ORDER QUASHING SUBPOENA (ECF No. 44) STATEMENT

LAUREL BEELER, Magistrate Judge.

This is an employment case in which the plaintiff`s nine causes of action charge the defendant with violating various labor laws. (Compl. — ECF No. 1-1.)1 The plaintiff claims that the defendant fired him after he blew the whistle on those alleged violations; the defendant claims that the plaintiff was fired for violating a "variety" of corporate policies. (Jt. Ltr. Br. — ECF No. 44 at 1-2.) Among other things, the plaintiff seeks damages for the "emotional distress, humiliation, embarrassment, and mental anguish" that the defendant allegedly caused him. (Id. at 22 (¶¶ 94, 97), 27 (¶ 11).) The alleged emotional-distress damages are tied to the claims for wrongful termination and defamation or libel. (Id.)

The defendant has subpoenaed the plaintiff`s "treating psychiatrist" to produce the following:

(ECF No. 44 at 1.)

Citing California`s psychotherapist-patient privilege (Cal. Evid. Code § 1014), and constitutional right to privacy (Cal. Const. art. I, § 1), the plaintiff seeks to quash the subpoena. He argues (in sum) that because he claims only "garden variety" emotional distress, and disavows recovery for "severe" psychological harm (among other things), he has not put his mental health in issue so as to waive the privilege or his right to privacy. (ECF No. 44 at 2-3.) The defendant counters that, especially by claiming that ongoing emotional distress kept him from finding another job, the plaintiff alleges more than "garden variety" emotional distress, has put his mental condition squarely in issue, and thus has waived any right to shield his psychiatric medical records from discovery. (See id. at 3-6.)

ANALYSIS

Under Federal Rule of Civil Procedure 45(a)(1)(C), any party may serve a subpoena commanding a nonparty "to produce documents, electronically stored information, or tangible things. ..." Fed. R. Civ. P. 45(a)(1)(C). The subpoena may command the production of documents that are "not privileged" and are "relevant to any party`s claim or defense" or "reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Upon a timely motion, the court issuing such a subpoena shall quash it if it determines that the subpoena "requires disclosure of privileged or other protected matter, if no exception or waiver applies." Fed. R. Civ. P. 45(d)(3)(A)(iii).

I. LEGAL STANDARD

This is a diversity case (ECF No. 1 at 3-5, ¶¶ 7-16), so state-law privilege rules apply. See Fed. R. Evid. 501. Confidential communications between a patient and her psychotherapist are privileged under California law. Cal. Evid. Code § 1014. But there is no privilege "as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by ... the patient[.]" Cal. Evid. Code § 1016. "[S]ection 1016 of the Evidence Code compels disclosure of only those matters which the patent himself has chosen to reveal by tendering them in litigation." In re Lifschutz, 2 Cal.3d 415, 426 (1970). This patient-litigant exception "allows only a limited inquiry into the confidences of the psychotherapist-patient relationship, compelling disclosure of only those matters directly relevant to the nature of the specific `emotional or mental' condition which the patient has voluntarily disclosed and tendered in his pleadings or in answer to discovery inquiries." Id. at 431; see also Vinson v. Super. Ct., 43 Cal.3d 833, 838 (1987) ("[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.").

California`s constitution bestows a broad right of privacy. See Cal. Const. art. I, § 1; El Dorado Sav. & Loan Ass'n v. Super. Ct., 190 Cal.App.3d 342, 345 (1987). This right is "interrelated" with, but is "broader" than the psychotherapist-patient privilege; the latter has been called "one aspect of the [constitutional] right of privacy." Davis v. Super. Ct., 7 Cal.App.4th 1008, 1013 (1992). The privacy right extends to discovery proceedings in civil actions. See San Diego Trolley, Inc. v. Super. Ct., 87 Cal.App.4th 1083 (2001). The right to privacy is not absolute; it may be abridged to accommodate a compelling public interest. Moskowitz v. Super. Ct., 137 Cal.App.3d 313, 316 (1980). "One such interest, evidenced by California`s broad discovery statutes, is `the historically important state interest in facilitating the ascertainment of truth in connection with legal proceedings.`" Id. (quoting Britt v. Super. Ct., 20 Cal.3d 844, 857 (1978)).

A plaintiff does not put his mental condition at issue, however, through a "simple ... harassment claim asking compensation for having to endure an oppressive work environment or for wages lost following an unjust dismissal. ... To hold otherwise would mean that every person who brings such a suit implicitly asserts he or she is mentally unstable, obviously an untenable proposition." Vinson, 43 Cal. 3d at 840. More generally, a plaintiff who brings only a "garden variety" claim for emotional distress waives neither the evidentiary privilege nor her right to privacy under California law. See Davis, 7 Cal. App. 4th at 1017 ("garden variety" personal-injury action alleging general damages, including mental suffering, did not put plaintiff`s mental state at issue); see also EEOC v. Serramonte, 237 F.R.D. 220, 224-25 (N.D. Cal. 2006) (psychotherapist-patient privilege was not waived under California law where plaintiff brought only "garden-variety" claim for emotional distress and did not intend to rely on records or on testimony by a medical or psychiatric expert to support its claim). The "Supreme Court [of California] has recognized that the extent to which a mental component [of injury] may be in issue in a particular suit depends upon the facts of a particular case." Davis, 7 Cal. App. 4th at 1016 (citing Roberts v. Super. Ct., 9 Cal.3d 330, 338-39 (1973)).

II. APPLICATION

Precedent indicates that Mr. Smith`s allegations fall within the range of normal emotional distress incident to a more or less extrinsic underlying wrong — here, the claims for wrongful termination and defamation or libel. Such allegations do not put Mr. Smith`s mental health sufficiently in issue to breach the psychotherapist-patient privilege or constitutional right to privacy. Significant here, in view of the case law, are Mr. Smith`s express qualifications and disavowals concerning his claimed emotional distress. He writes that he "is seeking only garden[-]variety emotional[-]distress damages." (ECF No. 44 at 3.) More important, he adds:

Serramonte, 237 F.R.D. at 224 (quoting Fritsch v. City of Chula Vista, 187 F.R.D. 614, 632 (N.D. Cal. 1999)) (final citation added in Serramonte). The Serramonte plaintiff therefore "ha[d] not waived her right of privacy by asserting more than a garden-variety claim of emotional distress." Serramonte, 237 F.R.D. at 224; see also Turner v. Imperial Stores, 161 F.R.D. 89 (S.D. Cal. 1995) (plaintiff`s claim of "severe" emotional distress did not justify disclosing medical records).

The same result should obtain here. Allowing inquiry into Mr. Smith`s medical records for the apparently ordinary emotional distress that he claims "would defeat the purpose of the [psychotherapist-patient] privilege." Davis, 7 Cal. App. 4th at 1016. "The privilege is too important to be brushed aside when the mental condition of the plaintiff may be only peripherally ORDER QUASHING SUBPOENA — 14-846 LB 5 involved." Id. at 1017 (quoting Tylitzki v. Triple X Serv., Inc., 261 N.E.2d 533, 535-36 (Ill. App. 1970)). Especially considering that, in California law, the privilege is "interrelated" with, and indeed is "one aspect of the [constitutional] right of privacy," see Davis, 7 Cal. App. 4th at 1013, the court hesitates to open up Mr. Smith`s medical records when his distress is not claimed to be unusually severe or analytically central to his claims.

The undersigned reached a similar decision in Pathak v. Avis Rent A Car Sys., LLC, 122 Fair Empl. Prac. Cas. (BNA) 175, 2014 WL 820065 (N.D. Cal. Feb. 28, 2014).

A few concluding remarks are needed. First, this case is closer than other situations in which courts have shielded mental-health records from discovery under California`s psychotherapist-patient privilege and constitutional right to privacy. Viewing this case from subtly different angles suggests markedly different conclusions. From one perspective, as the defendant has well argued, the plaintiff`s allegations of ongoing mental distress that kept him from getting a job seem to put his psychological well-being in issue — maybe especially when one considers that this touches upon his duty to mitigate damages. Turn the matter only slightly, though, to view this case from the perspective of California`s strong constitutional privacy right, and its related evidentiary privilege, and one hesitates to open up the plaintiff`s records to discovery. The court thinks that, ultimately, the weight of express constitutional inscription must prevail.

This does not mean that the plaintiff`s mental health is completely immune from inquiry. This is the second closing remark. The defendant justly insists that, having sought emotional-distress damages, and apparently claiming ongoing psychiatric disability that has kept him from securing new employment, the plaintiff cannot at the same time stymie all questions into his mental health. The plaintiff`s mental health undeniably plays a role here. See Vinson, 43 Cal. 3d at 838 ("[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy."). Perhaps especially, again, insofar as the plaintiff`s claimed emotional distress intersects with his obligation to mitigate his damages. The defendant must be allowed to question the plaintiff about the nature and extent of his distress — consistent, obviously, with the plaintiff`s right to withhold protected communications and records.

Finally, the court will hold the plaintiff to his assertion that he has suffered only the emotional distress that "an ordinary person would likely experience in similar circumstances." (See ECF No. 44 at 3.) And, indeed, to all the disavowals he has made. (See id.) Should his claims later expand beyond the limits he has described, the court will entertain a renewed request to open attendant evidence to discovery. Cf. Verma, 2009 WL 1468720 at *2.

* * *

CONCLUSION

The court quashes the subpoena. At the hearing, the parties agreed that, because the plaintiff`s medical records are already with the subpoena server, they should be delivered to plaintiff`s counsel directly. Plaintiff`s counsel must retain those records absent further order of the court.

This disposes of ECF No. 44.

IT IS SO ORDERED.