United States District Court, D. Nevada
FOLEY, JR. United States Magistrate Judge
matter is before the Court on Defendant Montgomery's
Motion to Compel Discovery (ECF No. 243) and Motion for
Sanctions (ECF No. 244), filed on December 13, 2017.
Plaintiff filed his Opposition (ECF No. 251) on December 13,
Montgomery requests an order compelling Plaintiff to respond
to Defendant's second set of Interrogatories and Requests
for Production, to provide a HIPPA release form for
Plaintiff's mental health records, to supplement his
response to Defendant's Request for Production No. 60,
and to provide counsel with Plaintiff's responses to
Defendant's first set of Interrogatories. Plaintiff
represents that since the filing of Defendant's motion to
compel he has responded to Defendant's second set of
Interrogatories. The Court, therefore, finds that such
request is moot.
Montgomery was initially represented by the Nevada Attorney
General's Office. On September 2, 2016, the Court granted
Defendant's motion to substitute Timothy Mulliner, Esq.
as her counsel of record in place of the Nevada Attorney
General's Office. ECF No. 129. On September 7, 2017, the
Court granted Defendant's motion to substitute her
current counsel in place of Timothy Mulliner, Esq. ECF No.
179. Defendant's current counsel has been unable to
obtain a copy of Plaintiff's responses to Defendant's
first set of Interrogatories and former counsel has not
retained a copy. Defendant requests that Plaintiff supply her
with a copy of his responses to her first set of
Interrogatories. Plaintiff argues that he properly served his
responses to her first set of Interrogatories to Mr. Mulliner
and argues that it is not his responsibility to provide
another copy to her current counsel. Plaintiff shall provide
Defendant with a copy of his responses to Defendant's
first set of Interrogatories. If Plaintiff had voluntarily
agreed to provide a copy of his responses to Defendant, he
would have been entitled to reasonable costs. However, the
Court will not order Defendant to pay Plaintiff for the costs
associated with providing a copy of his responses because
Defendant was required to file a motion to compel.
Request for Production No. 60 is for copies of all of
Plaintiff's medical records related to any psychological,
psychiatric, or any other mental health related treatment he
has received in the last ten (10) years. Plaintiff objects to
this request as overly broad, irrelevant, and as an invasion
of his right to privacy of his mental health records.
Defendant argues that Plaintiff's mental health records
are relevant to his claims because he alleged intentional
infliction of emotional distress, he is seeking damages for
severe emotional trauma, and he designated his treating
psychologist as a witness. Plaintiff argues that Defendant
failed to request a HIPAA authorization form through a
discovery request and that he is not obligated to respond.
communications between a licensed psychotherapist and a
patient in the course of diagnosis or treatment are protected
from compelled disclosure. E.E.O.C. v. Wal-Mart Stores,
Inc., 276 F.R.D. 637, 640 (E.D. Wash. 2011) (citing
Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135
L.Ed.2d 337 (1996)). Where a plaintiff alleges garden-variety
emotional distress and does not rely on medical records or
medical expert testimony, a number of courts in the Ninth
Circuit have held that the physician-patient privilege has
not been waived. Roberts v. Clark Cty. Sch. Dist.,
312 F.R.D. 594, 607 (D. Nev. 2016) (citing EEOC, 276
F.R.D. at 640-41). Courts have found that the
psychotherapist-patient privilege is waived whenever the
patient places his mental condition at issue.
Roberts, 312 F.R.D. at 641.
alleges a claim for intentional infliction of emotional
distress and seeks damages for emotional trauma regarding
actions that took place in 2013. He has placed his mental
condition at issue and his mental health records are relevant
to the claims and defenses of this case. Defendants are,
therefore, entitled to obtain production of Plaintiff s
mental health records. The Court, however, limits
Defendant's request for mental health records to
treatment Plaintiff has received from 2013 to the present.
Plaintiff shall provide the HIPAA authorization to
Defendant's counsel to obtain such records within 14 days
from the date of this order.
requests an award of attorney's fees and costs pursuant
to Federal Rule of Civil Procedure 37(a)(5) and an award of
sanctions against Plaintiff in the form of waiver of untimely
objections. Rule 37(a)(5)(A) provides for the recovery of
expenses incurred in making a motion to compel that is
granted. The Court should not award expenses where the
opposing party's nondisclosure, response, or objection
was substantially justified or other circumstances make an
award of expenses unjust. Fed.R.Civ.P. 37(a)(5)(A)(ii)(iii).
The Court finds that an award of attorney's fees, costs,
and sanctions against Plaintiff is not warranted and,
therefore, denies Defendant's motion for sanctions.
Accordingly, IT IS HEREBY ORDERED that
Defendant Montgomery's Motion to Compel Discovery (ECF
No. 243) is granted, in part. Plaintiff
shall provide the HIPAA authorization to Defendant's
counsel to obtain such records within fourteen (14) days from
the date of this order.
IS FURTHER ORDERED Plaintiff shall provide Defendant
with a copy of his responses to Defendant's first set of
Interrogatories within fourteen (14) days from the date of
IS FURTHER ORDERED that Defendant's Motion for