United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT COURT JUDGE.
action Plaintiffs Kimberley Medeiros and Wendy Sweeney allege
that between 1979 and 1984, Defendant Kevin Campbell sexually
abused them. Each plaintiff brings counts against Mr.
Campbell for assault (Counts I and V), battery (Counts II and
VI), intentional infliction of emotional distress (Counts III
and VII), and negligent infliction of emotional distress
(Counts IV and VIII). [ECF No. 1]. The case is now in
discovery. Currently pending is Mr. Campbell’s Motion
for a Protective Order. [ECF No. 19].
January and March 1993, Ms. Medeiros received psychological
treatment from Judith Power, Psy.D. During that time, Ms.
Medeiros attended nine sessions with Dr. Power. The pending
motion concerns the eighth session, which took place on March
5, 1993, and which was attended by not only Ms. Medeiros, but
also by co-Plaintiff Ms. Sweeney (Ms. Medeiros’ younger
sister), Defendant Mr. Campbell (Ms. Medeiros’
stepfather), and non-party Sheila Brayden (Ms.
Medeiros’ mother). Citing the psychotherapist-patient
privilege, Mr. Campbell has moved to (1) preclude Dr. Power
from testifying about or disclosing any document that sets
forth communications between Mr. Campbell and Dr. Power
during that session; (2) prohibit any person or party who
currently has possession of any of the records created in
connection with the session from using the records in any
manner in this litigation; and (3) require any party to this
litigation, or any attorney for any party to this litigation,
who has possession of such records to return the records to
Dr. Power. [ECF No. 19]. Plaintiffs opposed the motion [ECF
No. 32], and the Court held an evidentiary hearing on June 2,
2016. [ECF No. 35].
this is a diversity case, state law determines the scope of
the psychotherapist-patient privilege. Vanderbilt v. Town
of Chilmark, 174 F.R.D. 225, 226 (D. Mass. 1997)
(“[I]f state substantive law controls, as in a
diversity case, Rule 501 instructs a federal court to use the
applicable state law of privilege.”). Mass. Gen. Laws
ch. 233 § 20B establishes the psychotherapist-patient
privilege under Massachusetts state law. It provides that in
any court proceeding, “a patient shall have the
privilege of refusing to disclose, and of preventing a
witness from disclosing, any communication, wherever made,
between said patient and a psychotherapist relative to the
diagnosis or treatment of the patient’s mental or
emotional condition.” Mass. Gen. Laws ch. 233 §
20B. The privilege applies to “patients engaged with a
psychotherapist in marital therapy, family therapy, or
consultation in contemplation of such therapy.”
Id. The statute in turn defines patient as “a
person who, during the course of diagnosis or treatment,
communicates with a psychotherapist.” Id.
psychotherapist-patient privilege “gives the patient
the right to refuse to disclose and to prevent another
witness from disclosing any communication between patient and
psychotherapist concerning diagnosis or treatment of the
patient’s mental condition.” Commonwealth v.
Clancy, 402 Mass. 664, 667 (1988). “[T]he purpose
of the statute is to protect justifiable expectations of
confidentiality that people who seek psychotherapeutic help
have a right to expect.” Id.; see also
J.D. v. Williston Northampton Sch., 826 F.Supp.2d 328,
330 (D. Mass. 2011) (“[R]ooted in the imperative need
for confidence and trust between the patient and the
psychotherapist, the privilege is designed to avoid deterring
people from seeking treatment for fear that they will suffer
a disadvantage in later litigation.”) (quotation marks
omitted); Commonwealth v. Kobrin, 395 Mass. 284, 290
(1985) (“[T]he Legislature in enacting G.L. c. 233,
§ 20B, acknowledged the justifiable expectations of
confidentiality that most individuals seeking
psychotherapeutic treatment harbor.”) (quotation marks
the parties dispute whether Mr. Campbell was a
“patient” during the March 5, 1993 session, and
therefore whether the psychotherapist-patient privilege
applies to him. Plaintiffs argue that Ms. Medeiros was the
only patient at the session and that the other three
attendees were mere “participants” that are not
entitled to invoke the privilege. Mr. Campbell counters that
the March 5, 1993 session was a family therapy session in
which all four attendees were patients.
parties have submitted under seal a copy of Dr. Power’s
treatment notes for Ms. Medeiros. [ECF No. 28]. The March 5,
1993 session is titled “Family Session, ” and Dr.
Power’s notes include observations about each of the
four attendees. [ECF No. 28 at 6]. Her notes for the next
session, which only Ms. Medeiros attended, state that
“[Ms. Medeiros] feels things got better in family after
family therapy session.” Id.
evidentiary hearing, Dr. Power testified that she only
considered Ms. Medeiros to be her client, and that she did
not intend to treat Mr. Campbell at the March 5 session. At
previous sessions, according to Dr. Power, Ms. Medeiros had
expressed concerns about her family, and the family had been
invited so that Dr. Power could gain a better understanding
of how the family operated, for purposes of treating Ms.
Medeiros and not the family. Dr. Power testified that she did
not remember how the session began or ended, but that it is
not her practice to address privilege or confidentiality
before beginning a session.
Ms. Medeiros and Mr. Campbell submitted affidavits in
connection with the pending motion. In her affidavit, Ms.
Medeiros testified that she did not understand the March 5,
1993 therapy session to be for the treatment of anyone other
than herself. [ECF No. 29-2]. In his affidavit, Mr. Campbell
testified that “at no time did Dr. Powers or anyone at
her office tell me I was not part of the family therapy or
that my participation was not privileged from disclosure on
any basis or that there were limitations on that
privilege.” [ECF No. 20-1 at 2].
session at issue took place over twenty year ago, and it is
therefore difficult to get a complete picture of what took
place. Although Dr. Power states that she only considered Ms.
Medeiros to be her client, her notes call it a “family
session” and “family therapy session.” [ECF
No. 28 at 6]. Furthermore, because it was not Dr.
Power’s practice to speak about privilege at the start
of a session, and no one recalls any such statement, it is
likely that the session was not preceded by any statement
delineating the limits of confidentiality or privilege.
purpose of the psychotherapist-patient privilege is to
protect the “justifiable expectations of
confidentiality” of people seeking psychotherapeutic
help, and based on the foregoing, Mr. Campbell could have
justifiably expected that the statements he made to Dr. Power
at the March 5, 1993 session were privileged. There can be
situations in which family members attending a therapy
session are mere participants whose communications are not
privileged. Here, however, given Dr. Power’s
contemporaneous treatment notes, as well as the lack of any
statement regarding confidentiality or privilege, the Court
finds that Mr. Campbell was a patient participating in family
therapy and that he may invoke the privilege. Dr. Power and
all other witnesses are prohibited from disclosing or
testifying about any communications made between Dr. Power
and Mr. Campbell at the March 5, 1993 session. The Court will
not order the return of any records, given that Dr. Power
kept notes for all of the sessions (eight of nine Mr.
Campbell did not attend) in one document. Moreover, the March
5, 1993 session notes include communications not involving
Mr. Campbell, which are therefore not covered by Mr.
Campbell’s assertion of privilege.