GLORIA POWERS v. COLONIAL TOYOTA, INC., also known as COLONIAL MOTORS, INC Civil No. 3:18CV01604(RNC) United States District Court, D. Connecticut Filed December 10, 2019 Merriam, Sarah A. L., United States Magistrate Judge ORDER ON DEFENDANT'S MOTION TO COMPEL [Doc. #65] *1 Defendant Colonial Toyota, Inc. (“defendant” or “Colonial”) has filed a motion seeking to compel plaintiff Gloria Powers (“plaintiff” or “Powers”) to provide copies of, or authorizations for the release of, her medical and mental health treatment records. [Doc. #65]. Plaintiff has filed a memorandum in opposition to the Motion to Compel. [Doc. #71]. For the reasons set forth below, the Court GRANTS defendant's Motion to Compel. I. BACKGROUND The Court presumes general familiarity with the background of this matter. However, the Court will briefly address the procedural and factual background as relevant to the pending motion to compel. Plaintiff brings this action in twelve counts, asserting claims sounding in employment discrimination and retaliation. In the Parties’ Joint Planning Report, plaintiff summarized the claims of the Complaint as follows: (1) hostile work environment on the basis of sex in violation of Title VII and Connecticut's Fair Employment Practices Act (“CFEPA”); (2) retaliation in violation of Title VII and CFEPA; (3) retaliation on the basis of age in violation of the ADEA; (4) hostile work environment on the basis of age in violation of CFEPA; (5) hostile work environment on the basis of disability in violation of the ADA and CFEPA; (6) retaliation in violation of the ADA; and (7) retaliation in violation of the FMLA. Doc. #17 at 2. Powers was employed by Colonial from 2012 through March 2018. See Doc. #1 at 4. Throughout her employment, Colonial was owned by Robert E. Crabtree, Jr. (“Crabtree”), to whom Powers reported. See id. at 3, and passim. The Complaint alleges that Crabtree engaged in harassing and discriminatory behavior toward Powers, and created a hostile working environment. Plaintiff seeks damages including back pay, front pay, and “[c]ompensatory damages[.]” Doc. #1 at 19. On May 20, 2019, defendant filed a motion to compel seeking “production of Plaintiff's medical records.” Doc. #42 at 1. Plaintiff filed an objection (Doc. #48), and the dispute was referred to Judge Donna F. Martinez. See Doc. #56. Judge Martinez heard oral argument on the motion on July 17, 2019. See Doc. #61. The following day, the Court denied the motion without prejudice. See Doc. #60. The denial without prejudice was based on the representation of plaintiff's counsel, at oral argument, “that she intends to amend the complaint so as to eliminate issues at the heart of this discovery dispute.” Id. at 1. The Court directed plaintiff's counsel to provide a proposed amended complaint to defense counsel, and ordered counsel to meet and confer regarding possible resolution of the dispute in light of the proposed amended complaint. See id. at 2-3. On August 12, 2019, Colonial filed its renewed motion to compel, which is now before the undersigned. [Doc. #65]. Powers filed a memorandum in opposition on September 3, 2019. [Doc. #71]. The parties represent that plaintiff's counsel proposed an amended complaint, but the potential amendments did not resolve the dispute at issue. No amended complaint has been filed. On November 16, 2019, the Court issued a Notice and Order stating, inter alia, that in light of the fact that no amended complaint was ever filed on the docket, and that the parties had represented in an October 11, 2019, status report that they no longer intended to amend the pleadings, the Court intended “to consider the discovery dispute in the context of only the operative Complaint, Doc. #1, rather than any putative Amended Complaint.” Doc. #80. Neither party has objected to this Notice. II. LEGAL STANDARD *2 Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). The advisory committee's notes to the recent amendment of Rule 26 further explain that [a] party claiming that a request is important to resolve the issues should be able to explain the ways in which the underlying information bears on the issues as that party understands them. The court's responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery. Fed. R. Civ. P. 26 advisory committee's note to 2015 amendment. “[T]he burden of demonstrating relevance remains on the party seeking discovery.” Bagley v. Yale Univ., 315 F.R.D. 131, 144 (D. Conn. 2016) (citation omitted), as amended (June 15, 2016); Republic of Turkey v. Christie's, Inc., 326 F.R.D. 394, 400 (S.D.N.Y. 2018) (same). Once the party seeking discovery has demonstrated relevance, the burden then shifts to “[t]he party resisting discovery ... [to] show[ ] why discovery should be denied.” Cole v. Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn. 2009) (alterations added). III. DISCUSSION Defendant seeks to compel plaintiff to provide medical and mental health treatment records, which were originally sought by a variety of interrogatories and requests for production, including: Production Request 11: Please complete and sign a copy of the attached release for each of the doctors, psychiatrists, psychologists, physicians, counselors, clinicians, social workers, clergy or other health care providers with whom Plaintiff has treated or consulted as identified in response to Defendant's interrogatories[.] Doc. #43 at 6. Defendant also seeks these records in response to general, standard requests for “all documents reflecting, concerning or in any way related to” or which “support or relate to” the allegations in the Complaint. Id. The request for medical records not relating to mental health has been limited by agreement of the parties to records sufficient, at a minimum, to establish her disability, the timing of her breast cancer diagnosis, and any medical appointments that she scheduled, cancelled or missed for any annual physical examinations, gynecological examinations, or mammograms dating back to 2012, or authorizations sufficient for Colonial Toyota to obtain the same[.] Doc. #43 at 11. The request for mental health treatment records seeks, without limitation, “psychotherapy treatment notes from 2010 to the present, or authorizations sufficient for Colonial Toyota to obtain the same.” Id. *3 Plaintiff objects that much of the information sought is not relevant, and that her medical and mental health treatment files are privileged, making disclosure inappropriate. See Doc. #48. In particular, as to mental health treatment records, Powers contends that the allegations of the Complaint “do not put her mental health at issue[,]” and thus her mental health records are not discoverable. Doc. #71 at 9. As noted above, after oral argument on the original motion was held, plaintiff proposed a potential amended complaint, which plaintiff contended would have limited her claims to “garden variety emotional distress” and thereby rendered any inquiry into her mental state improper. The briefing before the Court now largely assumes that the putative amended complaint would have been filed, and would be the operative complaint. It was not, and it is not, but plaintiff's arguments in her most recent submission are heavily premised on this erroneous assumption. The Court has therefore considered the arguments set forth in the original memorandum in opposition to the motion to compel, in addition to those in the most recent memorandum. See Doc. #48. The Court finds, in short, that plaintiff has placed both her physical and mental health squarely at issue in this case, by the detailed allegations of her Complaint. The Complaint makes a number of assertions relating to plaintiff's physical and mental condition and, importantly, a number of allegations regarding the effect of Crabtree's behavior and the “toxic, demoralizing environment” at Colonial on plaintiff's health. In particular, the Court notes the following allegations: • When “the toll of this brutal work environment became too great,” plaintiff “initiated FMLA leave to cope with the health conditions [Crabtree's] actions had created.” Doc. #1 at 1-2. • From 2012 through 2015, “Crabtree became annoyed whenever Ms. Powers tried to take a day off[.]” “As a result, in 2014 and 2015, Ms. Powers missed her regular mammograms.” “Ms. Powers was finally able to get a mammogram, and in February 2016, she was diagnosed with Stage 3 breast cancer.” Doc. #1 at 9. • “Ms. Powers told Mr. Crabtree that her doctors recommended that she avoid stress and rest as much as possible. Nonetheless, he continued to force her to work late hours.” Doc. #1 at 9. • Powers was “[t]errified of losing her job[.]” Doc. #1 at 11. • In or about March 2018, Crabtree “screamed” at Powers “for more than one hour -- until Ms. Powers felt physically ill and began sobbing uncontrollably.” Doc. #1 at 11. • “On or about March 14, 2018, Ms. Powers took a medical leave of absence in order to cope with a health condition characterized by extreme anxiety and panic attacks.” This “health condition was the product of the hostile work environment to which [Powers] was subjected by Mr. Crabtree.” Doc. #1 at 11. The Complaint, thus, expressly alleges that the conduct of Crabtree and the hostile work environment he created directly caused Powers to (1) miss important medical appointments,[1] (2) work late hours against medical advice, and (3) suffer from serious health conditions. It is significant that the Complaint affirmatively asserts that the conduct of Crabtree -- which plaintiff attributes for legal purposes to Colonial -- created or produced specific health conditions suffered by Powers. In spite of these direct allegations in the Complaint, plaintiff's counsel asserted in an email to defense counsel that plaintiff objected to the disclosure of information regarding missed appointments because plaintiff does “not allege that Colonial Toyota caused or contributed to Ms. Powers’ disability.” Doc. #71-2 at 2. *4 Defendant has also submitted, as an attachment to its motion, a memorandum decision awarding unemployment benefits to Powers. See Doc. #66-1. Powers appeared at two hearings in 2018 in connection with the award, both times accompanied by counsel of record in this action. See Doc. #66-1 at 50. The Appeals Referee made findings of fact, presumably based on evidence presented by Powers, including the following: • Powers “did not return to work because she realized that the job was causing her too much stress and anxiety, especially as she was still recovering from breast cancer.” Doc. #66-1 at 51. • Powers “saw a therapist to discuss her concerns about her recovery and her job. The doctor explained to [Powers] that stress was a large reason for the cancer to return and that she should look for another job.” Doc. #66-1 at 51. • Powers “also saw her personal therapist on a regular basis, who advised her to look for other work that was less stressful. That therapist saw an increase in [Powers’] anxiety and panic attacks.” Doc. #66-1 at 51. • Powers left her job because “she was having too much anxiety and panic attacks from the work environment[.]” Doc. #66-1 at 52. • Powers was “still in recovery from the breast cancer and the stress from work was having a negative impact on her recovery[.]” Doc. #66-1 at 52. In her submission to the Appeals Referee, Powers stated: “I was physically able to work anywhere else but could not work in the hostile work environment at Colonial -- which was created by the owner who was also my direct boss -- without exacerbating my health.” Doc. #66-1 at 64. As noted, plaintiff now contends in briefing that she does “not allege and would not seek to prove that Colonial Toyota caused or worsened her cancer[.]” Doc. #71 at 8.[2] Plaintiff's assertions, through counsel, regarding the limitations of her claims directly contradict the Complaint itself and the other evidence presented. “Though the plaintiff now seeks to avoid production of these records by narrowing the scope of her complaint through explanation and qualification in response memoranda, ... it is the Complaint that defines the claims. Defendant's conclusion that the plaintiff intends to put her mental or emotional state at issue in this case is a reasonable interpretation within the four corners of the complaint and the” other evidence available. Green v. St. Vincent's Med. Ctr., 252 F.R.D. 125, 129 (D. Conn. 2008) (internal quotation marks omitted). Plaintiff herself emphasizes that, whether or not she limits the damages sought here to “garden variety” emotional distress damages, the emotional distress suffered by Powers is squarely at issue: “Indeed, the very nature of Ms. Powers’ hostile work environment claims presumes emotional distress.” Doc. #71 at 11. Cf. Marsteller v. Butterfield 8 Stamford LLC, No. 3:14CV01371(AWT), 2017 WL 5769903, at *3 (D. Conn. Nov. 27, 2017) (“Whatever damages plaintiff seeks, her claims require a showing of severe emotional distress, and defendants are entitled to discovery of her treatment records to provide a reasonable opportunity to defend against these claims.”). *5 The Court finds that the requested records are relevant to the claims as set forth in the operative complaint. The Court thus moves on to the question of whether there is any basis for withholding such relevant records. Plaintiff asserts that the psychotherapist privilege protects her mental health treatment records from disclosure. In this case, in which subject matter jurisdiction is premised on a federal question, see Doc. #1 at 2, and the state law claims in issue are addressed under the Court's supplemental jurisdiction, “the asserted privileges are governed by the principles of federal law.” von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987). Federal common law recognizes “a privilege protecting confidential communications between a psychotherapist and her patient[.]” Jaffee v. Redmond, 518 U.S. 1, 9 (1996). “Like other testimonial privileges, the patient may of course waive the protection.” Id. at 15 n.14. Waiver of a privilege need not be express. It is well established doctrine that in certain circumstances a party's assertion of factual claims can, out of considerations of fairness to the party's adversary, result in the involuntary forfeiture of privileges for matters pertinent to the claims asserted. The loss of the privilege in these circumstances is sometimes described as implied waiver, [and] sometimes as “at issue” waiver because it results from the party having placed a contention at issue. John Doe Co. v. United States, 350 F.3d 299, 302 (2d Cir. 2003), as amended (Nov. 25, 2003) (internal citations omitted). “Despite the strict protection it affords, the psychotherapist-patient privilege may be waived. Waiver occurs when a plaintiff puts his or her mental condition at issue in the case.” Jacobs v. Conn. Cmty. Tech. Colleges, 258 F.R.D. 192, 195 (D. Conn. 2009) (internal citation omitted); see also, e.g., Bagley v. Yale Univ., No. 3:13CV01890(CSH), 2016 WL 1531341, at *2 (D. Conn. Apr. 15, 2016) (holding that a plaintiff's “specific and particularized claim for emotional distress, allegedly caused by her employment ‘situation’ ... results in a forfeiture of her psychotherapist-patient privilege”). Plaintiff repeatedly asserts that she has not waived this privilege because she plans to limit her request for damages to “garden variety” emotional distress damages. “That means she cannot -- and will not -- introduce evidence of related psychotherapeutic treatment.” Doc. #48 at 6. Plaintiff relies on In re Sims, 534 F.3d 117, 14041 (2d Cir. 2008), for the proposition that the allegations of the Complaint do not govern the discoverability of mental health records; rather, “what matters is the evidence that will be introduced at trial.” Doc. #48 at 6. Sims, however, is inapposite here. The plaintiff in Sims brought claims of excessive force against corrections officers. In finding that disclosure of Sims’ mental health records was not warranted, the Second Circuit emphasized “the absence of any allegation of emotional injury in Sims's pleadings[.]” Sims, 534 F.3d at 142. The Sims Court reviewed the allegations of both the original and amended complaints, and noted that “neither complaint so much as mentions emotional injury.” Id. at 135. Sims *6 testified, ‘I wouldn't say I suffered mental injuries as a result of this’; he testified that he was not receiving any treatment for emotional injury related to the events underlying this litigation; and nowhere did he state that he was seeking damages for mental or emotional distress. Sims, 534 F.3d at 135 (citations omitted). There is a meaningful difference between cases in which the only potential relevance of mental health records is a claim for damages based on emotional distress, and a case like this one in which the factual allegations are grounded in the emotional suffering of the plaintiff at the hands of the defendant.[3] The gravamen of Sims’ complaint was that he was physically assaulted. Here, the Complaint and record are replete with claims that defendant caused Powers to suffer stress, anxiety, and panic attacks, and even plaintiff acknowledges that “the very nature of Ms. Powers’ hostile work environment claims presumes emotional distress.” Doc. #71 at 11. As a result, plaintiff has waived the psychotherapist-patient privilege. Defendant requests that plaintiff produce records dating back to 2010, arguing that a period of time prior to Powers’ employment with Colonial is appropriate because Powers has revealed that she was engaged in mental health treatment prior to the beginning of that employment. See Doc. #43 at 10. Generally, a defendant is entitled to learn whether the emotional distress suffered by a plaintiff “was caused by something other than Defendant's conduct.” Kelly v. Times/review Newspapers Corp., No. 14CV02995(JMA)(SIL), 2016 WL 2901744, at *2 (E.D.N.Y. May 18, 2016). Even where, as here, a plaintiff asserts that she will not offer expert testimony regarding her mental health, “her allegations regarding the consequences of the stress caused by defendants conduct opens the door to discovery regarding other causes of her alleged decline in physical and mental well-being.” M & T Mortg. Corp. v. Miller, No. 02CV05410(NG)(MDG), 2005 WL 8156781, at *1 (E.D.N.Y. Nov. 4, 2005). The Court finds that discovery of plaintiff's mental health records is appropriate beginning one year prior to her employment with Colonial. Defendant's request also seeks records up through the present day. The Court finds that, in light of the rationale underlying the Court's order of production, the time period for the disclosure of mental health records should close at the end of 2018, the year that Powers’ employment with Colonial ended. IV. CONCLUSION *7 For the reasons set forth herein, the Court GRANTS Defendant's Renewed Motion to Compel Plaintiff's Medical and Mental Health Records. [Doc. #65]. Plaintiff shall produce medical records sufficient to establish her disability, including the timing of her breast cancer diagnosis, and any medical appointments that she scheduled, canceled or missed for any annual physical examinations, gynecological examinations, or mammograms, from 2012 through March 2018. Plaintiff shall also produce mental health treatment records, including psychotherapy treatment notes, from one year prior to the date of her hire by Colonial Toyota, through December 31, 2018. Plaintiff shall produce these materials, or releases permitting defense counsel to obtain the materials, on or before January 3, 2020. All records disclosed pursuant to this Order shall be subject to a CONFIDENTIAL – ATTORNEYS’ EYES ONLY restriction. See Doc. #5 at 1. While the standard protective order contemplates such a restriction for commercial documents, the nature of the materials at issue here, coupled with the allegations of the Complaint, makes such a restriction appropriate. It is so ordered, at New Haven, Connecticut, this 10th day of December, 2019. Footnotes [1] The context of this allegation strongly implies a claim that, had Powers been able to attend these appointments, she might have been diagnosed earlier, before her cancer reached Stage 3. It is not clear what basis plaintiff may have to support such an inference. [2] Plaintiff asserts that “this Court accepted[ ]” that claim. Doc. #71 at 8. The undersigned has reviewed the transcript cited by plaintiff to support that assertion. The Court notes that Judge Martinez was not making a ruling when she commented that “however bad the treatment is it didn't cause cancer.” Doc. #62 at 14. It is also noteworthy that plaintiff's counsel did not argue that the Complaint did not contain such allegations; rather, plaintiff's counsel stated: “I understand that the complaint has those allegations” and that plaintiff was “happy to amend the complaint to remove the allegations to the extent it suggests that it caused or contributed to her cancer diagnosis[.]” Id. [3] A review of the other cases cited by plaintiff for this proposition, see Doc. #71 at 12, reveals that each is inapposite for the same reason as is Sims. See, e.g, Briganti v. Connecticut Tech. High Sch. Sys., No. 3:13CV01832(CSH), 2015 WL 728518, at *4 (D. Conn. Feb. 19, 2015) (“Plaintiff at bar has not pled any allegation of emotional injury in her complaint.”); MacCluskey v. Univ. of Connecticut Health Ctr., No. 3:13CV01408(MPS), 2014 WL 7404565, at *2 (D. Conn. Oct. 20, 2014) (“MacCluskey will not allege or offer testimony regarding specific mental or emotional disorders or diagnoses.”); Perry v. City of New Haven, No. 3:11CV01485(RNC), 2012 WL 3887061, at *2 (D. Conn. Sept. 6, 2012) (only mention of emotional distress in complaint was in demand for relief, and plaintiff limited any such claims to garden variety emotional distress damages).