United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO COMPEL
Judith Gail Dein United States Magistrate Judge
This action arises out of two alleged assaults on the plaintiff, Mark Silvestri (“Silvestri”), which occurred in July 2011 while Silvestri was in pretrial detention at the Plymouth County Correctional Facility (“PCCF”) in Plymouth, Massachusetts. Silvestri claims that the defendants, including four corrections officers and a Captain at PCCF, either participated in, or failed to intervene in order to protect him from, the alleged assaults. He further alleges that he suffered a number of physical injuries, as well as severe emotional distress, as a result of the defendants’ actions. By his Second Amended Complaint, Silvestri has brought claims against the defendants pursuant to 42 U.S.C. § 1983 and state law, including claims for violations of his Fourteenth Amendment right to substantive due process (Counts I-III), as well as claims for assault and battery (Counts IV-V), negligence (Count VI), wanton and reckless conduct (Counts VII-IX), intentional infliction of emotional distress (Count X) and negligent infliction of emotional distress (Count XI).
The matter is presently before the court on the “Defendants’ Motion to Compel Discovery” (Docket No. 70). By their motion, the defendants are seeking an order: (i) compelling the plaintiff to respond to deposition questions regarding any mental health diagnoses and treatment that he received subsequent to the time of the alleged assaults, and (ii) compelling the production of treatment records from Silvestri’s mental health providers, including but not limited to, four different psychotherapists from whom Silvestri has obtained treatment since 2012. There is no dispute that Silvestri’s communications with his psychotherapists fall within the scope of the psychotherapist-patient privilege, as established pursuant to federal common law. Nevertheless, the defendants contend that the plaintiff has waived his right to assert a privilege over those communications by filing specific claims for emotional distress and putting his emotional condition directly at issue in the litigation. The plaintiff argues that the court should adopt a narrow approach to waiver of the psychotherapist-patient privilege. He further argues that when such an approach is applied to the circumstances of this case, no waiver can be found because Silvestri has not made, and does not intend to make, affirmative use of the privileged communications in connection with the prosecution of his claims.
After consideration of the parties’ written submissions and their oral arguments, the motion to compel is hereby ALLOWED IN PART and DENIED IN PART WITHOUT PREJUDICE. As detailed below, Silvestri has not shown that information regarding the nature of any mental health diagnoses or treatment he has received since the date of the alleged assaults falls within the scope of the psychotherapist-patient privilege. Therefore, the motion is allowed to the extent that it seeks such information. This court also finds that the narrow approach to waiver applies in this case, and that Silvestri has not waived his right to assert the privilege over communications with his mental health providers. Accordingly, to the extent the defendants are seeking treatment records from Silvestri’s mental health providers, their motion is denied. However, the denial shall be without prejudice to the defendants’ ability to renew their motion following the disclosure of experts, or at any other appropriate point in the proceedings, if it appears that the plaintiff is seeking to make affirmative use of the privileged information.
A. The Psychotherapist-Patient Privilege
Scope of the Privilege
“The Supreme Court [has] recognized the psychotherapist-patient privilege as a matter of federal common law[.]” In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 73 (1st Cir. 1999). Pursuant to the privilege, “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. (quoting Jaffee v. Redmond, 518 U.S. 1, 15, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996)). Thus, the privilege applies to “confidential communications made to licensed psychiatrists and psychologists[, ]” as well as to “confidential communications made to licensed social workers in the course of psychotherapy.” Jaffee, 518 U.S. at 15, 116 S.Ct. at 1931.
“As a general matter, a party asserting a privilege has the burden of showing that the privilege applies.” In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d at 73. Accordingly, “a party asserting the psychotherapist-patient privilege must show that the allegedly privileged communications were made (1) confidentially (2) between a licensed psychotherapist and her patient (3) in the course of diagnosis or treatment.” Id. In the instant case, there is no dispute that communications between Silvestri and his psychotherapists or other mental health providers are covered by the privilege. (See Defs.’ Mem. (Docket No. 71) at 1, 6). However, the defendants maintain that they are entitled to information pertaining to Silvestri’s mental health diagnoses and treatment, and to copies of treatment records maintained by Silvestri’s mental health providers, because the privilege has been waived. (Id. at 6). While this court finds that the first category of information is discoverable, the defendants have not shown that they are entitled to the disclosure of Silvestri’s treatment records.
Application of the Privilege
It is undisputed that the treatment records at issue reflect confidential communications between the plaintiff and his mental health providers, which were made in the course of his diagnosis or treatment. (See Defs.’ Mem. at 1, 6; Pl. Opp. Mem. (Docket No. 75) at 3). Accordingly, there is no dispute that those records fall within the scope of the psychotherapist-patient privilege. However, Silvestri has not shown that information regarding any mental health diagnoses and treatment that he may have received is similarly protected. Therefore, the defendants are entitled to the disclosure of that information.
As described above, the privilege applies to “communications” between the patient and his mental health provider that are made “in the course of diagnosis or treatment[.]” Jaffee, 518 U.S. at 15, 116 S.Ct. at 1931. Thus, the “privilege protects only the substance of communications” between the patient and his treatment provider. Howe v. Town of N. Andover, 784 F.Supp.2d 24, 34 (D. Mass. 2011). It does not apply to “facts regarding the occurrence of psychotherapy, such as the name of the psychotherapist or dates and costs of treatment[.]” Id. Nor does it protect other non-communicative information such as the nature of any diagnosis or treatment for a mental health condition. See In re Adoption of Saul, 60 Mass.App.Ct. 546, 549-53, 804 N.E.2d 363-65 (2004) (distinguishing between communicative conduct that relates to diagnosis or treatment of a mental illness, which falls within the scope of the Massachusetts psychotherapist-patient privilege, from the diagnosis itself, which is not protected). In the instant case, Silvestri has failed to establish that the disclosure of any mental health diagnoses, or the nature of any mental health treatment he has received since the time of the alleged assaults, would reveal the substance of any privileged communications. Therefore, the defendants’ motion is allowed to the extent it seeks such information. By March 2, 2016 or any other date agreed to by the parties, the defendants shall serve the plaintiff with an Interrogatory requesting any non-privileged ...