Dr. Erik Natkin, DO PC v. American Osteopathic Association

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DR. ERIK NATKIN, D.O. P.C., a Utah Case No. 3:16-cv-1494-SB

corporation; and DR. ERIK NATKIN, D.O.,

an individual, OPINION AND ORDER

Plaintiffs,

v.

AMERICAN OSTEOPATHIC

ASSOCIATION, et al.,

Defendants.

Benjamin Natkin, LAW OFFICES OF BENJAMIN NATKIN, 9854 National Boulevard, Suite 369, Los

Angeles, CA 90034; and Clark E. Rasche, WATKINSON LAIRD RUBENSTEIN PC, P.O. Box 10567,

Eugene OR 97440. Of Attorneys for Plaintiffs.

Blake J. Robinson and Caitlin P. Shin, DAVIS WRIGHT TREMAINE LLP, 1300 SW Fifth Avenue,

Suite 2400, Portland OR 97201. Of Attorneys for Defendants Samaritan Health Services, Inc.;

Good Samaritan Hospital Corvallis; Albany General Hospital; Mid-Valley Healthcare, Inc.;

Samaritan Pacific Health Services, Inc.; Samaritan North Lincoln Hospital; and Dr. Luis R. Vela,

D.O.

J. Michael Porter, MILLER NASH GRAHAM & DUNN LLP, 3400 U.S. Bancorp Tower, 111 SW

Fifth Avenue, Portland, OR 97204; and Mark H. Meyerhoff and Christopher S. Frederick,

LIEBERT CASSIDY WHITMORE, 6033 West Century Boulevard, Fifth Floor, Los Angeles, CA

90045. Of Attorneys for Defendant Western University of Health Sciences.

Michael C. Lewton, COSGRAVE VERGEER KESTER LLP, 900 SW Fifth Avenue, 24th Floor,

Portland, OR 97204; John R. Danos, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, 555

S. Flower Street, Suite 2900, Los Angeles, CA 90071; and Joshua P. Dennis, SCHWABE,

WILLIAMSON & WYATT, 1211 SW Fifth Avenue, Suite 1900, Portland, OR 97204. Of Attorneys

for Defendant American Osteopathic Association.

Thomas R. Rask III, KELL ALTERMAN & RUNSTEIN LLP, 520 SW Yamhill Street, Suite 600,

Portland, OR 97204; and Ronald Thomas Vera and Robert P. Johnston, LAW OFFICES OF VERA

AND BARBOSA, 223 West Foothill Boulevard, Suite 200, Claremont, CA 91711. Of Attorneys for

Defendant Osteopathic Postdoctoral Training Institute, OPTI-West Educational Consortium.

Michael H. Simon, District Judge.

United States Magistrate Judge Stacie Beckerman issued three Discovery Orders in this

case (ECF 238, ECF 239, and ECF 248). Judge Beckerman granted in part and denied in part

Plaintiffs’ informal motion to compel, sent by email. Judge Beckerman also granted in part and

denied in part the informal motion to compel of the Samaritan Defendants (Good Samaritan

Hospital Corvallis, Samaritan Health Services, Inc., and Dr. Luis R. Vela, DO), also sent by

email. Plaintiffs timely filed objections (ECF 250 and ECF 251), and the Samaritan Defendants

timely responded (ECF 255 and ECF 257).

STANDARDS

The Federal Magistrates Act grants district courts the authority to delegate certain matters

to magistrate judges. See 28 U.S.C. § 636(b)(1). In civil actions, a district court may designate a

magistrate judge to determine any pretrial matter, except motions for injunctive relief, for

judgment on the pleadings, for summary judgment, to permit or deny maintenance of a class

action, to dismiss for failure to state a claim, and to involuntarily dismiss an action. 28 U.S.C.

§ 636(b)(1)(A). For any of these excluded motions, a district judge may designate a magistrate

judge to conduct hearings and submit proposed findings of fact and recommendations for

disposition. 28 U.S.C. § 636(b)(1)(B).

Rule 72 of the Federal Rules of Civil procedure implements the authority provided by the

Federal Magistrates Act. Under Rule 72(a), a magistrate judge may “hear and decide” all referred

pretrial matters that are “not dispositive of a party’s claim or defense.” Fed. R. Civ. P. 72(a); see

also Mitchell v. Valenzuela, 791 F.3d 1166, 1168 (9th Cir. 2015) (explaining that “magistrate

judges may hear and determine nondispositive matters, but not dispositive matters”). For pretrial

matters referred to a magistrate judge that are dispositive of a claim or defense, without consent

by all parties, Rule 72(b) allows the magistrate judge only to “enter a recommended disposition,

including, if appropriate, proposed findings of fact.” Fed. R. Civ. P. 72(b)(1).

The distinction between a dispositive motion and a nondispositive matter is significant

for the standard of review. When a party timely objects to a magistrate judge’s findings and

recommendations concerning a dispositive motion, the district judge must make a de novo

determination of those portions of the magistrate judge’s proposed findings and

recommendations to which an objection has been made. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.

P. 72(b)(3). When a party timely objects to a magistrate judge’s determination of a

nondispositive matter, however, the district judge may reject that determination only when it has

been shown that the magistrate judge’s order is either clearly erroneous or contrary to law. 28

U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). This means the Court “will evaluate the Magistrate

Judge’s factual findings to determine if any are clearly erroneous” and “will evaluate the

Magistrate Judge’s legal conclusions to determine if any are contrary to law, which involves a de

novo review of those issues.” Quatama Park Townhomes Owners Ass’n v. RBC Real Est. Fin.,

Inc., 365 F. Supp. 3d 1129, 1133 (D. Or. 2019); see also id. at 1141-42.

DISCUSSION

Judge Beckerman resolved the informal discovery disputes sent by emails to her

chambers without formal motion practice. Thus, there are some formalities, such as Local

Rule 37-1, that do not apply,1 and some information that might otherwise have been in the record

that is not. The parties supplemented the record in their objections and responses before this

Court, which the Court accepts.

A. Objections to the Discovery Order Resolving the Samaritan Defendants’ Motion

1. Application of Oregon Law

Plaintiffs first object that Judge Beckerman erroneously applied Oregon law in deciding

the discovery disputes. The Court, however, already determined that Oregon law applies to the

claims involving the Samaritan Defendants. See ECF 143 at 7 (adopting Judge Beckerman’s

recommendation). The Court declined to decide at that time whether to apply Oregon or

California law on the claims against the other defendants, Western University of Health

Sciences, American Osteopathic Association, and OPTI-West Educational Consortium. Id. at 25

n.7. The Court will not revisit this determination. This resolves several of Plaintiffs’ other

objections, which are based on the application of California law.

2. Oregon Revised Statutes § 40.225

Plaintiffs next object to Judge Beckerman’s decision under Oregon Revised Statutes

§ 40.225. Judge Beckerman concluded that Oregon’s privilege law applied to protect certain

requested information, finding that Dr. Lewis Burgess was a representative of Dr. Natkin. Judge

Beckerman noted that there was no evidence in the record showing that Dr. Burgess was a

representative employed by Dr. Natkin’s then-attorney, B. Kevin Burgess, Esq., to assist him.

Plaintiffs provide supplemental evidence showing that Mr. Burgess “engaged the services of

Dr. Todd Lewis . . . to assist [him] on a volunteer basis by appearing in [his] stead at

1 Because of the informal nature of how the disputes were raised, the Court overrules

Plaintiffs’ objection that the Samaritan Defendants’ “motion” to compel should be denied

because they failed to comply with Local Rule 37-1.

Dr. Natkin’s hearing.” Decl. of B. Kevin Burgess, Esq., ¶ 5 (ECF 250-1 at 2). Based on the new

evidence, the Court declines to adopt the finding by Judge Beckerman on this issue and instead

finds that Dr. Lewis was a representative of both Dr. Natkin and Mr. Burgess. This finding,

however, does not affect the outcome of Judge Beckerman’s Discovery Order on this issue

because she found the requested communications involving Dr. Lewis to be privileged.

3. Amount of Attorney’s Fees

Plaintiffs also object to Judge Beckerman’s conclusion that the amount of attorney’s fees

is not privileged and her order that Plaintiffs must produce the requested information. Plaintiffs

and the Samaritan Defendants agree that this conclusion by Judge Beckerman is now moot

because the Samaritan Defendants are no longer requesting this information. The Court,

therefore, declines to adopt this portion of Judge Beckerman’s Order as moot.

4. Privilege Log

Plaintiffs next object to Judge Beckerman’s requirement that Plaintiffs produce a

privilege log that discloses “the nature of the correspondence, the date of sending, the sender and

recipient(s), and a brief statement describing the subject of the content.” ECF 239 at 4-5.

Plaintiffs argue that this degree of detail requires disclosure of privileged information because

the timing, nature, and frequency of privileged communications will disclose investigative

efforts and litigation strategy. Under the circumstances of this case, the Court finds no error in

Judge Beckerman’s requirement that Plaintiffs produce a routine privilege log. See Fed. R. Civ.

P. 26(b)(5)(A)(ii).

5. Psychotherapist Privilege

Plaintiffs object that Judge Beckerman erroneously construed Oregon law in concluding

that Dr. Natkin waived his psychotherapist privilege by generally asserting noneconomic

damages without claiming any “emotional condition” or intending to produce any expert

testimony on any “emotional condition” or emotional distress. This is a legal issue that the Court

reviews de novo.2 The Oregon Supreme Court has not determined the contours of the

psychotherapist privilege or its litigation waiver. The Court, therefore, will consider how the

Oregon Supreme Court likely would rule if faced with this question. In re Kirkland, 915

F.2d 1236, 1239 (9th Cir. 1990) (stating that without specific state supreme court guidance, a

federal court “must predict how the highest state court would decide the issue using intermediate

appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements

as guidance”).

The psychotherapist-patient privilege is established in Oregon Revised Statutes § 40.230,

Oregon Evidence Code (OEC) 504, which provides:

A patient has a privilege to refuse to disclose and to prevent any

other person from disclosing confidential communications made

for the purposes of diagnosis or treatment of the patient’s mental or

emotional condition among the patient, the patient’s

psychotherapist or persons who are participating in the diagnosis

or treatment under the direction of the psychotherapist, including

members of the patient’s family.

2 Plaintiffs also object that Judge Beckerman erroneously assumed that Plaintiffs are

claiming emotional distress damages by seeking noneconomic damages in the amount of

$51,000,000. Plaintiffs, however, do not assert what other type of noneconomic damages they

are request in the amount of $51,000,000. Plaintiffs state that they multiplied their economic

damages by five, which they contend is standard practice in California. Regardless of whether a

multiplier of economic damages provides an adequate assessment of the amount of noneconomic

damages, that does not answer the question of the type of harm noneconomic damages are

intended to compensate in this case. Plaintiffs do not contend that Dr. Natkin was physically

harmed, and thus do not claim physical pain and suffering. It defies common sense to argue that

Plaintiffs assert $51,000,000 in noneconomic damages and none of it includes compensation for

emotional distress damages. Indeed, it appears that the only noneconomic harm that Plaintiffs

seek are for reputational injury and related emotional distress (including mental suffering and

humiliation). See, e.g., Or. Rev. Stat. § 31.705 (defining “noneconomic damages” as “subjective,

nonmonetary losses, including but not limited to pain, mental suffering, emotional distress,

humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of

consortium, inconvenience and interference with normal and usual activities apart from gainful

employment”).

Or. Rev. Stat. § 40.230(2). This statute also establishes limitations on the privilege, meaning

circumstances in which communications are not privileged. This includes the directive that

“[t]here is no privilege under this rule as to communications relevant to an issue of the mental or

emotional condition of the patient: (A) In any proceeding in which the patient relies upon the

condition as an element of the patient’s claim or defense.” Id. § 40.230(4)(b)(A).

The Oregon Supreme Court has not specifically construed the litigation limitation

provision of the statute. That court, however, has quoted the limitation contained in

OEC 504(4)(b)(A) and noted that a similar limitation is not contained in the physician-patient

privilege. Hodges v. Oak Tree Realtors, Inc., 363 Or. 601, 611 (2018). The Oregon Supreme

Court analyzed that provision in In re Starr, 330 Or. 385 (2000). In Starr, a special master had

found that the affected party “waived” the psychotherapist privilege, which the Oregon Supreme

Court considered under OEC 504(4)(b)(A), as a potential situation where there is “no privilege

where patient relies on particular condition as element of patient’s claim or defense.” Id. at 390.

The Oregon Supreme Court did not consider that issue under OEC 511, Oregon’s general

privilege waiver provision.

In Starr, the affected party, a person having a dispute with the Oregon State Bar, argued

that “she did not make her emotional state an element of her claim or defense.” Id. The Oregon

Supreme Court disagreed, discussing how the Oregon State Bar had asked the applicant for

information regarding how she was handling emotional and psychological issues and that the

applicant had responded by submitting supplemental information noting her “regular

psychotherapy” to address the issues that had resulted in her bar disciplinary hearings, providing

the dates of those appointments, and providing a report by a psychotherapist who evaluated her

and her underlying records for purposes of preparing the report. Id.

The Oregon Supreme Court concluded:

Regardless of the label that applicant attached to her problems, she

clearly indicated in her submissions to the Bar that there was an

emotional component to her past conduct that she was addressing

through psychotherapy. The fact that applicant submitted her

therapist’s appointment calendar and other psychological materials

leads to the reasonable inference that she wished to create the

impression that she had dealt with the emotional problems using

that therapeutic approach. Although the Bar may have encouraged

her to do so, it was applicant’s choice to interject her psychological

condition and treatment into the inquiry—most likely because she

understood that it was an important, perhaps critical, issue to the

Bar and that ignoring it would not serve her cause. And, once

applicant raised the issue as pertinent to her claim that she now is

entitled to reinstatement, she waived the privilege that ordinarily

would apply to her communications with that psychotherapist.

Id. at 391. The Oregon Supreme Court discussed the lack of privilege under OEC 504(4)(b)(A)

as a “waiver.”

The Oregon Court of Appeals has not specifically construed the scope of the limitation

contained in OEC 504(4)(b)(A). The case most cited for the proposition that Oregon’s statute

provides a “broad” limitation (also referred to by Oregon courts as a waiver) is Baker v. English.,

134 Or. App. 43 (1995), aff’d in part, rev’d in part, 324 Or. 585 (1997). In Baker, the Oregon

Court of Appeals stated: “There is no dispute that Drucker’s records, as they pertained to

plaintiff himself, were not privileged, because plaintiff put his own psychological condition into

question by claiming emotional distress damages.” Id. at 46-47. The parties in Baker, however,

did not dispute on appeal whether the psychotherapist’s records were privileged, but instead

disputed the trial judge’s Rule 403 balancing analysis. Thus, the court of appeals in Baker did not

analyze the scope of the privilege or the limitation contained in OEC 504(4)(b)(A). Indeed, all

Oregon appellate cases citing Baker simply follow it as purported precedent on this issue,

without further analysis. See, e.g., McClusky v. City of North Bend, 308 Or. App. 138, 139 n.1

(2020) (noting that it was “bound” by Baker to reject the plaintiff’s argument challenging the

trial court’s decision that the plaintiff “waived” the psychotherapist privilege by alleging “garden

variety” noneconomic damages).

Baker, however, does not have precedential value on the specific question at issue

because it was not disputed, analyzed, and resolved by the Oregon Court of Appeals; it was

merely a statement made in dicta. See Engweiler v. Persson, 354 Or. 549, 557-58 (2013) (“This

court may consider itself bound to follow a prior statutory construction as a matter of stare

decisis. When the court’s prior construction is mere dictum, however, it has no such precedential

effect. See, e.g., Mastriano v. Board of Parole, 342 Or. 684, 692 n.8, 159 P.3d 1151 (2007)

(‘This court has declined to treat a prior interpretation of a statute as authoritative when it is

dictum.’). ‘Dictum’ is short for ‘obiter dictum,’ Latin for ‘something said in passing.’ Black’s

Law Dictionary 1102 (8th ed. 2004). In judicial opinions, it commonly refers to a statement that

is not necessary to the court’s decision.” (citations omitted)).

Plaintiffs cite Schiele v. Montes, 231 Or. App. 43 (2009). In Schiele, the plaintiff brought

a claim for intentional infliction of emotional distress (IIED). Id. at 45. The defendant sought to

take the deposition of the plaintiff’s psychotherapist and the plaintiff objected. Id. The plaintiff

submitted a declaration stating that he does not waive his psychotherapist privilege, he does not

“rely on any medical, mental or emotional condition as an element of any claim in this case,” and

that he will not call his psychotherapist or any other doctor to testify in support of his claims. Id.

The defendant then moved to dismiss the IIED claim, and the trial court dismissed the claim. Id.

at 45-46. The Oregon Court of Appeals explained that the parties’ dispute centered around the

meaning of the term “emotional condition.” Id. at 48. The court explained:

Our standard of review requires us to view the evidence—here, the

[plaintiff’s] declaration—in the light most favorable to plaintiff. So

viewed, the declaration establishes that plaintiff will present

neither expert evidence from a therapist nor evidence of a

diagnosable “emotional condition” to prove his claims. Plaintiff

contends, however, that an emotional condition differs from states

of emotional distress, such as humiliation, fear, and anger, and that

he would introduce evidence of those emotional states at trial.

Because plaintiff’s proposed meaning of “emotional condition” is

plausible and consistent with the overall declaration, the trial court

erred when it granted defendants’ motion.

Id. at 48-49 (emphasis in original).

Schiele provides useful discussion of the difference between an “emotional condition”

and a claim seeking simply emotional distress damages. This could make a meaningful

difference in interpreting the limitation in OEC 504(b)(4)(A). The Oregon Court of Appeals,

however, did not approach the issue as a legal question to be reviewed de novo or as one of

statutory construction of OEC 504(b)(4)(A). Instead, the court viewed it as a factual issue and

applied a deferential standard of review. Thus, that decision, like the other opinions of the

Oregon Court of Appeals discussing OEC 504, is not particularly instructive or helpful, let alone

dispositive.

Opinions in this district court are similarly not particularly instructive or helpful. Most

rely on the decision in Baker v. English to conclude that Oregon has a broad limitation or waiver

of the psychotherapist privilege without considering whether English performed any analysis or

determining whether the term “emotional condition” has any particular meaning under Oregon

law. See, e.g., Wilson v. Decibels of Oregon, Inc., 2017 WL 393602, at *2 (D. Or. Jan. 26, 2017);

Hansen v. Combined Transp., Inc., 2014 WL 1873484, at *3 (D. Or. May 8, 2014). Indeed, the

undersigned stated in dicta in a footnote in a case deciding the contours of the federal

psychotherapist privilege that the Oregon rule appears to follow a broad approach to waiver. See

Swan v. Miss Beau Monde, Inc., 566 F.Supp.3d 1048, 1062 n.12 (D. Or. 2021). U.S. District

Judge Anna Brown, adopting the findings and recommendation of U.S. Magistrate Judge Stacie

Beckerman, on the other hand, distinguished English and concluded that “the mere allegation of

‘emotional distress’ without more does not put Plaintiff's medical condition at issue and does not

constitute a waiver of the physician-patient privilege.” Bauer v. Old Dominion Freight Line,

Inc., 2017 WL 11622025, at *2 (D. Or. Nov. 7, 2017). The Court could not find, and the parties

did not provide, any opinion from a state or federal court performing a statutory construction

analysis of OEC 504(4)(b)(A) on this question. Thus, the Court will perform such an analysis in

considering how the Oregon Supreme Court likely would analyze OEC 504(4)(b)(A) on this

issue.

“[The Court] begin[s] by recalling that OEC 50[4] is a statute, enacted into law by the

legislature. Accordingly, the scope of the privilege—as well as any exceptions to it—is a matter

of legislative intent.” See Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or. 476, 496

(2014) (interpreting OEC 503). To determine legislative intent of an Oregon statute, the Court,

following Oregon’s interpretative methodology, considers the statute’s text, context, and

pertinent legislative history. See State v. Gaines, 346 Or. 160, 171-72 (2009). “If the legislature's

intent remains unclear after examining text, context, and legislative history, the court may resort

to general maxims of statutory construction to aid in resolving the remaining uncertainty.” Id.

at 172.

a. Text and Context

The statute does not define “mental or emotional condition.” It also does not define or

explain what it means for a communication to be relevant to an issue of the emotional or mental

“condition” or what it means for a patient to rely on that “condition” in a legal proceeding.

Further, the Oregon Supreme Court has concluded that the term “mental or emotional condition”

is ambiguous. See Ashley, 312 Or. at 174 (“‘Mental or emotional condition’ may mean quite

different things to a psychiatrist, a psychologist, an internist, a research physician, a social

worker, a patient, a member of the clergy, a legislator, and a judge.”).

The included statutory definition of “psychotherapist,” however, provides some context

for the phrase “mental or emotional condition.” The definition of “psychotherapist” includes a

person who is “[l]icensed, registered, certified or otherwise authorized under the laws of any

state to engage in the diagnosis or treatment of a mental or emotional condition.” Or. Rev. Stat.

§ 40.230(1)(c)(A). This suggests that an emotional or mental condition be something diagnosable

or treatable, as opposed to transient and normal emotions, such as the more “garden variety”

emotional distress feelings of humiliation or anger.

b. Legislative History

The Oregon Supreme Court “considers the legislative commentary to the Oregon

Evidence Code to be part of the Code’s legislative history.” State v. Phillips, 367 Or. 594, 607

(2021). Indeed, the Oregon Supreme Court cited the legislative commentary as support in

discussing the limitation contained in OEC 504(4) when opining on the scope of the physician-

patient privilege. See Hodges, 363 Or. at 611. That court also cited with approval the legislative

commentary to OEC 504 in determining whether “mental or emotional condition” included

treatment for drug addiction. State ex rel. Juv. Dep’t of Lincoln Cnty. v. Ashley, 312 Or. 169,

178-80 (1991).

The legislative commentary to OEC 504(4)(b) describes the litigation limitation as

follows:

An exception applies whenever the mental or emotional condition

of the patient is put in issue. In a criminal proceeding this means

that there is no privilege if a defendant raises the defense of not

responsible by reason of mental disease or defect, or the mitigating

defense of extreme emotional disturbance. In a civil action, it

means there is no privilege in a will contest in which the soundness

of the testator’s mind is challenged. See Rule 511.

Legislative Commentary to OEC 504, reprinted in Laird C. Kirkpatrick, Oregon Evidence

§ 504.02 (7th ed. 2021).

The reference to “Rule 511” in the legislative commentary is to OEC 511, which

addresses the waiver of privilege. See Or. Rev. Stat. § 40.280. This statute provides, in relevant

part, that voluntarily disclosure waiving privilege does not occur by filing suit but “does occur,

as to psychotherapists in the case of a mental or emotional condition and physicians in the case

of a physical condition, upon the holder’s offering of any person as a witness who testifies as to

the condition.” Or. Rev. Stat. § 40.280(4).

The legislative commentary to OEC 511 explains:

The rule makes clear that the mere commencement of litigation

does not constitute disclosure. Nielson v. Bryson, 257 Or. 179, 477

P.2d 714 (1970) (physician-patient privilege not waived by filing

personal injury action). Thereafter, however, waiver can occur

during discovery or at trial, either on direct or cross examination.

* * *

A person, merely by disclosing a subject which the person has

discussed with an attorney or spouse or doctor, does not waive the

applicable privilege; the person must disclose part of the

communication itself in order to effect a waiver. . . . The one

exception to the foregoing principle is contained in the final

sentence of the rule. Where the holder of a privilege offers any

person as a witness who testifies on the subject of the holder’s

physical, mental, or emotional condition, all privileges that might

protect communications on that subject between the holder and a

physician or psychotherapist, as the case may be, are waived.

Legislative Commentary to OEC 511, reprinted in Laird C. Kirkpatrick, Oregon Evidence,

§ 511.02 (7th Ed. 2021). The parties did not provide the Court with any other pertinent

legislative history.

c. Analysis

The text of the litigation limitation is ambiguous, but taken in context with the definition

of a psychotherapist supports a more narrow reading of the phrase “mental or emotional

condition” to mean more than simply any mental or emotional state. The legislative history as

explained in the legislative commentary describes that the litigation limitation was meant to be

parallel to the waiver in Rule 511. Indeed, Rule 511 is specifically cited. Further, the Oregon

courts, including the Oregon Supreme Court, discuss the “nonprivileged” communications under

Rule 504 in terms of the privilege having been “waived.” This further supports the coordinating

of the concepts under Rule 511 (waiver of privilege) with Rule 504(4) (nonprivileged). Waiver

under Rule 511 is narrow.

Thus, considering the text, context, and legislative history, the Court finds that the

Oregon Supreme Court likely would conclude that a litigant does not “rely” on a “mental or

emotional condition” merely by claiming noneconomic damages or “garden variety” emotional

distress such as humiliation and anger. Instead, a person must place his or her mental or

emotional condition at issue such as by asserting a diagnosable condition, proffering a witness

(typically, an expert) who will testify about the claimant’s mental or emotional condition, or

relying on portions of treatment records, diagnoses, or prognoses.

Defendants contend that Dr. Natkin waived his psychotherapist privilege merely by

claiming noneconomic damages. Additionally, Dr. Natkin states that he is not asserting any

diagnosable “mental or emotional condition,” will not introduce any medical or psychological

records, and will not have any expert medical or psychological testimony supporting his claim

for noneconomic damages. Under these circumstances, the Court finds that Dr. Natkin has not

waived his psychotherapist privilege under Oregon law.

B. Objections to the Discovery Order Resolving Plaintiffs’ Motion

1. Waiver

Plaintiffs object that Judge Beckerman improperly considered proportionality and

relevance because the Samaritan Defendants did not raise those objections in their response to

Plaintiffs’ Requests for Production and thus waived them. The response, however, did raise

relevance, burden, and proportionality in the Samaritan Defendants’ general objections, which

they incorporated by reference into their specific objections. The Samaritan Defendants also

noted in their general objections that they are not subject to the jurisdiction of the court in

California and that it was too soon for Plaintiffs to serve discovery, that they lodge preliminary

objections, and that they reserve the right to supplement their objections if and when discovery

becomes appropriate. The Samaritan Defendants also raised relevance, proportionality, and

burden in their letter correspondence with Plaintiffs’ counsel. Plaintiffs’ counsel acknowledged

that the Samaritan Defendants objected based on proportionality in letters to counsel regarding

discovery. Accordingly, Judge Beckerman did not err in finding that the Samaritan Defendants

did not waive these objections.

2. Proportionality and Date and Subject Matter Restrictions

Plaintiffs generally object that Judge Beckerman did not perform the proper

proportionality analysis because she did not consider whether Plaintiffs could obtain the

requested evidence elsewhere or require the Samaritan Defendants to provide specific evidence

of the burden that it would take to produce the requested discovery. Plaintiffs also object to the

date and subject matter restrictions ordered by Judge Beckerman (e.g., limiting disciplinary

records only to the five years that Dr. Natkin would have been in the program, limiting

disciplinary records only to interns and residents, limiting “360 evaluations,” and so forth),

because Defendants failed to provide evidence of burden needed for a proportionality evaluation.

Rule 26 of the Federal Rules of Civil Procedure requires a balancing when discovery is

precluded because it is not proportional to the needs of the case. It is not clear from Judge

Beckerman’s Order that this balancing was performed. In most instances Judge Beckerman noted

her findings regarding the relevance of the requested information but did not expressly make any

findings regarding the other factors relevant to a proportionality determination. Specifically,

Judge Beckerman did not discuss whether the burden on Defendants to produce the information

outweighs its likely benefit. See Fed. R. Civ. P. 26((b)(1). Thus, the Court remands this issue to

Judge Beckerman to perform this analysis regarding proportionality. Additionally, it appears that

Plaintiffs provided new evidence and argument regarding relevancy, which may affect Judge

Beckerman’s relevancy analysis and proportionality balancing.

CONCLUSION

The Court ADOPTS IN PART AND REMANDS IN PART Judge Beckerman’s

Discovery Order (ECF 238). The Court REMANDS to Judge Beckerman for further

consideration Plaintiffs’ informal motion to compel. The Court ADOPTS IN PART Discovery

Orders (ECF 239 and ECF 248) addressing the Samaritan Defendants’ informal motion to

compel. The Court GRANTS IN PART AND DENIES IN PART the Samaritan Defendants’

informal motion to compel as stated in Judge Beckerman’s Orders and this Opinion and Order.

IT IS SO ORDERED.

DATED this 1st day of September, 2022.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge