Court of Appeals upholds psychotherapist privilege in garden variety damages claims

An inmate sued corrections officers who allegedly used excessive force against him. The attorney general's office wanted his psychiatric records on the theory that the pro se inmate waived the privilege at deposition and the records were otherwise useful to probe his state of mind and that his mental state is at the heart of the case. The AG's office also argued that even garden variety emotional distress claims allow for the review of these otherwise privileged records. Not so fast, says the Second Circuit.


The case is In re Sims, decided on July 17. The Second Circuit has not yet resolved an issue like this, which explains the very lengthy decision granting the inmate's petition for an interlocutory appeal to resolve this discovery dispute. The Circuit does not entertain these appeals very often, preferring to wait until the case is over. The Court held that this issue is too important and that delayed review of the district court's contrary ruling could kill the privilege, which the Supreme Court recognized in 1996.


The inmate prevails on appeal because his Complaint is limited to damages for physical, not emotional, injuries. While the inmate hinted at emotional damages at his deposition, he was pro se and not sophisticated enough to object (and the district court denied his request for counsel). While the attorney general's office argued that the records could resolve whether he suffers from psychological problems and could have started the altercation, the Court notes that this argument would bury the privilege and require both sides in an excessive force case to produce their psychiatric records.


Most interestingly, the Second Circuit rejects the argument "that 'anybody' who requests damages for 'pain and suffering has waived the psychiatric privilege' ' because the psychiatric records might conceivably disprove the experiencing of the pain and suffering,' ' that even . . . 'garden variety' injury waives the psychotherapist-patient privilege,' and that a plaintiff's mental health is placed in issue whenever the plaintiff's claim for 'unspecified damages' may 'include some sort of mental injury.'" As the Court sees it, this argument would always require production of these records in order to test the plaintiff's credibility or some other probative reason. The strong public policy reasons for the privilege (encouraging people to open up to their psychotherapists without fear that these confidences will be revealed) override these concerns.