The opinion of the court was delivered by: Go, United States Magistrate Judge.
Plaintiff Gilda Tesser brings this action pursuant to various
federal, state and local laws claiming discrimination in
employment and retaliation. Her husband, Bruce Kavitsky, has
moved to quash a subpoena duces tecum served upon Dr. Peritz
Levinson, Mr. Kavitsky's former psychiatrist, for disclosure of
facts concerning plaintiff contained in Dr. Levinson's treatment
notes for Mr. Kavitsky. Since the claims in this action have
been the subject of decisions on two motions to dismiss as well
as numerous discovery rulings, only the facts pertinent to this
motion are recounted herein.
Mr. Kavitsky underwent a course of psychotherapy with Dr.
Levinson from the summer of 1992 until 1996. Affidavit of Bruce
Kavitsky dated January 25, 2001 ("Kavitsky Aff.") at 3, 4, ¶¶ 5,
11. Mr. Kavitsky testified in his deposition that around late
July, 1992, he observed his wife "showing signs of depression"
and consulted with Dr. Levinson on how he "could help her to
deal with it." Sept. 20, 2000 Deposition of Bruce Kavitsky
("Kavitsky Dep."), attached as Exhibit B to Declaration of
Assistant Corporation Counsel Donald C. Sullivan ("Sullivan
Decl."), at 491-92. On September 9, 1992, Mr. Kavitsky and his
wife decided she should seek professional help due to "severe
emotional distress" after an incident involving defendant
Michael Miller the day before. Kavitsky Aff. at 4, ¶¶ 9-10.
Mr. Kavitsky called Dr. Levinson and arranged for an
appointment for his wife. Kavitsky Dep. at 499-500. Dr. Levinson
met with plaintiff once and referred her for admission into New
York Hospital. Kavitsky Aff. at 4, ¶ 10.
Mr. Kavitsky later received a request from an employee of the
defendant Board of Education for a "line-of-duty injury" letter
with respect to his wife's claimed disability. Kavitsky Dep. at
503-04. In response to plaintiffs request for such a letter, Dr.
Levinson prepared a letter dated October 13, 1992 ("October
Letter") addressed to the Board. Kavitsky Aff. at 4, ¶ 10. Dr.
Levinson stated in his letter that plaintiff had "trauma and
severe anxiety brought about . . . by her employer [which]
reached a disabling condition. . . ." See Exh. E attached to
Sullivan Decl. Dr. Levinson also noted in the letter that he
interviewed plaintiff on September 9, 1992 and "ha[s] heard from
her spouse on a regular basis about her situation." Id.
Dr. Levinson apparently took no notes of his consultation with
Ms. Tesser but testified that he reviewed his treatment notes of
Mr. Kavitsky prior to a deposition held on August 2, 1999.
August 2, 1999 Deposition of Dr. Peritz Levinson ("Levinson
Dep."), attached as Ex. C to Sullivan Decl., at 9. When
plaintiffs counsel objected to defendants' demand for a copy of
the notes, the deposition continued. Id. Over a year later at
the continuation of his deposition, Dr. Levinson, who attended
that further deposition only after being ordered to do so by the
Court, had not reviewed his notes, and had little recollection
of the pertinent facts. See, e.g., Dec. 2, 2000 Deposition of
Peritz Levinson, attached as Exhibit C to Sullivan Decl., at 14,
16, 22, 26-27, 30-32. Defendants renewed their request for Dr.
Levinson's notes at a court conference on December 7, 2000. The
Court authorized service of a subpoena for treatment notes
limited to facts pertaining to Ms. Tesser's condition for the
period from March 8, 1992 (six months before the consultation)
through October 13, 1992.
Mr. Kavitsky objects to the subpoena on grounds that the
information sought is protected by the psychotherapist-patient
privilege and not relevant, and that defendants are not entitled
to disclosure due to their "outrageous conduct" during the
proceedings in this case.
In Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135
L.Ed.2d 337 (1996), the Supreme Court recognized a federal
common law privilege*fn1 that protects
psychotherapist-patient communications. Although declining to
"delineate [the] full contours" of the psychotherapist
privilege, 518 U.S. at 19, 116 S.Ct. 1923, the Jaffee Court
broadly described the privilege as protecting "confidential
communications between a licensed psychotherapist and her
patients in the course of diagnosis or treatment." 518 U.S. at
15, 19, 116 S.Ct. 1923.*fn2 Finding that effective
psychotherapy "depends upon an atmosphere of confidence and
trust in which the patient is willing to make a frank and
complete disclosure of facts, emotions, memories, and fears,"
the Court concluded that "protecting confidential communications
between a psychotherapist and her patient outweigh[s] the need
for probative evidence." Id. at 9-10, 116 S.Ct. 1923.
In reaching this holding, the Court found significant the
unanimity of opinion among state courts and legislatures in
recognizing a psychotherapist privilege and the fact that such a
privilege was one of the nine privileges recommended by the
Judicial Conference Advisory Committee to be incorporated in the
proposed Federal Rules of Evidence. Jaffee, 518 U.S. at 10,
14-15, 116 S.Ct. 1923. As the Court emphasized, the acceptance
of such a privilege stems from "`wide agreement that
confidentiality is a sine qua non for successful psychiatric
treatment.'" Id. at 10-11, 116 S.Ct. 1923 (quoting Advisory
Committee's Notes to Rule 504 to the Proposed Rules of Evidence
for United States Courts and Magistrates, 56 F.R.D. 183, 242
(1972) (the "proposed rule")).
As described in Jaffee, a party asserting the privilege must
establish that (1) confidential communications were made (2)
between a licensed psychotherapist and her patient (3) in the
course of diagnosis or treatment. See In re Grand Jury
Proceedings (Violette), 183 F.3d 71, 73 (1st Cir. 1999). As a
general rule, the burden rests upon the party claiming a
privilege. Cf. In re Grand Jury Proceedings, 219 F.3d 175, 182
(2nd Cir. 2000) (burden of establishing the existence of an
attorney-client privilege rests with the party asserting it).
However, this Court is mindful of the fact that Mr. Kavitsky is
not a party, albeit clearly not a disinterested person to this
litigation. Although his non-party status does not result in a
tempering of his burden to establish the existence of the
privilege, it is a consideration that this Court weighs
seriously in determining the scope of the privilege and
considering the relevance of the information sought.
In the present circumstances, there is no question that Mr.
Kavitsky was receiving treatment from a licensed
psychotherapist, Dr. Levinson, and that his wife, the plaintiff,
has waived her claim of privilege with
regard to her consultation with Dr. Levinson (as well as with
other psychiatrists), as she has conceded. Rather, the issues
here are whether the communications reflected in the notes are
confidential and made in the course of Dr. Levinson's treatment
of Mr. Kavitsky. These issues are of particular significance
because Dr. Levinson kept no notes of his interview with Ms.
Tesser. Moreover, as reflected Dr. Levinson's letter dated
October 13, 1992 which was later submitted to the defendant
Board on Ms. Tesser's behalf, Dr. Levinson based his opinions
expressed in that letter on information obtained from Mr.
Kavitsky "on a regular basis about her situation." See Exh. E
to Sullivan Decl. Further, Dr. Levinson apparently no longer has
a recollection of the factual events surrounding the preparation
of the letter and the details of his consultation.
Thus, because only confidential communications made to
psychotherapists may be privileged, this Court must first
determine whether the communications at issue are confidential.
Proposed Rule 504 of the Federal Rule of Evidence defines a
communication to a psychotherapist as "confidential" if it is
"not intended to be disclosed to third persons other than those
present to further the interest of the patient in the
consultation, examination, or interview, or person reasonably
necessary for the transmission of the communication, or persons
who are participating in the diagnosis and treatment under the
direction of the psychotherapist." Proposed Rule 504(a)(3),
56 F.R.D. 183, 240-41 (1972).*fn3
Consonant with this definition, courts considering whether
communications between a patient and psychotherapist are
confidential have focused on the expectation of disclosure.
These courts have ordinarily addressed this issue in the context
of consultations made in the course of employment and have held
that communications with a psychotherapist during consultations
required as a condition of employment are not privileged because
there is no expectation of privacy. See, e.g., Phelps v. Coy,
194 F.R.D. 606 (S.D.Ohio 2000) (no privilege where there was no
expectation of confidentiality because party knew therapist's
evaluations would be submitted to an employer); Scott v.
Edinburg, 101 F. Supp.2d 1017 (N.D.Ill. 2000) (treating
knowledge that communications would be shared as others as a
waiver); Barrett v. Vojtas, 182 F.R.D. 177 (W.D.Pa. 1998)
(communications made during counseling required by employer and
reports submitted to employer not privileged); Kamper v. Gray,
182 F.R.D. 597 (E.D.Mo. 1998) (privilege did not exist for
therapist's evaluation when it was to be submitted to employer);
see also Revelle v. Darby Borough Police Officer Trigg, 1999
WL 80283 (E.D.Pa. Feb. 2, 1999) (evaluations of non-party
officers required for
employment not privileged); D'Antoni v. Roach, 1997 WL 627601
(E.D.La. Oct 10, 1997) (police reports assessing psychological
fitness of officers based on interviews did not contain
confidential communications and were therefore not privileged);
Siegfried v. City of Easton, 146 F.R.D. 98, 101 (E.D.Pa. 1992)
(communication which patient reasonably expects to be ...