Opinion
Civil Action No. 01-10119-PBS
February 19, 2002
ORDER
Pursuant to Rules 7.1(d) and (e) of the Local Rules of this Court [effective September 1, 1990], and upon review of the relevant pleadings, the Motion to Compel the Deposition Testimony of Pamela Bradford (# 22) is allowed for the following reasons:
1. This action is one under the Americans with Disabilities Act and the Family Medical Leave Act with a sprinkling of state law claims. Counsel for plaintiff Paul Bradford has taken the position that defendants are not entitled to depose plaintiff's wife, Pamela Bradford, about conversations she may or may not have had with plaintiff's treating psychotherapist, Dr. Michael Dvorkin. Plaintiff's position is based on a claim of psychotherapist-patient privilege owned by Pamela Bradford — not the plaintiff Paul Bradford.
Plaintiff, bringing claims under the Americans with Disabilities Act and the Family Medical Leave Act, has clearly put his mental condition into issue, and he does not contend to the contrary.
2. From all that has been filed in connection with the motion to compel, it is clear that the defendants, by way of that motion, seek to compel the testimony of Pamela Bradford, the wife of the plaintiff, vis a vis conversations between her and Dr. Dvorkin on February 5, 1999, relating to the condition of the plaintiff — and not Pamela Bradford.
3. Also, from all that has been filed in connection with the motion to compel, it is clear that, although Dr. Dvorkin was a treating psychotherapist for Pamela Bradford, the appearance of plaintiff and Pamela Bradford on February 5, 1999, was not for the treatment of Pamela Bradford, but rather for the treatment of plaintiff.
4. In these circumstances, defendant has not made out a valid showing of a psychotherapist-patient privilege owned by Pamela Bradford. Under now settled law, it is clear, as a general matter, that (Jaffee v. Redmond, 518 U.S. 1, 8 (1996)):
The common-law principles underlying the recognition of testimonial privileges can be stated simply. "`For more than three centuries it has now been recognized as a fundamental maxim that the public . . . has a right to every man's evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.'" United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950) (quoting 8 J. Wigmore, Evidence § 2192, p. 64 (3d ed. 1940)). See also United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). Exceptions from the general rule disfavoring testimonial privileges may be justified, however, by a "`public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth."' Trammel, 445 U.S., at 50, 100 S.Ct., at 912 (quoting Elkins v. United States, 364 U.S. 206, 234, 80 S.Ct. 1437, 1454, 4 L.Ed.2d 1688 (1960) (Frankfurter, J., dissenting)). (Emphasis added; footnote omitted).
Although that same Jaffee Court held that the federal common law encompassed a psychotherapist-patient privilege, plaintiff has failed to establish the existence of the privilege in the circumstances.
Inasmuch as this case is founded on federal claims, federal common law applies, notwithstanding the sprinkling of supplementary state law claims. E.g. Krolikowski v. University of Massachusetts, 150 Supp.2d 246 (D.Mass. 2001). In any event, this court cannot fairly conclude that the psychotherapist-patient privilege recognized by the courts of the commonwealth of Massachusetts differs in any significant respect from that privilege under the federal common law, as recognized in Jaffee v. Redmond, 518 U.S. 1 (1996).
Given that the "public . . . has a right to every man's evidence", it is the burden of the party asserting the privilege to show that it applies in the circumstances of a particular case. E.g. In re Grand Jury (Gregory P. Violette), 183 F.3d 71, 73 (1st Cir. 1999). To do so, the party asserting the privilege must show all of the establishment of all of the elements of the privilege, to wit: ". . . that the allegedly privileged communications were made (1) confidentially (2) between a licensed psychotherapist and her patient (3) in the course of diagnosis or treatment." (Emphasis added). Jaffee, at see also In re Grand Jury (Gregory P. Violette), supra, at 74.
In this court's view, the third element of the privilege requires a showing that the statement or statements alleged to be privileged were made to a psychotherapist in the course of diagnosis or treatment of the person asserting the privilege — not during the course of diagnosis or treatment of another. In this case, it is clear that any statements made by Pamela Bradford to Dr. Dvorkin were made during the diagnosis and treatment of the plaintiff — and not during the diagnosis and/or treatment of Pamela Dvorkin. Plaintiff has accordingly not satisfied her burden of establishing the entitlement of the privilege asserted by Pamela Bradford.
That the conversation was made to a psychotherapist ". . . in the course of diagnosis or treatment".
Even if, liberally construed, an argument could be made that statements made by anyone "confidentially" to a psychotherapist during the course of the diagnosis and/or treatment of another might fit within the contours of the psychotherapist-patient privilege as staked out by the Jaffee court and its progeny, and that clearly does not seem to be the case, it can hardly be said, in the circumstances of this particular case, that plaintiff has shown" `public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'" Trammel, 445 U.S., at 50, 100 s.ct., at 912 (quoting Elkins v.United States, 364 U.S. 206, 234, 80 S.ct. 1437, 1454, 4 L.Ed.2d 1688 (1960) (Frankfurter, J., dissenting))" warranting a departure from the otherwise established principle that the public is entitled to everyone's testimony in an effort to reach the truth. Jaffee, supra. in this case, the plaintiff, who was the person then being diagnosed or treated by Dr. Dvorkin, does not contend that the conversations relating to his diagnosis and/or treatment should be shielded from the public view. To the contrary, the plaintiff, by bringing claims under the Americans with Disabilities Act and the Family Medical Leave Act, contending that he, indeed, had a disability (bipolar disorder), has purposefully put his condition and treatment in the public domain.
5. Plaintiff has one more arrow in his quiver. He says that even if his wife, Pamela Bradford, has not established the existence of a psychotherapist-patient privilege, she has filed an affidavit saying that she does not remember the conversations which she had on the day in issue. That, however, is quite beside the point. Plaintiff's position would, if accepted, add new and unintended gloss to Rule 26 of the Federal Rules of Civil Procedure governing the taking of depositions. That Rule clearly contemplates — barring the assertion of a valid privilege — the taking of testimony of any and all as to relevant matters. Plaintiff's interpretation would read Rule 26 as granting the right of taking depositions unless the proposed deponent filed an affidavit stating that he or she did not recall the subject matter of the deposition. If that was the drafters' intent, the drafters clearly could have said so. Their failure to say so speaks volumes against plaintiff's position. It may well be — Pamela Bradford's current affidavit notwithstanding — that the stuff of cross-examination — e.g., focused questions, the use of other data to refresh one's recollection — will yield a fruitful return. And that can only be determined after the examination, and not on the basis of a self-serving affidavit.
And, for the reasons set forth above, that is not this case.
6. Based on the foregoing, defendants' Motion to Compel the Deposition Testimony of Pamela Bradford (# 22) is allowed. No costs shall be allowed.
In as much as this court concludes that the plaintiff has not established the elements of the privilege in the circumstances of this case, this court does not address the issue of the waiver of the privilege.
The file is hereby ordered returned to the Clerk.