Summary
holding plaintiff with alleged disability of attention deficit hyperactivity disorder and co-existing related emotional conditions placed mental health at issue in case by alleging disability discrimination under the ADA and intentional and negligent infliction of emotional distress
Summary of this case from Breunlin v. Village of Oak ParkOpinion
Case No. 00 C 5200
August 9, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Harrison Metzger ("Metzger"), a minor, by Susan E. Anderson ("Anderson"), his mother and natural guardian, brought this case against Francis W. Parker School, et al. ("Parker") alleging disability discrimination in violation the Americans with Disabilities Act (the "ADA"), see 42 U.S.C. § 12101 et seq. and Illinois law, and related state law claims including intentional and negligent infliction of emotional distress. Before the court are several discovery motions.
DISCUSSION Motion to Compel Production of Donald Metzger's Notes
Parker seeks to compel production of all written documents identified in Plaintiff's response to discovery, specifically notes authored by Donald Metzger labeled as attorney work product. Parker argues that Donald Metzger is an important factual witness in this case who will testify at trial. Parker asserts that it will be prejudiced in its ability to prepare and examine Donald Metzger if it does not have his notes. Further, Parker argues that at the time that Donald Metzger created the documents he was acting as Metzger's father, not as an attorney, as evidenced by the use of his personal letterhead as opposed to the legal letterhead of his law office.
In response, Metzger argues that the notes were created in anticipation of litigation and are thus protected by the attorney work product privilege. Metzger asserts that all of the documents were created after the school counselor had told Susan Anderson, Metzger's mother, in September 1999 that the school could not meet his needs and he needed to be transitioned out of the school. Metzger's parents disputed those conclusions, and thus started down the road to litigation. Further, Metzger argues that the privilege applies only to the documents themselves and does not shield the information contained in the documents. He argues that Parker already has all of the information in the documents, through deposition testimony and interrogatory responses as well as through the other people that were present at the meetings.
The work product privilege is "intended to prevent a litigant from taking a free ride on the research and thinking of his opponent's lawyer and to avoid the resulting deterrent to a lawyer's committing his thoughts to paper." United States v. Frederick, 182 F.3d 496, 500 (7th Cir. 1999). Thus, if a party demonstrates that documents that would otherwise be discoverable were prepared in anticipation of litigation, the documents are considered work product and become subject to a qualified privilege. Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996). The qualified privilege may be overcome if the party seeking discovery demonstrates both that it has a substantial need for the documents and that it would suffer undue hardship if required to obtain the information in some other way. Id. When determining whether a document was prepared in anticipation of litigation, courts look to whether "in light of the factual context the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Id. at 976-77. Further, the rule states that "in ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representatives of a party concerning the litigation." FED. R. Civ. P. 26(b)(3).
Here, Parker argues that will be prejudiced if Donald Metzger can testify about the meetings and Parker does not have his notes. While Metzger may have been contemplating litigation when he attended the meetings and took notes, he also must have known that he would be an important witness in any ensuing litigation. While Parker can depose Anderson and any of the other people that were present at the meetings to obtain information, it is highly prejudicial to Parker if Donald Metzger testifies at trial about those meetings and Parker does not have his notes. Therefore, Parker's motion to compel the production of Donald Metzger's notes is granted.
Motion for Discovery of Treaters
Parker moves for leave to subpoena Plaintiff's psychiatric records and to depose his psychiatric treaters. Parker seeks to subpoena the psychiatric records of Glen Oaks Therapeutic School, Glen Oaks Hospital Department of Psychiatry, Dr. Sydney Eisen, Children's Learning Center at Grant Hospital, Loyola University Department of Psychology, Center for Pediatric Sleep Medical Center of Grant Hospital, Woodhall School, Dr. Marc Weissbluth and the Mayo Clinic. Further, Parker seeks to depose Dr. Sydney Eisen, Dr. John Glennon, Dr. Cherie Laaperi, Dr. Stephen Sheldon, Dr. Warren Rosen, Dr. Marvin Schwarz, Dr. Marc Weissbluth, Karen Wills, and appropriate representatives of Loyola and Woodhall School. Parker argues that the issues involved in this case are imbedded in Metzger's psychiatric/psychological disability claim, and the probative value of the psychological records far outweighs any prejudice.
Metzger is a 15-year-old student with Attention Deficit Hyperactivity Disorder ("ADHD") and co-existing related emotional conditions. His primary claim in his complaint is disability discriminations under the ADA. He has no objection to discovery proceedings against 10 of the 15 treaters that Parker named in its motion because nine of the treaters have had no contact with Metzger and the tenth treater prepared a sleep study evaluation. Metzger does object to discovery of Drs. Eisen, Laaperi, Weissbluth and Wills and the Woodhall School because the information sought has no probative value in this case, is totally irrelevant to the disability discrimination claim, and is protected from disclosure by the applicable psychotherapist-patient privilege.
The Supreme Court has recognized a federal common law psychotherapist-patient privilege protecting confidential communications between a patient and a licensed psychotherapist during diagnosis or treatment. See Jaffee v. Redmond, 518 U.S. 1, 15-16, 116 S.Ct. 1923 (1996). Like other privileges, the psychotherapist-patient privilege can be waived. Id. at 15, n. 14. The Seventh Circuit has held that one way for a privilege holder to waive the attorney client privilege is by affirmatively putting the privileged communications directly at issue in the lawsuit. See Garcia v. Zenith Elec. Corp., 58 F.3d 1171, 1175 n. 1 (7th Cir. 1995). Several courts in this jurisdiction have applied this waiver rule to the psychotherapist-patient privilege. See, e.g., Allen v. Cook County Sheriff's Dept., No. 97 C 3625, 1999 WL 168466, *2 (N.D. Ill. March 17, 1999); Wynne v. Loyola University of Chicago, No. 97 C 06417, 1999 WL 759401, *2 (N.D. Ill. Sept. 3, 1999); Patterson v. Chicago Association for Retarded Children, No. 96 C 4713, 1997 WL 323575, *3 (N.D. Ill June 6, 1997). See also Sarko v. Pen-Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa. 1997) (plaintiff placed her mental condition at issue in ADA case, and therefore waived her privilege).
Here, Metzger's mental health is clearly relevant to this case and he has put his mental health at issue. Parker argues, albeit impliedly, that Metzger has put his mental condition at issue and waived his claim to psychotherapist-patient privilege. The court agrees, and the psychotherapist-patient privilege will not bar this discovery. Further, because federal common law controls this issue, the Illinois Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/10, serves only as guidance to the extent that it does not conflict with federal policy. See Wynne, 1999 WL 759401, at *2.
Metzger also argues that Parker should be barred from taking any discovery from treaters with whom Parker's counsel has had improper ex parte contacts, specifically Dr. Laaperi. Metzger argues that Illinois law holds that ex parte contacts between defense counsel and plaintiff's treating physician jeopardize the sanctity of the physician-patient privilege and are therefore prohibited. Here, however, Metzger concedes that the discussions did not involve matters of substance. The court will not bar discovery from Dr. Laaperi on this ground.
Further, Metzger argues that discovery should be denied with respect to Dr. Laaperi because the parties agreed that she would not be used in any legal action; the Metzgers retained Dr. Laaperi, in part, in anticipation of litigation; and her work is a protected work product under Rule 26. Metzger argues that Dr. Laaperi rendered her services a month after he had been removed from the school and Dr. Laaperi's work was prepared for the Metzgers in anticipation of litigation. Parker denies that there was any agreement that Dr. Laaperi would not be used in any legal action and asserts that the school allowed Dr. Laaperi to observe Metzger at the school because his parents assured the school that she was brought in to provide objective information for Metzger' s educational needs. The principal of Parker was concerned about the reasons for bringing Dr. Laaperi into the school, meaning whether she was brought in "as a pre-determined expert witness for an anticipated Metzger lawsuit." Parker's Reply at 5. Parker's own argument evidences that it was worried about potential litigation. The work-product privilege covers documents prepared in anticipation of litigation by a party's agent, and Parker has not demonstrated cause to undo the privilege. See Fed.R.Civ.P. Therefore, assuming that Dr. Laaperi is a non-testifying expert, her report is privileged. Thus, with the exception of Dr. Laaperi's report, Parker's motion to compel discovery of treaters is granted.
Motion to Strike
Metzger has served interrogatories upon Parker directed to Eugene Gross, Kelli Corkle, Daniel Frank, Julie Holman, Ann Nelson, Joan Pipin, Tom Rosenbluth, Janet Sullivan, Joey Wade, and Ann Breed. These individuals are members of Parker School's staff, but they are not defendants in this case. Metzger has already taken the deposition of Eugene Gross and plans to depose the others. Parker argues that the proposed interrogatories are inappropriate, unreasonably cumulative, and duplicative in light of Metzger's intent to depose these witnesses, and serve only to annoy, harass, and cause undue burden and expense upon Parker. In response, Metzger argues that Parker has failed to object to the interrogatories or make a good faith effort to meet and confer, as required by the federal rules, but instead chose to file the instant motion.
There are several problems here. Rule 33 only permits interrogatories directed at a party to the lawsuit, and the rule requires the objecting party to file objections to interrogatories, which was not done here. Further, when a party wants a non-party to testify at a deposition or to produce documents, Rule 45 requires a subpoena and permits the non-party the opportunity to object. Here, Metzger served interrogatories directed to a nonparty and Parker did not properly object. Further complicating the issue is the fact Parker is asking the court to strike something that was never filed with the court.
Local Rule 37.2 states that "this court shall hereafter refuse to hear any and all motions for discovery . . . unless the motion includes a statement (1) that after consultation in person or by telephone and good faith attempts to resolve differences they are unable to reach an accord, or (2) counsel's attempts to engage in such consultation were unsuccessful due to no fault of counsel's." Parker has not complied with this rule, and thus the motion to strike is denied.
Motion to Retake Deposition of Donald Metzger
Parker has moved for leave to retake the discovery deposition of Donald Metzger. Parker asserts the scope of Donald Metzger's deposition was limited "due to prior defense counsel's beliefs about Mr. Metzger's privileges as represented by Mr. Metzger." Motion at ¶ 5. As there does not appear to be any objection, Parker may retake the deposition of Donald Metzger. Last, Parker has moved to compel the deposition of Harrison Metzger because the parties cannot agree on the method, format, or limitations of the inquiry. Parker is entitled to take Harrison Metzger's deposition, and the parties are instructed to work out a mutually agreeable arrangement and only resort to a motion after they have tried to work out their dispute.
CONCLUSION
For the foregoing reasons, Parker's Motion to Compel Production of Donald Metzger's Notes is granted; Parker's Motion for Discovery of Treaters is granted in part and denied in part; Parker's Motion to Strike is denied; and Parker's Motion to Retake Discovery Deposition of Donald Metzger is granted, subject to the other rulings in this order.
IT IS SO ORDERED.