The opinion
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
J. P., as parent and next )
friend of A.W., a minor, )
)
Plaintiff, )
) CIVIL ACTION NO.
v. ) 2:19cv636-MHT
) (WO)
ELMORE COUNTY BOARD OF )
EDUCATION, )
)
Defendant. )
ORDER
Before the court is plaintiff’s appeal of the
United States Magistrate Judge’s decision granting
defendant’s motion to compel plaintiff’s testimony as
to certain questions related to the psychological or
mental condition of A.W., plaintiff’s son. This appeal
is brought under 28 U.S.C. § 636 and Rule 72 of the
Federal Rules of Civil Procedure. Plaintiff’s counsel
objected to the questions at issue on the ground that
they violated the psychotherapist/patient privilege;
and the magistrate judge ruled that the privilege had
been waived because plaintiff placed A.W.’s mental
condition at issue through the allegations of her
complaint. See Order (Doc. 54) at 5-7. Because the
motion to compel is not a dispositive motion, the court
reviews the magistrate judge’s decision under the
clearly erroneous or contrary-to-law standard. See
Jordan v. Comm’r, Miss. Dep’t of Corrs., 947 F.3d 1322,
1327 (11th Cir. 2020); see also 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a).
The psychotherapist/patient privilege protects
“confidential communications between a licensed
psychotherapist and her patients in the course of
diagnosis or treatment.” Jaffee v. Redmond, 518 U.S.
1, 15 (1996). This privilege exists because
“[e]ffective psychotherapy ... depends upon an
atmosphere of confidence and trust in which the patient
is willing to make a frank and complete disclosure of
facts, emotions, memories, and fears.” Id. at 10.
Allowing patients to speak freely with their
mental-health providers without fear that what they say
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will be disclosed “facilitat[es] the provision of
appropriate treatment for individuals suffering the
effects of a mental or emotional problem.” Id. at 11.
The privilege therefore applies specifically to
“confidential communications made during counseling
sessions.” Id. at 10.
As with so much of the litigation in this case, the
proceedings regarding the psychotherapist/patient
privilege have involved a great deal of heat and very
little light. This dispute has led not only to
defendant’s motion to compel (Doc. 47) and plaintiff’s
motion to review the magistrate judge’s decision (Doc.
57), as well as their coordinate filings in opposition
and replies (Doc. 51, Doc. 53, Doc. 63, & Doc. 64), but
to two separate opposed motions to extend the
dispositive motions deadline while this dispute was
resolved (Doc. 49 & Doc. 55) and an opposed motion to
stay the magistrate judge’s order while the court
considered the present appeal (Doc. 57). All told,
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this issue and its derivative spats have yielded 84
pages of briefing, much of it irate, and a further 67
pages of appended exhibits.
The mass of virtual trees felled and apoplectic ink
spilled over this matter is particularly remarkable
given that none of the deposition questions objected to
actually implicated the psychotherapist/patient
privilege. The five questions that have generated such
sound and fury are as follows:
• “What other conditions [in addition to being
hearing-impaired] does [A.W.] currently have?
• [H]as A.W. had any changes in his medical
condition?
• [Other than the pediatrician and hearing clinic],
[a]re there any other doctors that A.W. sees
related to his conditions?
• Is A.W. currently receiving any counseling
services?
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• Since [2019] has A.W. had any other residential
placement where he’s gone to a facility and stayed
at a facility like he did in the past?”
Order (Doc. 54) at 2 (alterations in original).
None of these questions seek information about
confidential communications between a mental-healthcare
provider and either plaintiff or her son. Insofar as
either plaintiff or her son retains the
psychotherapist/patient privilege, these questions do
not seek to pierce it.
The magistrate judge recognized that the latter
four of these five questions did not implicate the
privilege. See Order (Doc. 54) at 3. It appears the
magistrate judge believed that the first question
listed above did implicate the privilege, although the
order does not explain why. The court disagrees: The
first question did not implicate the privilege any more
than the other questions did. Naming an individual’s
conditions, like acknowledging the fact that a person
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is receiving counseling, does not disclose the kind of
“confidential communications made during counseling
sessions” that are protected by the privilege. Jaffee,
518 U.S. at 10; see also United States v. Portillo, 969
F.3d 144, 182 (5th Cir. 2020) (distinguishing
“confidential communications between a psychotherapist
and a patient” from “the facts of her medical
diagnoses”).
To find otherwise and thus proceed to the waiver
question was clear error. As such, the court will
reverse the magistrate judge’s decision to the extent
that it rules on the merits of the waiver issue. That
issue is not ripe. The court will, however, affirm the
magistrate judge’s decision to the extent that it
allows the deposition of plaintiff to go forward and
requires plaintiff to answer the questions listed
above. Those questions do not seek privileged
information, and plaintiff is obligated to respond to
them. If, in the course of plaintiff’s deposition,
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defense counsel begins to ask questions that do seek
privileged information, the parties may--and surely
will--take once more to their respective battlements to
sort out whether the privilege has been waived.
* * *
Accordingly, it is ORDERED that:
(1) Plaintiff’s motion for relief from the
magistrate judge’s order (Doc. 57) is granted in part
and denied in part. The United States Magistrate
Judge’s order (Doc. 54) is affirmed to the extent that
the deposition of plaintiff J.P. may proceed and that
J.P. is obligated to answer the five questions
previously objected to, as well as any other questions
seeking non-privileged information. In all other
respects, the order is reversed.
(2) Plaintiff’s motion to stay the magistrate
judge’s order (Doc. 57) is denied as moot.
DONE, this the 3rd day of March, 2021.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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