Opinion
No.: 4:05-CV-2049.
May 21, 2007
MEMORANDUM AND ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
The Court is in receipt of a letter, dated May 14, 2007, and authored by counsel for Plaintiff John Hancock ("Plaintiff"), Kathryn V. Chandless ("Ms. Chandless"). Therein, Ms. Chandless indicates that the letter is submitted on behalf of both her and counsel for Defendant Penn State University ("Defendant"), Katherine M. Allen ("Ms. Allen"). In the letter, counsel request that this Court rule on a discovery dispute without the parties submitting a formal motion.
After review of the letter and attached materials, we will accept counsels' invitation to rule based thereon. Indeed, although we typically prefer to issue rulings following the filing of formal motions, our review of the materials at issue confirms that under these circumstances, the suggested manner of approaching this problem is commendable. Thus, in the interest of time, we will accept counsels' entreaties that we issue a ruling on the instant dispute based upon the materials that have been submitted.
DISCUSSION :
Having reviewed all of the materials presented to us, namely, the redacted and un-redacted notes of psychologist Dr. David A. Macdonald, as well as the privilege log created by Plaintiff's counsel, we note that part of the reason the parties, and now this Court, are faced with this conundrum is that Plaintiff and his wife, Lu Vanderlin ("Ms. Vanderlin"), sought joint psychological treatment. Compounding that problem is the fact that Ms. Vanderlin and Plaintiff also apparently went to Dr. Macdonald for individual counseling, and that the notes from their individual sessions with Dr. Macdonald are commingled with the notes from the couple's joint sessions.
Despite the fact that the text of Dr. Macdonald's notes was sometimes unintelligible, we were able to easily ascertain that the marking "1:2" represented joint sessions, and that "1:1" represented individual sessions. Thus, our resolution of the disputed passages was guided initially by whether the session at issue involved both Plaintiff and Ms. Vanderlin, or one of them individually.
For all those sessions identified as "1:2," and, thus, involving the couple, we generally concluded that the redacted information is discoverable because nature of the notes made it too difficult to discern who spoke the information noted, and as such, we could not be sure that it was not said by Plaintiff. Thus, as related to these sessions, we thought it best to err on the side of allowing discovery of this information, which can always be examined for admissibility at a later time. However, one exception to the aforementioned general rule was applied: clear justification for continued redaction, i.e. attorney-client privilege or Ms. Vanderlin's sensitive medical information.
On the other hand, for those sessions identified as "1:1," and, thus, involving only Ms. Vanderlin or Plaintiff, our task was easier. Plaintiff's sessions were generally considered discoverable, unless the aforementioned special justifications for redaction applied. On the other hand, Ms. Vanderlin's sessions were generally considered undiscoverable because her husband's filing of the instant suit, and deposition of Ms. Vanderlin as a result thereof, is not sufficient to waive this non-party's doctor-patient privilege.
With that in mind and with reference to the privilege log submitted by Plaintiff, we issue the following Order.
NOW, THEREFORE, IT IS ORDERED THAT:
1. The discovery dispute outlined in the letter dated May 14, 2007 is RESOLVED in the manner outlined in the Appendix attached hereto.APPENDIX Bates No. Date Resolution Rationale
If Plaintiff requests reconsideration of any of our rulings, she shall provide an interpreted and transcribed copy of the note(s) at issue.