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 disclosed
to a third party not involved in the patient's treatment not
protected by the psychologist-patient privilege). But see
Williams v. District of Columbia, 1997 WL 224921 (D.C. Apr. 25,
1997) (privilege upheld where there was an expectation of
privacy and no confidences revealed by psychotherapist who
merely opined whether officer fit for duty); Caver v. City of
Trenton, 192 F.R.D. 154 (N.J. 2000) (same).
The limited record before the Court contains evidence to
support Mr. Kavitsky's claim that he had every expectation that
his statements would be kept private on many, if not all, of the
occasions he discussed his wife's condition with Dr. Levinson.
However, the expectation of confidentiality is not dispositive
of whether a communication between a patient and psychotherapist
is privileged — Jaffee requires that the communications also be
made "in the course of treatment." 518 U.S. at 15, 116 S.Ct.
The Court in Jaffee addressed the need for confidentiality
in the context of treatment of the patient making the statements
about himself and his condition. Besides noting the public
interest in "facilitating the provision of appropriate treatment
for individuals suffering the effects of mental or emotional
problems," the Court specifically referred to the need to
insulate statements necessary for treatment made by patients
Without a privilege, most of the desirable evidence
to which litigants such as petitioner seek access —
for example, admissions against interest by a party —
is unlikely to come into being.
See Jaffee, 518 U.S. at 14-15, 116 S.Ct. 1923.
The proposed rule more explicitly limits the psychotherapist
privilege to communications made for the patient's treatment or
for others being treated by the psychotherapist than this
language in Jaffee. The rule proposed provided that:
A patient has a privilege to refuse to disclose and
to prevent any other person from disclosing
confidential communications, made for the purposes of
diagnosis or treatment of his mental or emotional
condition, including drug addiction, among himself,
his psychotherapist . . . or persons who are
participating in the diagnosis or treatment under the
direction of the psychotherapist, including members
of the patient's family.
Proposed Rule of Evidence 504(b), 56 F.R.D. at 241. In other
words, whether the privilege attaches requires consideration of
the nature, timing and the purpose of the communication.