The Therapist's Notes and the Privilege Waiver
A plaintiff sues her former employer for intentional infliction of emotional distress, alleging a manager's campaign of harassment caused severe anxiety. She claims ongoing therapy and puts her emotional condition in issue. The employer subpoenas the therapist's notes. The plaintiff asserts psychotherapist-patient privilege. The notes include: (a) the plaintiff's account of the harassment; (b) the therapist's impression that the plaintiff 'catastrophizes and has a pre-existing anxiety disorder'; and (c) a statement the plaintiff made to the therapist: 'I told my sister I was thinking about quitting, and she said the manager was a monster.' The employer also seeks to call the plaintiff's sister to testify about that conversation. The plaintiff objects on privilege grounds. The court must rule.
1. Has the plaintiff waived the psychotherapist-patient privilege by putting her emotional condition in issue, and if so, how far does the waiver extend?
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The privilege protects confidential communications between a patient and a licensed psychotherapist. The prevailing view is that a plaintiff who affirmatively places her emotional condition in issue - as she must to prove severe emotional distress - waives the privilege as to the communications relevant to that condition. The waiver is not global; it is limited to what is necessary to evaluate the claim. The court should conduct an in camera review and release only the portions bearing on diagnosis, causation, and severity.
Component (a), the plaintiff's account of the harassment, is a confidential communication but is directly relevant to the source of her distress and is within the waiver. Component (b), the therapist's diagnostic impression of a pre-existing disorder, is highly relevant to causation and damages and is within the waiver. Component (c) is trickier: the plaintiff's statement about what she told her sister is a communication to the therapist, but the underlying conversation with the sister is not a psychotherapist communication. The court should redact unrelated material and may permit the employer's expert to review the released records, with a protective order limiting use to this litigation.
2. Can the employer call the sister to testify about the conversation, and does any privilege apply?
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The psychotherapist-patient privilege does not reach the sister's conversation. The plaintiff spoke to her sister, not to a therapist, and no therapist was present. The sister's testimony is therefore not barred by the psychotherapist privilege. The plaintiff might invoke a general confidential-communication privilege, but no such privilege protects ordinary family conversations.
The sister's testimony is hearsay if offered to prove the manager was a 'monster,' but it is admissible if offered to impeach or to show the plaintiff's state of mind - for example, that she was contemplating quitting, which bears on mitigation of damages. If offered for the truth of the matter, the plaintiff's own statement is an opposing party's statement and is admissible against her; the sister's characterization is not. The court should admit the sister's testimony about what the plaintiff said, with a limiting instruction that it may be considered only for the plaintiff's state of mind and not for the truth of the sister's opinion. The privilege ruling and the hearsay ruling are independent; the plaintiff loses on both as to this conversation.