Doe v. Sarah Lawrence College

Background

Jane Doe moved under Federal Rule of Civil Procedure 26(c) for a protective order limiting disclosure of her mental-health records. The defendants opposed the motion, arguing that Doe had waived the psychotherapist-patient privilege—the protection for confidential communications made during mental-health diagnosis or treatment—by placing her mental condition at issue in the lawsuit.

Doe alleges that she was sexually assaulted by another student at Sarah Lawrence College in October 2017. She alleges that the college and individual defendants mishandled her complaint and other events, causing severe emotional harm. Her claims include Title IX claims, breach of contract, negligence, and negligent infliction of emotional distress. She seeks damages for hospitalization, future mental-health care, emotional distress, and possible lost wages and career opportunities.

The discovery order required relevant mental-health records from healthcare providers who treated or evaluated Doe from January 1, 2012, forward. Doe objected to producing records from before August 1, 2017. The court reviewed records from Dr. Alexandra Doyle, an individual therapist; Licensed Professional Counselor and Supervisor Jennifer Leister, a family therapist; and Dr. Jennifer Wheeler, Doe’s pediatrician. The court also addressed records from other providers that Doe represented had been destroyed.

Privilege and waiver

The court held that Doe had waived the psychotherapist-patient privilege by placing her mental health at issue. The court relied on her negligent-infliction-of-emotional-distress claim, her request for more than $6 million in compensatory damages, her claims concerning hospitalization and future mental-health treatment, and records she had already produced describing a history of depression, prior suicide attempts, a diagnosis of Bipolar II disorder, and a violent relationship with her father.

The court distinguished serious emotional-distress claims from “garden variety” emotional-distress claims. A garden-variety claim seeks compensation for ordinary distress associated with an injury; a serious-distress claim involves a diagnosable dysfunction or comparable injury. The court found that Doe had asserted more than a garden-variety claim. It also concluded that Doe could not disclose selected mental-health information while withholding related records that could help the defendants determine whether her claimed injuries were caused, in whole or in part, by earlier events.

Records from Dr. Doyle

The court ordered disclosure of Dr. Doyle’s treatment notes and communications prepared during Doe’s treatment or diagnosis when they were relevant to Doe’s claimed emotional distress. The records concerned family conflict, her parents’ divorce, stress, academic performance, and attention-deficit symptoms, all of which the court found could bear on the causes of the emotional harm alleged in the complaint.

The court rejected limiting production to records specifically concerning suicide attempts before August 2017. It reasoned that the records also addressed depression and poor academic performance, which could be relevant to Doe’s allegations. The court further found that the information could not adequately be obtained through other discovery methods.

The court explained that not every document held by a mental-health professional is privileged. Communications between Dr. Doyle and people outside Doe’s therapist-patient relationship, including Doe’s father or attorneys for her parents, were not protected by Doe’s privilege if they were relevant to her mental condition or possible psychological stressors. Communications from Doe’s mother to Dr. Doyle about Doe’s treatment or diagnosis also had to be disclosed. But records reflecting communications between Dr. Doyle and Doe’s mother during the mother’s own treatment or diagnosis had to be withheld because Doe could not waive a privilege belonging to her mother.

The court also ordered production of relevant payment records containing appointment dates, public records, and retainer agreements. Those materials were not treated as confidential communications protected by the psychotherapist-patient privilege.

Records from family therapist Jennifer Leister

Leister’s records included family-therapy sessions involving Doe and other family members, sometimes without Doe present. The court recognized that disclosure could affect the privacy of nonparties who had not waived their own privacy interests. It nevertheless found the records potentially relevant to family conflict, earlier emotional distress, and the causes of Doe’s claimed injuries.

To limit the disclosure, the court ordered production of Leister’s therapy communications only when they both mentioned Doe directly and indicated that Doe was present at the session. Records concerning sessions attended only by other family members did not have to be disclosed, even if they mentioned Doe. Relevant billing information, release forms, and retainer agreements also had to be produced.

Records from Dr. Wheeler and destroyed records

Most of Dr. Wheeler’s records concerned physical health and were not relevant because Doe had not placed physical ailments or physical injuries at issue. Those records, including records of childhood illnesses and vaccinations, could be withheld. Records from Dr. Wheeler that mentioned Doe’s mental-health status or treatment—including diagnoses, therapy with Dr. Doyle, or psychiatric medications—had to be produced because they were relevant to Doe’s claimed emotional distress.

Doe represented that records from Dr. Clung and Dr. Threats no longer existed. The court directed Doe to provide the defendants with sworn certifications from those providers stating that the records no longer existed and when they were destroyed.

Ruling and confidentiality protections

Judge Judith C. McCarthy granted in part and denied in part Doe’s motion for a protective order. She directed Doe and Leister to review and produce the records subject to discovery and to provide privilege logs for withheld documents by February 3, 2021. Personal identifying information, including birth dates, credit-card information, home addresses, and Social Security numbers, had to be redacted.

The court ordered that produced records could not be disclosed publicly, could be used only for purposes of the pending litigation, and had to be returned to Doe or the original custodian or destroyed after the case ended. The records were also covered by the parties’ existing confidentiality agreement and protective order. The court terminated the pending motion.