SIDNEY A. FITZWATER, District Judge.
Plaintiff-counterdefendant Dimitri Charalambopoulos ("Charalambopoulos") moves to compel discovery pertaining to defendant-counterplaintiff Camille Grammer's ("Grammer's") treating psychiatrist, and Grammer moves for sanctions based on Charalambopoulos' initially filing the motion to compel and attached exhibits as public documents. For the reasons that follow, the court grants in part and denies in part both motions, and in part orders an in camera inspection.
This case is the subject of several prior memorandum opinions and orders. See, e.g., Charalambopoulos v. Grammer, 2017 WL 606639 (N.D. Tex. Feb. 15, 2017) (Fitzwater, J.); Charalambopoulos v. Grammer, 2015 WL 2451182 (N.D. Tex. May 22, 2015) (Fitzwater, J.); Charalambopoulos v. Grammer, 2015 WL 390664 (N.D. Tex. Jan. 29, 2015) (Fitzwater, J.). The court will therefore pretermit a general discussion of the background facts and procedural history and will discuss the matters that are pertinent to the motions it is now deciding.
Charalambopoulos brings defamation and related claims against Grammer, alleging, inter alia, that Grammer falsely and publicly accused him of physically abusing and assaulting her on October 16, 2013 (the "Alleged Assault"). Grammer asserts counterclaims against Charalambopoulos for assault, battery, and defamation per se.
Grammer has designated her treating psychiatrist, Bethany J. Tucker, M.D. ("Dr. Tucker"), as a combined fact/non-retained rebuttal expert who
P. 4/29/16 App. 3-4. Dr. Tucker has treated Grammer since 2005.
In response to Charalambopoulos' discovery requests, Grammer produced Dr. Tucker's treatment and billing records that cover therapy sessions dated June 13, 2011 (the first session during the month when Grammer and Charalambopoulos met) through January 14, 2016. Grammer has not produced any treatment or billing records that predate June 13, 2011; Grammer has redacted portions of Dr. Tucker's treatment records from sessions dated September 27, 2015, September 29, 2015, and January 13, 2016; and during Dr. Tucker's April 6, 2016 deposition, she declined to answer questions relating to her treatment of Grammer prior to June 13, 2011.
Charalambopoulos now moves to compel Grammer and Dr. Tucker to produce the following: all treatment notes and records related to Grammer from 2005 to the present; all documents related to Grammer's becoming a patient; correspondence between Dr. Tucker and any individual representing Grammer; and the information redacted from the treatment notes Grammer produced. Charalambopoulos requests that the court order Dr. Tucker to answer questions regarding the information that Grammer's counsel redacted from Dr. Tucker's session notes and regarding Grammer's treatment prior to June 2011. Charalambopoulos did not initially file his motion to compel or attached exhibits under seal.
Grammer opposes the motion to compel. She also separately moves for sanctions, contending that Charalambopoulos' failure to file the motion to compel and attachments under seal violated the September 3, 2015 protective order ("Protective Order") entered in this case, and resulted in conferring access to Grammer's confidential mental health information to various media outlets, causing her damages.
The court begins with Charalambopoulos' motion to compel.
Charalambopoulos moves the court to compel Grammer and Dr. Tucker to produce the following: all treatment notes and records related to Grammer from 2005 to the present; all documents related to Grammer's becoming a patient, including, but not limited, to patient questionnaires and patient medical history forms; any correspondence between Dr. Tucker and any individual representing Grammer; and the information redacted from the treatment notes Grammer produced. Charalambopoulos also moves the court to require Dr. Tucker to answer Charalambopoulos' questions regarding the information that Grammer's counsel redacted from her session notes, and to answer questions regarding Grammer's treatment prior to June 2011. He contends that Grammer's counsel has obstructed his efforts to discover Dr. Tucker's entire treatment of psychiatric symptoms regarding Grammer, and that Dr. Tucker's treatment of Grammer prior to the Alleged Assault is relevant because it shows that the symptoms on which Dr. Tucker relied to diagnose Grammer with Post Traumatic Stress Disorder ("PTSD") as a result of the Alleged Assault were present before October 16, 2013.
Grammer responds that, under Texas and California law,
Charalambopoulos argues in his reply that, by designating Dr. Tucker as a nonretained rebuttal expert to testify concerning her PTSD diagnosis of Grammer, her opinion related to Grammer's truthfulness, and her opinion related to whether the Alleged Assault occurred, Grammer has waived any psychiatrist-patient privilege, and that "Grammer is not permitted to use portions of privileged information as a `sword' to gain evidence in support of her defense and then use the psychiatrist-patient privilege as a `shield' to protect information [Charalambopoulos] is legally entitled to use during cross examination of Dr. Tucker." P. 6/7/16 Reply 4 (citation omitted). Regarding the redacted portions of Dr. Tucker's records and Grammer's attorneys' conversations with Dr. Tucker, Charalambopoulos argues that this information is not privileged and is relevant because the communications can be used to show bias.
The court considers first whether Charalambopoulos' motion to compel should be granted to the extent he seeks discovery relating to Dr. Tucker's treatment of Grammer prior to June 2011.
The Texas Rules of Evidence
Similarly, Rule 510(b) provides:
Although Grammer's communications with, and treatment records maintained by, Dr. Tucker appear generally to fall within the protective scope of Rules 509(b) and 510(b), the court must determine whether Grammer's actions in this litigation have waived the privilege.
In the analogous context of the attorney-client privilege, courts generally recognize that a privilege cannot be used simultaneously as both a sword and a shield. See, e.g., Willy v. Admin. Review Bd., 423 F.3d 483, 497 (5th Cir. 2005) (stating that under doctrine of implied waiver, "a party may not use privileged information both offensively and defensively at the same time"); Nguyen v. Excel Corp., 197 F.3d 200, 207 n.18 (5th Cir.1999) ("In accord with this principle is a client's inability to, at once, employ the privilege as both a sword and a shield. . . . Attempts at such improper dual usage of the privilege result in waiver by implication."); see also Valero Energy Corp. v. M.W. Kellogg Constr. Co., 866 S.W.2d 252, 255 (Tex. App. 1993, writ denied) ("Texas law will not permit a party to raise a claim or defense in a lawsuit, then attempt to stave off discovery related to that allegation through the use of privilege."). "In other words, when a party entitled to claim [a] privilege uses confidential information against his adversary (the sword), he implicitly waives its use protectively (the shield) under that privilege." Willy, 423 F.3d at 497.
Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003) (citations omitted). Thus a privilege "may implicitly be waived when [a] defendant asserts a claim that in fairness requires examination of protected communications." United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991).
Grammer asserts counterclaims for assault and battery under Texas law, and alleges truth as a defense to Charalambopoulos' claims for defamation and defamation per se. To prevail on these claims and defenses at trial, Grammer will have to persuade the jury that her version of the Alleged Assault is true. Grammer apparently seeks to do this in part by offering Dr. Tucker's testimony to rebut the opinions of Charalambopoulos' experts that Charalambopoulos did not assault Grammer, and that impeach Grammer's version of what occurred during the Alleged Assault. Dr. Tucker testified at her deposition that she had diagnosed Grammer with acute PTSD after the Alleged Assault, based, inter alia, on Grammer's exhibiting symptoms of insomnia, anxiety, and eating issues. Charalambopoulos maintains that the symptoms on which Dr. Tucker relied to diagnose Grammer with PTSD had been diagnosed by Dr. Tucker years before the Alleged Assault; he seeks to obtain evidence to this effect to use at trial to impeach Dr. Tucker's PTSD diagnosis.
The court holds that Charalambopoulos is entitled to discover whether Dr. Tucker has previously (i.e., at any point prior to June 2011) diagnosed Grammer with the same symptoms on which Dr. Tucker relied to conclude, after the Alleged Assault, that Grammer suffered from acute PTSD. To permit Grammer to corroborate her claims regarding the Alleged Assault by relying on Dr. Tucker's diagnosis of acute PTSD, but then to deny Charalambopoulos access to treatment records that might reveal that Grammer had previously exhibited some of the same symptoms in a context completely unrelated to the Alleged Assault, would impermissibly enable Grammer to use the mental-health-information privilege as both a sword and a shield. Accordingly, the court concludes that Charalambopoulos is entitled to obtain discovery regarding whether Dr. Tucker had previously (i.e., prior to June 2011) treated Grammer for symptoms of insomnia, anxiety, or eating issues. Grammer must produce these materials within 28 days of the date this memorandum opinion and order is filed.
Charalambopoulos is not entitled, however, to all treatment notes and records related to Grammer from 2005 to the present, all documents related to Grammer's becoming a patient, or an order requiring Dr. Tucker to answer questions regarding Grammer's treatment prior to June 2011, as Charalambopoulos requests in his motion. Setting aside the question whether Grammer's reliance on and disclosure of some of her mental health information resulted in a complete waiver of the privilege—Charalambopoulos contends that it does—Grammer has established
Rule 26(c) authorizes the court, for good cause shown, to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.
Although Grammer initially pleaded a counterclaim for intentional infliction of emotional distress ("IIED") and sought damages for past and future mental anguish, she no longer asserts an IIED claim or prays for mental anguish damages.
D. 5/20/16 Br. 6 (citation omitted). The court holds that, other than Dr. Tucker's prior treatment of symptoms similar to those she relied on to diagnose Grammer with PTSD, Dr. Tucker's pre-June 2011 treatment of Grammer for mental health issues wholly unrelated to Charalambopoulos or the events at issue in this case is neither relevant nor proportional to the needs of the case considering the factors enumerated in Rule 26(b)(1). Accordingly, Charalambopoulos is not entitled to wholesale discovery of all of Grammer's mental health records from her treatment by Dr. Tucker prior to June 2011. Rather, the motion to compel is granted only to the extent that Charalambopoulos seeks to discover whether, at any time prior to June 2011, Dr. Tucker treated Grammer for symptoms of insomnia, anxiety, or eating issues.
The court next considers Charalambopoulos' motion to compel Grammer to disclose the information redacted from certain of Dr. Tucker's treatment notes and to require Dr. Tucker to testify regarding the redacted information.
Grammer contends that the redacted portions of session notes on September 27, 2015 and September 29, 2015 pertain to communications between Dr. Tucker and one of Grammer's attorneys "to ensure that legal advice contemplated by Grammer's counsel would not be harmful to Grammer's mental health." D. 5/20/16 Br. 14. She maintains that these communications are protected by the attorney-client privilege, as provided in Tex. R. Evid. 503(a)(2)(B) and (b)(1).
The attorney-client privilege exists to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). To achieve this goal, the privilege protects from disclosure "communications from the client to the attorney made in confidence for the purpose of obtaining legal advice." Wells v. Rushing, 755 F.2d 376, 379 n.2 (5th Cir. 1985). "`It shields communications from the lawyer to the client only to the extent that these are based on, or may disclose, confidential information provided by the client or contain advice or opinions of the attorney.'" Aspex Eyewear, Inc. v. E'Lite Optik, Inc., 2002 WL 1592606, at *2 (N.D. Tex. July 17, 2002) (Fitzwater, J.) (quoting United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994)).
Because Grammer asserts the privilege, she has the burden of proving that it applies to each document that she seeks to protect from disclosure. See United States v. El Paso Co., 682 F.2d 530, 539 (5th Cir. 1982). She must establish as to each document the following elements:
AHF Cmty. Dev., LLC v. City of Dallas, 258 F.R.D. 143, 146 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting In re Grand Jury Proceedings, 517 F.2d 666, 670 (5th Cir. 1975)). Moreover, although the attorney-client privilege serves an important purpose, it also impedes the full and free discovery of truth and therefore should be strictly construed. Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 473 (N.D. Tex. 2004) (Kaplan, J.) (citing Perkins v. Gregg Cnty., Tex., 891 F.Supp. 361, 363 (E.D. Tex. 1995)); see also In re Grand Jury Proceedings in re Fine, 641 F.2d 199, 204 n.5 (5th Cir. Unit A Mar. 1981) ("[T]he attorney-client privilege should be confined within the narrowest limits consistent with its purpose.").
Under Tex. R. Evid. 503(b)(1), the attorney-client privilege protects confidential communications "made to facilitate the rendition of professional legal services to the client. . . between the client or the client's representative and the client's lawyer[.]" The term "client's representative" is defined to include "any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client." Tex. R. Evid. 503(a)(2)(B). Grammer maintains that
D. 5/20/16 Br. 14 (citations omitted).
Without conducting an in camera inspection, the court cannot determine whether Grammer has met her burden of establishing that the information redacted from the September 27, 2015 and September 29, 2015 session notes is privileged. Accordingly, within 28 days of the date this memorandum opinion and order is filed, Grammer must submit the withheld material for in camera inspection. She may either file the material under seal, or she may submit paper versions. If she submits paper versions, the court will order them filed under seal after it makes a ruling so that the record will be complete in case of any appeal.
Regarding the redacted portion of the January 13, 2016 session notes, Grammer contends that this redaction pertains solely to a separate legal matter, wholly unrelated to this lawsuit, and therefore is protected from disclosure by the psychiatrist-patient privilege, and is irrelevant. Charalambopoulos has not responded to this argument.
The court concludes that Grammer has demonstrated, and Charalambopoulos has not refuted, that the redacted portion of the session notes on January 13, 2016 is not relevant. Accordingly, the court denies Charalambopoulos' motion to compel this information.
Finally, the court considers Charalambopoulos' motion to compel any correspondence between Dr. Tucker and any individual representing Grammer.
Grammer objects to Charalambopoulos' request on the basis that it is overbroad and, to the extent Charalambopoulos seeks communications between Dr. Tucker and Grammer's attorneys, the request calls for the disclosure of privileged communications. Charalambopoulos responds that he is entitled to elicit testimony regarding Grammer's counsel's communications with Dr. Tucker as a treating psychiatrist who has been designated as a non-retained rebuttal expert, and that these communications can be used to show bias and are clearly discoverable.
To the extent Charalambopoulos' request for "any correspondence between Dr. Tucker and any individual representing Camille Grammer," P. 4/29/16 Br. 8, seeks correspondence between Dr. Tucker and Grammer's attorneys, the court concludes that Grammer has failed to meet her burden of proving that the attorney-client privilege applies to these documents. She argues that
D. 5/20/16 Br. 15-16. Although communications between Dr. Tucker and Grammer's attorneys after Grammer's attorneys agreed to represent Dr. Tucker could be protected from disclosure by the attorney-client privilege,
To the extent Charalambopoulos requests production of communications between Dr. Tucker and any other individual representing Grammer (i.e., someone who is not one of Grammer's attorneys), the court agrees that the discovery request is overbroad, and it also seeks evidence that is not shown to be relevant to any remaining claim or defense. Accordingly, Charalambopoulos' motion to compel is denied in this respect.
In summary, the court grants Charalambopoulos' motion to compel discovery relating to whether Dr. Tucker treated Grammer for symptoms of insomnia, anxiety, or eating issues prior to June 2011; orders an in camera inspection to decide whether Grammer has met her burden of establishing that the information redacted from the September 27, 2015 and September 29, 2015 session notes is privileged; grants the motion to compel the production of any correspondence between Dr. Tucker and Grammer's attorneys; and otherwise denies Charalambopoulos' motion to compel. Grammer must produce the materials to Charalambopoulos, or to the court for in camera inspection, in accordance with the deadlines specified above.
The court now turns to Grammer's motion for sanctions.
The Protective Order in this case provides, in pertinent part:
Sept. 3, 2015 Order 6. Although the brief and appendix to Charalambopoulos' motion to compel contain documents marked "Highly Confidential,"
Grammer seeks the following sanctions based on the failure to file Charalambopoulos' motion to compel and appendix under seal: (1) an order finding Charalambopoulos in civil contempt and directing him to pay a fine of $25,000; (2) an order denying Charalambopoulos' motion to compel; (3) an instruction that will apply to all future proceedings in this case "to the effect that [Charalambopoulos'] own filing of these materials on an unsealed basis led to the publication and republication of the allegations of assault in Houston in October 2013 and of the guardhouse incident in April 2014, so that all or part of any damages alleged by [Charalambopoulos] as a result of the publication of those matters was caused by [Charalambopoulos'] own conduct in filing the Motion to Compel without first obtaining an order sealing that filing as required," D. 5/6/16 Br. 6; and (4) attorney's fees in the amount of $3,750 for the preparation and filing of Grammer's motion for sanctions, plus any additional sums incurred in preparing and filing any reply brief. Charalambopoulos opposes the motion.
Although the court could issue a finding of civil contempt,
Within 28 days of the date this memorandum opinion and order is filed, the parties must confer and attempt to agree on the amount of reasonable attorney's fees to be awarded to Grammer and on the date by which these fees will be paid. If the parties cannot reach 1013, 1017 (5th Cir. 1984)). "Good faith is not a defense to civil contempt; the question is whether the alleged contemnor complied with the court's order." Chao v. Transocean Offshore, Inc., 276 F.3d 725, 728 (5th Cir. 2002). It is undisputed that the Protective Order in this case required Charalambopoulos to file his motion to compel and accompanying appendix under seal in accordance with N.D. Tex. Civ. R. 79.3 and that Charalambopoulos failed to do so. See P. 5/27/15 Br. 1 ("Plaintiff's counsel inadvertently allowed four pages of documents marked `highly confidential' to be filed as a regular filing as opposed to filing under seal pursuant to Local Rule 79.3 as specified in this Court's Protective Order."). agreement, Grammer may file a motion for such reasonable attorney's fees. And if the court grants her relief that is greater than what she sought in the meet and confer process, she will be entitled to additional reasonable attorney's fees and nontaxable expenses incurred in filing her motion for reasonable attorney's fees.
For the reasons explained, the court grants in part and denies in part Charalambopoulos' motion to compel and Grammer's motion for sanctions, and it in part orders an in camera inspection.
Sept. 3, 2015 Order 5-6.
D. 5/27/16 App. 3.