Snipes v. Wilkie

Background

Allison Snipes brought a Title VII employment-discrimination case against the United States and Robert Wilkie, the Secretary of the United States Department of Veterans Affairs. She alleged that her former supervisor discriminated against her after learning about her romantic relationship and ordered her to disclose intimate details to her parents. Her third amended complaint asserted claims for sex discrimination, religious discrimination, retaliation, hostile work environment, invasion of privacy, and intentional infliction of emotional distress.

Snipes sought emotional-distress damages for each claim and stated that she was seeking $1 million in mental and emotional distress damages. On April 2, 2020, she dismissed her intentional-infliction-of-emotional-distress claim without prejudice. Five causes of action remained.

Discovery dispute

Snipes produced redacted treatment notes from her therapist, Zora Kolkey. She said the notes included discussions of the litigation, statements and strategy of her attorneys, and communications unrelated to the claims for which she asserted privacy rights. The government asked the court to compel production of complete, unredacted notes. It argued that Snipes had waived the psychotherapist-patient privilege and had also waived attorney-client privilege by disclosing attorney communications to a third party.

Snipes did not dispute that the notes were relevant. The court agreed that they could help determine the cause and severity of her emotional distress, including whether other sources contributed to it. Because the case included federal Title VII claims and state-law claims, and the notes were relevant to damages under both, the court applied federal privilege law.

Court’s analysis

The federal psychotherapist-patient privilege protects confidential communications between a licensed psychotherapist and a patient during diagnosis or treatment. A patient may waive the privilege, but the court explained that waiver requires the patient to affirmatively rely on communications with the psychotherapist to support the claim.

The court found no waiver here. Snipes had dismissed her intentional-infliction-of-emotional-distress claim, represented that she would not rely on the treatment notes to establish her emotional-distress damages, and stated that she would not present expert testimony on that subject. The court held that these circumstances were sufficient to show that she had not waived the privilege.

The court acknowledged that Snipes still sought emotional-distress damages on each of her five remaining claims. It nevertheless found that the government had other ways to test those allegations. The court noted that it had previously granted the government’s request for an independent mental examination, and that the government could question Snipes about other life stressors, examine witnesses with relevant knowledge, and present other evidence challenging whether her distress was exaggerated or false.

Because there was no waiver of the psychotherapist-patient privilege, Snipes was not required to produce unredacted treatment notes. The court therefore did not address the parties’ arguments about attorney-client privilege.

Disposition

The court denied the government’s motion to compel Snipes to produce unredacted copies of Zora Kolkey’s treatment notes.