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TESSER v. BOARD OF EDUC.

April 16, 2001

GILDA TESSER, PLAINTIFF,
V.
BOARD OF EDUCATION, ETC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Go, United States Magistrate Judge.

ORDER

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.

DISCUSSION

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.

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 ...


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