclosure. Mrs. Await has not put her counseling or mental state into issue with respect to the ease, except to the extent that she claims ‘garden variety’ emotional damages resulting from the Defendants’ alleged misconduct— the sort of damages that are the natural consequence of the alleged misconduct and not specific, concrete evidence of psychological distress or counseling for such distress. See, e.g., Flowers, 274 F.R.D. at 225; Santel-li, 188 F.R.D. at 309. Such a claim for ‘garden variety’ emotional damages is not sufficient to find a waiver of the psychotherapist-patient privilege. See Id. Furthermore, these records are not “germane to the plaintiffs lawsuit,” Doe, 456 F.3d at 718, another requirement to finding waiver of the privi
Furthermore, even if the documents were of some relevance, and assuming that the federal common law privilege did not apply, Illinois law protects these documents from disclosure. Illinois statutory law “protect[s] victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them.” 735 ILCS 5/8-802.1. This state-law prohibition on disclosure is absolute and cannot be waived through litigation conduct. See Schabell v. Nozawa-Joffe, No. 08 C 50018, 2010 WL 1704471, *l-*2 (N.D.Ill. April 27, 2010); People v. Foggy, 121 Ill.2d 337, 118 Ill.Dec. 18, 521 N.E.2d 86, 91 (1988) (“Moreover, as the appellate court noted in this case, the legislature originally allowed only a qualified privilege for communications between sexual assault counselors and victims but later decided to strengthen the privilege and make it absolute.”). Therefore, Mrs. Await may assert the federal common law psychotherapist-patient privilege, as well as the Illinois state statutory law, to protect from compelled disclosure her confidential communications with counselors at Guardian Angel. The Defendants’ Motion to Compel waivers for records of Mrs. Awalt’s treatment at Guardian Angel Community Services is therefore also denied.
v. Mrs. Awalt’s Other Domestic Violence Records
The Defendants argue that they are entitled to discover records of Mrs. Awalt’s treatment for domestic abuse by Mr. Await. In the petition for an order of protection that Mrs. Await filed against Mr. Await she stated that she went to the hospital on September 7, 2010 to get medical attention after the domestic incidence with Mr. Await transpired. Mrs. Awalt’s counsel has stated that Mrs. Await did not seek treatment from any psychotherapist related to that incident, but she has nevertheless refused to sign HIPPA waivers allowing the Defendants to investigate her claims of domestic violence on the basis of the psychotherapist-patient privilege.
Mrs. Await insisted on obtaining her own records from Morris Hospital, which she disclosed to the Defendants on June 29, 2012, but which do not contain any records of treatment on September 7, 2010. The Defendants thus issued an interrogatory to Mrs. Await requesting the name of the hospital where she sought treatment for the domestic abuse. Once the Defendants become aware of where Mrs. Await sought treatment they will request records from that entity. Therefore, the Defendants request that this Court order Mrs. Await to sign a medical release for any treaters from whom she sought treatment related to domestic abuse during her relationship with Mr. Await.
Unlike the psychotherapist-patient privilege the federal common law of privileges does not recognize a more general physician-patient privilege. See Whalen v. Roe, 429 U.S. 589, 602 n. 28, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (“The physician-patient evidentiary privilege is unknown to the common law. In States where it exists by legislative enactment, it is subject to many exceptions and to waiver for many reasons.”); United States v. Bek, 493 F.3d 790, 802 (7th Cir.2007) (“But we can find no circuit authority in support of a physician-patient privilege, even after Jaffee.”)\ Northwestern Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 926 (7th Cir.2004) (“the evidentiary privileges that are applicable to federal-question suits are given not by state law but by federal law, Fed.R.Evid. 501, which does not recognize a physician-patient (or hospital-patient) privilege.”).
The psychotherapist-patient privilege applies to licensed psychiatrists, psychotherapists, social workers, or any other kind of counselor to whom the privilege might attach. See United States v. Schwensow, 151 F.3d 650, 654 (7th Cir.1998). Furthermore, for the privilege to apply the statements must have been made for the purpose of obtaining psychiatric treatment. See Id. Here the Defendants simply seek disclosure of medical records pertaining to Mrs. Awalt’s
III. Conclusion
For the foregoing reasons, the Court finds that the preponderance of materials that the Defendants seek to discovery are protected from compelled disclosure by the psychotherapist-patient privilege, with the exception of medical records regarding Mrs. Awalt’s treatment for domestic abuse. Therefore, the Defendants’ Motion to Compel is denied with respect to Mr. Awalt’s mental health care records kept by the IDOC, the SSA, and Provena St. Joseph’s Hospital Mental Facilities and Fort Logan Mental Hospital. The Motion is also denied with respect to Mrs. Awalt’s counseling records from Guardian Angel. The Defendants’ Motion to Compel is granted with respect to medical records pertaining to Mrs. Awalt’s treatment for domestic abuse by Mr. Await. Mrs. Await is ordered to sign a medical waiver for any records relating to her treatment for domestic abuse during her relationship with Mr. Await.
. The parties have satisfied the procedural prerequisites required by the Federal Rules of Civil Procedure and the Local Rules for the Northern District of Illinois in bringing the instant Motion. Federal Rule of Civil Procedure 37(a)(2)(A) and Local Rule 37.2 require that the movant make a good faith attempt to confer with the nonmovant before bringing a motion to compel discovery in a federal district court. The Defendants satisfied their obligations under these rules by making a good faith effort to confer with Mrs. Awalt’s counsel concerning the instant discovery disputes before asking for this Court's assistance and intervention. Thus, the Defendants’ Motion to Compel is properly before the Court.
. The parties have resolved their dispute regarding the Defendants' contention interrogatories, thereby mooting that portion of this Motion to Compel.
. Although this federal question suit, brought under the Court's grant of authority to hear such cases pursuant to 28 U.S.C. § 1331, involves supplemental state-law claims arising under Illinois law, the resolution of the privilege issues are governed by the federal common law of privileges and not by the Illinois psychotherapist-patient privilege which is codified in the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq. See Jaffee, 518 U.S. 1 at 5, 116 S.Ct. 1923 (applying the federal common law of privileges, and not Illinois state law of privilege, to a case that included a claim arising under 42 U.S.C. § 1983 as well as a state-law claim under the Illinois Wrongful Death Act); In re Pebsworth, 705 F.2d 261, 262 (7th Cir.1983) (holding that in nondiversity actions the contours and exceptions of privileges are matters of federal common law and that state-created principles of privilege do not control); see also Doe v. Oberweis Dairy, 456 F.3d 704, 718 (7th Cir.2006) (Posner, J.) (applying the federal common law psychotherapist-patient privilege recognized in Jaffee to a case involving a federal claim arising under Title VII of the Civil Rights Act of 1964 as well as a host of supplemental state-law claims brought pursuant to Illinois state law).