S.M., a minor by and through her parents, C.M. and D.M., and C.M. and D.M. individually, N.A. individually, M.S., a minor by and through her parent S.C., and S.C., individually, K.F., a minor, by and through her parent, C.F., and C.F. individually, C.S. a minor by and through her parent, S.S., and S.S. individually, R.H., a minor by and through his parent J.H., and J.H. individually, Plaintiffs, v. BLOOMFIELD HILLS SCHOOL DISTRICT, PATRICK WATSON, and CHARLIE HOLLERITH, in their individual and official capacities, Defendants Case No. 2:21-cv-12707 United States District Court, E.D. Michigan, Southern Division Filed December 21, 2022 Counsel Mark Roy Bendure, Bendure & Thomas, Grosse Pointe Park, MI, Sean A. Riddell, Lakeshore Legal Aid, Detroit, MI, Leonard Mungo, Leonard Mungo Assoc., Detroit, MI, for Plaintiffs S.M., Cedric McCarrall, Carmen Davidson-McCarrall, S.C., K.F., J.H., M.S., C.F., R.H., S.S., C.S. Michael D. Weaver, Plunkett & Cooney, Bloomfield Hills, MI, for Defendants. Altman, Kimberly G., United States Magistrate Judge ORDER DENYING DEFENDANTS' MOTION TO COMPEL (ECF No. 32) I. Introduction *1 This is a civil rights lawsuit alleging racial discrimination and racial animus by Defendants Bloomfield Hills School District, Patrick Watson, and Charlie Hollerith against Plaintiffs, who are African-American students attending Bloomfield Hills High School and their parents. Under 28 U.S.C. § 636(b)(1), all pretrial matters were referred to the undersigned. (ECF No. 29). Before the Court is Defendants' motion to compel responses to requests regarding Plaintiffs' medical and mental health care or treatment. (ECF No. 32). The undersigned conducted a telephone conference on November 29, 2022, to discuss the motion, after which she ordered the parties to submit supplemental briefs. (ECF No. 42). The supplemental briefs have been filed, (ECF Nos. 46, 47), and the matter is now ready for decision. For the reasons stated below, Defendants' motion to compel will be DENIED. II. Background In seeking to compel medical records, Defendants assert that Plaintiffs have put their mental health directly at issue by claiming damages for emotional distress. As such, Defendants seek the following from all Plaintiffs: Please produce the name, address, and telephone number for all mental health care providers, mental health facilities, and medical care providers from whom the Plaintiff has received care or treatment within the last 5 years. (ECF No. 32, PageID.292). Defendants contend that Plaintiffs waived any psychotherapist-patient privilege by placing their mental health at issue in the complaint. (Id.). Plaintiffs agreed to produce the above information for each of the students involved. Thus, this portion of Defendants' motion has been resolved. As to each Parent Plaintiff, Plaintiffs' counsel responded as follows: Plaintiff objects to this request in that it seeks privileged information protected by the Doctor/Psychotherapist Patient Privilege, Jaffe v. Redmond, 518 U.S. 1, 15 (1996). Further, Plaintiff asserts ‘garden-variety’ emotional harm and, therefore, does not place Plaintiff's mental condition in controversy. (ECF No. 32, PageID.292). Plaintiffs' counsel also offered to memorialize this assertion to make clear that none of the Parent Plaintiffs are seeking damages for emotional harm beyond what the courts have labeled “garden variety.” (ECF No. 36, PageID.446-447). III. Legal Standard The scope of discovery, which permits a party to obtain “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,” is always subject to being “limited by court order[,]” and thus, within the sound discretion of the Court. Fed. R. Civ. P. 26(b)(1); see also State Farm Mut. Auto. Ins. Co. v. Pointe Physical Therapy, LLC, 255 F. Supp. 3d 700, 704 (E.D. Mich. 2017) (“Further, a court has broad discretion over discovery matters, Trepel v. Roadway Express, Inc., 194 F.3d 708 (6th Cir. 1999), and in deciding discovery disputes, a magistrate judge is entitled to that same broad discretion, and an order of the same is overruled only if the district court finds an abuse of discretion.”). Discovery is more liberal than even the trial setting, as Rule 26(b) allows discovery of information that “need not be admissible in evidence.” Fed. R. Civ. P. 26(b)(1). *2 If a party believes that another party is not complying with discovery requests, then it may file a motion to compel. Motions to compel are governed by Fed. R. Civ. P. 37(a)(3)(B), which states, “A party seeking discovery may move for an order compelling an answer, designation, production, or inspection.” IV. Discussion In support of their position that “garden-variety” claims for emotional harm do not put the Parent Plaintiffs' medical condition at issue, Plaintiffs cite Boone v. Saginaw Health Clinic, PLLC, No. 1:20-CV-12195, 2021 WL 3771872 (E.D. Mich. Aug. 25, 2021). In Boone, the plaintiff claimed a retaliatory discharge and sought damages for “ ‘emotional distress, humiliation, [and] mental anguish’ allegedly caused by her termination[,]” as well as statutory damages. Id. at *1. The defendant moved to compel the plaintiff to undergo an independent medical examination,[1] arguing that she had waived any objection to it by placing her mental condition “in controversy.” Id. Rejecting this argument, the district court observed that “[t]he majority of courts have held that plaintiffs do not place their mental condition in controversy merely by claiming damages for mental anguish or ‘garden variety’ emotional distress[,]” and that “[c]ourts in the Sixth Circuit adopt the majority view.” Id. at *3 (internal quotation marks and citations omitted). The district court found that providing evidence of garden-variety emotional distress solely through plaintiff's testimony would be “a proffer that is perfectly consistent with case law[,]” rendering her history of psychological treatment irrelevant. Id. at *5 (citations omitted).[2] While Boone dealt with an independent medical examination and not medical records, the analysis of garden-variety claims is the same. Plaintiffs also cite Salser v. Dyncorp Int'l, Inc., No. 12-10960, 2014 WL 7139886, at *2 (E.D. Mich. Dec. 12, 2014), which discusses the majority view on waiver of the psychotherapist-patient privilege in the context of garden-variety damages: The majority view holds that “where a plaintiff ‘merely alleges “garden-variety” 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.’ ” Burke v. Lawrence, 2013 WL 2422883, *2 (W.D. Mich. 2013) (quoting Koch v. Cox, 489 F.3d 384, 390 (D.C. Cir. 2007)). In response, Defendants argue that the psychotherapist-patient privilege is waived where a plaintiff “put[s] her emotional state at issue in the case,” Maday v. Pub. Libraries of Saginaw, 480 F.3d 815, 821 (6th Cir. 2007), as they contend the Parent Plaintiffs have done here. Defendants also note that at least one court has allowed discovery of medical records even where alleged damages due to emotional distress are garden-variety; see Van Beek v. Robinson, No. 2:11–CV–10514, 2012 WL 1676641, at *1 (E.D. Mich. May 14, 2012) (compelling discovery where the plaintiff alleged “mental anguish as well as emotional pain and suffering” because this allegation placed the plaintiff's mental and emotional condition at issue, without discussing whether the allegations were of the garden-variety type or not). *3 Still other courts have found that the psychotherapist-patient privilege is only waived where a patient “puts the substance of the advice from or communication with the psychotherapist directly at issue in the suit.” See, e.g., Burke v. Lawrence, supra, 2013 WL 2422883, at *2. The majority view described above is a middle ground, accepting that garden-variety mental health damages do not necessarily place a party's mental health in controversy, but that elevated emotional damages do. In Kubik v. Cent. Mich. Univ. Bd. of Trustees, No. 15-CV-12055, 2016 WL 9631633 (E.D. Mich. Mar. 17, 2016), objections overruled, 2016 WL 4425174 (E.D. Mich. Aug. 22, 2016), the court following this middle ground adopted a five-factor test for determining whether a party has alleged “more than garden variety damages” based on, (1) [T]he presence of a cause of action for intentional or negligent infliction of emotional distress; (2) [A]n allegation of a specific mental or psychiatric injury or disorder; (3) [A] claim of unusually severe emotional distress; (4) [A] proffer of expert testimony to support a claim of emotional distress; and/or (5) [A] concession by the plaintiff that his or her mental condition is in controversy. Kubik at *5 (citing Porter v. Pinkerton Gov't Servs., Inc., 304 F.R.D. 24, 30–31 (D.D.C. 2014) (quotation omitted); Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 547, 552 (S.D. Ohio 2014); Fitzgerald v. Cassil, 216 F.R.D. 632, 637 (N.D. Cal. 2003); Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 554 (N.D. Ga. 2001)). Defendants also urge the Court to look outside of the Sixth Circuit for support for their position, citing Equal Employment Opportunity Comm'n v. Sheffield Fin., LLC, No. 1:06CV00889, 2007 WL 1726560, at *4 (M.D.N.C. June 13, 2007) (ordering discovery of mental health records over objections that the damages sought were only of the garden variety type where the plaintiff sought damages for “past and future emotional distress, humiliation, anxiety, inconvenience, and loss of enjoyment of life”); Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131, 136 (E.D. Pa. 2001) (holding that the plaintiffs waived the psychotherapist-patient privilege by contending that they “suffered significant emotional distress” and had received “treatment for ‘mental and emotional distress caused by [the plaintiffs’] termination from employment' ”). These cases are distinguishable, as the Parent Plaintiffs here have not alleged future or significant emotional distress and have not referenced receiving mental health treatment as a result of Defendants' actions. Furthermore, these cases were considered by the court in Kubik and incorporated as part of the “criteria [that] have been distilled into [the] five-factor test” above. Kubik at *4. In sum, the five-factor test articulated by the Kubik court provides the proper framework for resolving the issue at hand. Applying this test, the undesigned concludes that the Parent Plaintiffs have not asserted a cause of action for intentional or negligent infliction of emotional distress; have not alleged a specific mental or psychiatric injury or disorder; have not claimed unusually severe emotional distress; have not said they would proffer expert testimony to support a claim of emotional distress; and have not conceded that their mental condition is in controversy. Therefore, their alleged damages are garden-variety. *4 Under Kubik and similar authority discussed above, Defendants are not entitled to mental health information and records from the Parent Plaintiffs. Accordingly, their motion to compel will be denied. V. Conclusion For the reasons stated above, Defendants' motion to compel, (ECF No. 32), is DENIED. SO ORDERED. Detroit, Michigan Footnotes [1] The plaintiff only presented medical records in order to argue at a later date that they should be excluded, via a motion in limine. [2] The Boone court relied upon case law from this District as well as the Eastern District of New York and the Southern District of Florida to reach this conclusion.