in her sexual discrimination complaint a claim for intentional infliction of emotional distress).
Even in non-sexual discrimination cases, there is considerable dissention among the courts as to whether a plaintiff puts his or her mental condition in controversy by alleging emotional distress. Compare Lowe v. Philadelphia Newspapers Inc., 101 F.R.D. 296, 298-99 (E.D. Pa. 1983) (defense entitled to psychiatric examination of plaintiff in racial discrimination case who placed her mental state into question by seeking compensatory and punitive damages for severe physical and emotional distress); Brandenberg v. El Al Israel Airlines, 79 F.R.D. 543, 546 (S.D.N.Y. 1978) (Haight, J.) (psychiatric examination of plaintiff appropriate under Rule 35(a) in tort action where plaintiff seeking recovery of damages for mental and psychiatric injuries) with, Sabree v. United Brotherhood of Carpenters & Joiners, Local No. 33, 126 F.R.D. 422, 426 (D. Mass. 1989) (plaintiff in racial discrimination suit did not place mental condition in issue by "garden-variety claim of emotional distress" and mental examination not warranted); Hodges v. Keane, 145 F.R.D. 332, 334 (S.D.N.Y. 1993) (Sotomayor, J.) (in § 1983 case in which plaintiff does not assert ongoing pain and suffering, allowing Rule 35(a) order would open the floodgates to requests for mental examinations whenever a plaintiff alleged past pain and suffering).
While there seems to be no hard and fast rule that can explain these different results, most cases where mental examinations have been allowed have either involved a separate tort claim for emotional distress, Everly, 1991 U.S. Dist. LEXIS 1255 at *2, Brandenberg, 79 F.R.D. at 546, or an allegation of ongoing severe mental injury, Lowe, 101 F.R.D. at 298-99. Neither situation is present in the instant case.
Plaintiffs claim that their abusive working conditions caused them mental suffering and assert that they are not alleging a separate tort claim for emotional distress. Therefore, as the court accepts plaintiffs' denial of the existence of a separate tort claim, that basis for granting the Rule 35(a) order does not exist.
Moreover, though plaintiffs admit to having undergone psychological counseling, they do not claim that their mental injury is ongoing, nor that they ever suffered from a psychiatric disorder.
In fact, had plaintiffs asserted the existence of an ongoing mental illness, there might have been a sufficient basis to allow defendants' request on the grounds that plaintiffs' mental condition was in controversy. See, e.g., Hodges, 145 F.R.D. at 334; Vinson v. Superior Court, 43 Cal. 3d 833, 840, 239 Cal. Rptr. 292, 740 P.2d 404 (1987). However, because plaintiffs allege past, not present pain and suffering, that basis for granting a Rule 35(a) order too does not exist.
Therefore, because there is no adequate basis to support a Rule 35(a), F.R.Civ.P., order requiring mental examinations of plaintiffs, and because the decision to compel a such an order rests within the court's discretion, see Coca-Cola Bottling Co. v. Negron Torres, 255 F.2d 149, 153 (1st Cir. 1958) (a district court may deny a Rule 35(a) motion where there is no allegation of ongoing mental injury), defendants' request is denied.
Defendants also contend that they are entitled to ask plaintiffs and their therapists about plaintiffs' psychological histories under Rule 26(b), F.R.Civ.P., and to obtain their medical records since such information is necessary and relevant to defendants' ability to defend themselves against plaintiffs' allegations. Plaintiffs, however, request that the court issue a protective order, presumably pursuant to Rule 26(c), F.R.Civ.P., to limit the scope and extent of defendants' inquiries to matters concerning plaintiffs' psychological well-being directly related to their employment. They argue that the far-reaching inquiries into their personal histories requested by defendants is an invasion of privacy and would discourage them and other plaintiffs from filing actions for sexual discrimination.
Rule 26(b), F.R.Civ.P., allows parties to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . ." Courts have construed this language to permit discovery "where there is any possibility that the information sought may be relevant" to the litigation. Mallinckrodt Chemical Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 353 (S.D.N.Y. 1973) (Edelstein, J.), quoting C. Wright, Law of Federal Court § 81 at 359 n. 47 (2d Ed. 1970). However in some circumstances, the Rule permits a court to restrict discovery of relevant material upon a showing of good cause by the party seeking relief in order to protect "a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Rule 26(c), F.R.Civ.P. In such cases, the burden of persuasion is on the party seeking the protective order, and broad allegations of harm unsubstantiated by specific examples do not satisfy the Rule 26(c) test. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3rd Cir. 1986), cert. denied, 484 U.S. 976 (1987).
Although having to answer questions about their personal histories is to some extent an intrusion in their privacy, and may in fact inhibit some plaintiffs from proceeding with their claims, such an inquiry is warranted since plaintiffs are seeking compensation for their mental anguish.
Lowe, 101 F.R.D. at 298. See also Davis v. Ross, 107 F.R.D. 326, 329 (S.D.N.Y. 1985) (Carter, J.) Moreover, since plaintiffs seek to prove that they have suffered emotional distress as a result of the sexual harassment through their testimony and the testimony of their therapists, defense counsel has a right to inquire into plaintiffs' pasts for the purpose of showing that their emotional distress was caused at least in part by events and circumstances that were not job related. Lowe, 101 F.R.D. at 298. Indeed, as far as the testimony of their therapists is concerned, defendants must be allowed to inquire into all relevant information upon which the therapists' opinions is based, not necessarily only information directly related to their employment. Mitchell v. Hutchings, 116 F.R.D. 481, 485 (D. Utah 1987).
Nevertheless, although the defendants will be permitted to inquire into plaintiffs' personal histories, it must be emphasized that defendants may not engage in a fishing expedition by inquiring into matters totally irrelevant to the issue of emotional distress.
In other words, the scope of the inquiry must be limited to whether, and to what extent, the alleged harassment caused plaintiffs to suffer emotional harm.
Defendants' request to strike plaintiffs' demand for a jury trial and dismiss their claims for compensatory and punitive damages as to their Title VII claims is granted. Defendants' request to dismiss plaintiffs' pendent state claims is denied. Defendants' request under Rule 35(a), F.R.Civ.P., for mental examinations of plaintiffs is also denied. However, defendants will be permitted to question plaintiffs and their therapists about plaintiffs' psychological histories and conduct related discovery as long as the inquiry is relevant to plaintiffs' alleged mental anguish.
IT IS SO ORDERED.
Dated: New York, New York
February 3, 1994
Robert L. Carter