Most lawyers are very familiar with the attorney-client and work product privileges, including when they apply and how they might be waived. But there are a number of other privileges that are less well known. A recent decision from Magistrate Judge Jared Strauss discusses one such privilege: the psychotherapist-patient privilege.
The case is Eric Watkins v. Sergeant M. Bigwood, et al., City of Lauderhill, No. 18-CV-63035, 2020 WL 6781747, at *4 (S.D. Fla. Nov. 17, 2020). Watkins sued under 42 U.S.C. § 1983, claiming that certain officers and the City of Lauderhill violated his constitutional rights when they “Baker Acted” him (i.e., detained him and forced him to submit to a mental examination). He asserted that the officers lacked probable cause to seize him for involuntary examination. Specifically, he claimed that no mental health professional had certified that he “met the criteria for involuntary examination” and that there were no “viable reason(s) to believe that Plaintiff had a mental illness which caused him to refuse voluntary examination.” Separately, Watkins asserted damages from his involuntary commitment, including “emotional stress and anguish.”
To respond to these allegations, the defendants served a Rule 45 subpoena duces tecum on the Florida Medical Center, seeking Watkins’s medical records, including any psychiatrist records. Watkins objected, asserting that the records were privileged. Judge Strauss overruled the objection, finding that the medical records were both relevant and not protected by the psychotherapist-patient privilege.
On the relevance front, Judge Strauss noted that Watkins “placed his mental condition at issue by bringing a claim under 42 U.S.C. 1983 alleging that his involuntary commitment in a mental hospital occurred without probable cause.” The court reasoned that “[t]he documents requested – by either confirming that Plaintiff does suffer from a mental illness or by documenting potential signs of mental illness that the Plaintiff may exhibit – thus may tend to support Defendants’ position that they had reason to believe that a mental health examination was necessary to prevent harm to Plaintiff and/or others.”
On the privilege front, Judge Strauss noted that the Supreme Court had both (1) recognized “a federal common law psychotherapist-patient privilege under Rule 501 of the Federal Rules of Evidence” and (2) noted that such a privilege can be “waived.” Recognizing that the Supreme Court had not decided what, precisely, would constitute a waiver, Judge Strauss noted that district courts in the Eleventh Circuit had offered concrete guidance on that front. Specifically, district courts had “routinely” held that where a defendant places his mental condition “at issue”— by alleging that he suffers from a mental impairment, or by bringing a claim that requires proof of a mental impairment—he or she waives the privilege.
The Watkins case reminds us that there are a variety of “federal” privileges—and waiver issues—that one must consider when litigating a claim in federal court.
