Rule 501: Litigation and Implied Waiver of the Psychotherapist-patient Privilege

• Publication year: 2002
• Pages: 69

31 Colo.Law. 69 Colorado Lawyer 2002.

2002, September, Pg. 69. Rule 501: Litigation and Implied Waiver of the Psychotherapist-Patient Privilege

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69

Vol. 31, No. 9, Pg. 69

The Colorado Lawyer
September 2002
Vol. 31, No. 9 [Page 69]

Specialty Law Columns
Civil Evidence
Rule 501: Litigation and Implied Waiver of the Psychotherapist-Patient Privilege
by Sven C. Collins

This month's article was written by Sven C. Collins, an associate at Holme Roberts & Owen llp - (303) 861-7000 collinss@hro.com. Those interested in submitting an article for publication in Civil Evidence should contact the editor Lawrence M. Zavadil, at (303) 389-4644 or lzavadil@ jcfkk.com

Q:Does a claim for damages for mental or emotional distress result in implied waiver of the psychotherapist-patient privilege?

A:It depends whether the claim is asserted under state or federal law. If only Colorado state law claims are asserted, the privilege is not waived if the defendant makes a generic claim for mental or emotional distress. However, if mental or emotional distress damages are sought in connection with a federal cause of action, the privilege likely will be waived.

Assumed Facts

Jane Employee was discharged by Mega Corporation when she could no longer perform her job due to a debilitating back condition. Jane was vocally opposed to the termination. She accused her supervisor, who had announced the termination, of discriminating against her and acting out of personal malice. The accusation incensed Jane's supervisor, who followed Jane into the company parking lot and began arguing with her. During their heated discussion, the supervisor pushed Jane to the ground, breaking her arm.

Jane filed suit in federal court against Mega for discrimination under the Americans With Disabilities Act ("ADA") and against her supervisor for battery. In connection with both claims, Jane alleged damages for mental pain and suffering and emotional distress, among other damages. The U.S. District Court for the District of Colorado declined to exercise supplemental jurisdiction over the state law battery claim. Jane then filed the battery claim against her supervisor in state court.

During discovery in each action, the defendant seeks disclosure of Jane's records of treatment by a psychotherapist. Jane refuses on the basis of psychotherapist-patient privilege. How is the court likely to...