DISCOVERY AND COMMON WRITTEN DISCOVERY ISSUES: A PLAINTIFF’S PERSPECTIVE

DAVID L. WILEY Gibson Wiley PLLC

1700 Commerce Street, Suite 1570 Dallas, Texas 75201 Tel. (214) 522-2121 Fax (214) 522-2126

Email: david@gwfirm.com

State Bar of Texas 21st ANNUAL

ADVANCED EMPLOYMENT LAW COURSE January 17 - 18, 2013

Dallas

CHAPTER 16

1700 Commerce Street, Suite 1570, Dallas, Texas 75201-5302 | Telephone 214.522.2121 | Facsimile 214.522-2126 | www.gwfirm.com

David L. Wiley Gibson Wiley PLLC

1700 Commerce Street, Suite 1570 Dallas, Texas 75201-5302

Tel. (214) 522-2121 Fax (214) 522-2126

Email: david@gwfirm.com

David is a principal in Gibson Wiley PLLC, a law firm dedicated to representing people in disputes with current or former employers. He serves on the Council governing the Labor and Employment Law Section of the State Bar of Texas. He was previously associated with the Commercial Litigation Section of Jenkens & Gilchrist, P.C., in Dallas, Texas and the Litigation Section of King & Ballow in Nashville, Tennessee.

David is a former two-year law clerk to the Honorable Mary Ann Vial

Lemmon of the United States District Court for the Eastern District of Louisiana in New Orleans. He is a graduate of the St. Mary’s University School of Law in San Antonio, where he served as a Comment Editor on the Editorial Board of the St. Mary’s Law Journal. He is also a graduate of Stephen F. Austin State University in Nacogdoches, Texas.

David is licensed to practice law in Texas, Louisiana, and Tennessee. For

three consecutive years, the Texas Super Lawyers edition of Texas Monthly Magazine listed him as a “Rising Star” in the field of Plaintiff’s Employment Litigation.

He has represented numerous employees in various types of employment

litigation and speaks often on employment law.

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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................................................. 1

II. NEW FJC PROTOCOLS ................................................................................................................................... 1

III. DRAFTING REQUESTS .................................................................................................................................. 1

IV. DRAFTING OBJECTIONS .............................................................................................................................. 2

V. TAX RETURNS ................................................................................................................................................ 3

VI. MEDICAL RECORDS ...................................................................................................................................... 3

VII. OTHER EMPLOYER RECORDS .................................................................................................................... 6

VIII. CONCLUSION .................................................................................................................................................. 8

POWERPOINT PRESENTATION ................................................................................................................................ 9

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DISCOVERY AND COMMON WRITTEN DISCOVERY ISSUES: A PLAINTIFF’S PERSPECTIVE I. INTRODUCTION

In employment law cases, there are common disputes concerning discovery requests a company makes of an employee. For example, requests for tax records, for medical records, and for subsequent and prior employer personnel records. Likewise, there are common disputes about the ways in which written discovery requests and objections are drafted. This paper is intended to address such issues — by explaining how courts have done so — and thereby, provide a framework for resolving these common disputes more efficiently. II. NEW FJC PROTOCOLS

In November of 2011, the Federal Judicial Center published its “Pilot Project Regarding Initial Discovery Protocols for Adverse Employment Cases Alleging Adverse Action” (the “Protocols”).1 The Protocols are part of a pilot project in which various individual federal courts may require — by standing order — early disclosure of certain information in some employment cases.

For example, the Protocols might require Plaintiffs to produce certain sets of documents — such as communications with potential employers, claims for unemployment, etc. — within 30 days of the Defendant filing a responsive pleading or motion. Conversely, the Protocols might require Defendants to produce certain sets of documents — such as those relied on to make an employment decision at issue, job descriptions, arbitration agreements, etc. — also within that same 30 day period. III. DRAFTING REQUESTS Often, a party seeks to discover a set of documents that bear some relation to a subject matter — rather than a very specific document like a particular contract or letter. In drafting requests, carefully describe (1) the relationship and (2) the subject matter. On describing the relationship, try to avoid using various iterations of an omnibus phrase like “related to”: Request No. 1: Please produce all documents relating to . . . [subject matter]. 1 They are currently published online here:

http://www.fjc.gov/public/pdf.nsf/lookup/DiscEmpl.pdf/$file/DiscEmpl.pdf

There are numerous federal court opinions condemning the use of such phrasing.2 So use words and phrases of greater limitation. Suppose you want documents that mention a particular word or name. Consider a request for documents that “contain” or “reference” that word or name — rather than a request for documents “relating to” the name or word:

Request No. 1:

Please produce all documents referencing X.

rather than . . .

2 See, e.g., Western Resources, Inc. v. Union Pacific R.R. Co., Civil Action No. 00-2043-CM, 2002 WL 1822435, *1 (D. Kan. July 23, 2002) (“Courts may find requests overly broad when they are ‘couched in such broad language as to make arduous the task of deciding which of numerous documents may conceivably fall within [their] scope.’ Use of broad terms such as “relate to” or “relating to” provides no basis upon which an individual or entity can reasonably determine what documents may or may not be responsive. . . . Despite the overly broad nature of [the request] on its face due to the “relate to” language, [responding party] has a duty under the federal rules to respond to the extent that discovery requests are not objectionable. The Court will not compel further response, however, when inadequate guidance exists to determine the proper scope of a request for discovery.”); Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 665-66 (D. Kan. 1999) (concluding that a document request using the phrase “relating to” rendered the document request so non-specific and overly broad that no response was required “when inadequate guidance exists to determine the proper scope of a request for discovery”); Doricent v. American Airlines, Inc., Civil Action No. 91-12084Y, 1993 WL 437670, *10 n.5 (D. Mass. Oct. 19, 1993) (“The phrase ‘relating to’ is, of course, the darling of young litigators—those lawyers who abuse the discovery and trial process by substituting harassment for thought. So vague and imprecise is the usage, however, that it has frequently been held improper when found in document requests since it does not apprise the recipient of the scope of the documents sought to be produced.”); Commonwealth of Mass. v. United States Dep’t of Health & Human Servs., 727 F. Supp. 35, 36 n.2 (D. Mass. 1989) (“A request for all documents ‘relating to’ a subject is usually subject to criticism as overbroad since life, like law, is a ‘seamless web,’ and all documents ‘relate’ to all others in some remote fashion. Such a request thus unfairly places the onus of non-production on the recipient of the request and not where it belongs—upon the person who drafted such a sloppy request.”); Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 60 (D.N.J. 1985) (“A literal reading of [the discovery request] would require the defendant to provide a copy of every document in its possession, since all of these documents could conceivably ‘refer or relate’ to plaintiff’s employment. Such a request is too broad and ambiguous . . . .”).

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Request No. 1:

Please produce all documents relating to X.

Of course, courts may show more tolerance for use of such omnibus phrases if the subject matter is described narrowly.3 IV. DRAFTING OBJECTIONS It is common for a party responding to discovery to assert a number of objections then provide responses “subject to and without waiving” the objections:

Objections:

Defendant objects to Document Request No. 1 because it is ___, ____, and ___. Subject to and without waiving these objections, see documents attached.

There are a number of cases condemning this sort of response.4 Federal courts in Florida have gone so far

3 See Johnson v. Kraft Foods North Am., Inc., 238 F.R.D. 648, 658 (D. Kan. 2006) (“Defendant next contends this request is facially overly broad because it uses the omnibus term ‘concerning.’ Defendant correctly observes that this Court has held on several occasions that a document request may be overly broad on its face if it uses an omnibus term such as ‘relating to,’ ‘pertaining to,’ or ‘concerning.’ That rule, however, applies only when the omnibus term is used with respect to a general category or broad range of documents. As this Court has previously noted, a request may be overly broad on its face ‘if it is couched in such broad language as to make arduous the task of deciding which of numerous documents may conceivably fall within its scope.’ A request seeking documents ‘pertaining to’ or ‘concerning’ broad range of items ‘requires the respondent either to guess or move through mental gymnastics ... to determine which of many pieces of paper may conceivably contain some detail, either obvious or hidden, within the scope of the request.’ When, however, the omnibus phrase modifies a sufficiently specific type of information, document, or event, rather than large or general categories of information or documents, the request will not be deemed objectionable on its face.”). 4 See, e.g., Pro Fit Mgmt., Inc. v. Lady of America Franchise Corp., No. 08-CV-2662 (D. Kan. Feb. 25, 2011) (“Moreover, the Court concludes that because Defendant responded to Document Request Nos. 5 and 6 ‘subject to’ its objections, it is not clear whether Defendant has actually produced all responsive documents. . . . Consequently, Plaintiff and the Court are left to guess whether all

as to say this sort of response can waive the objections made in their entirety.5 So if you are withholding certain categories of documents pursuant to an objection asserted but producing others, be explicit. For example, suppose the brunt of an objection is that the opposing party is seeking policies covering a ten year period. You believe the other side should only be permitted to review policies covering a five year period. Consider explaining the limitation:

Objections: Defendant objects to Document Request No. 1 because it is ___, ____, and ___. Limited Response: Pursuant to Federal Rule of Civil Procedure 34(b), Defendant limits its response to providing the requested written policies for the years 2007, 2008, 2009, 2010, and 2011. With that limitation, Defendant states that such documents are enclosed herewith bearing Bates stamp numbers 00001 to 00300.

documents have been produced, or whether Defendant has withheld any documents on the grounds that they are not relevant.”); Athridge v. Aetna Casualty & Surety Co., 184 F.R.D. 181, 190 (D.D.C. 1998) (“party's statement regarding production of `relevant, non-privileged' documents ‘subject to and without waiving’ [its] objection[s], serves only to obscure potentially discoverable information and provides no mechanism for either plaintiffs or the Court to review defendant's decisions” and “This type of answer hides the ball. It leaves the plaintiff wondering what documents are being produced and what documents are being withheld. Furthermore, it permits the defendant to be the sole arbiter of that decision. Such an objection is really no objection at all as it does not address why potentially responsive documents are being withheld.”); see also W. Mark Cotham, Why Not Have Responses To Document Requests That Make Sense?, THE HOUSTON LAWYER, Jan./Feb. 2006, at p. 27 (“No Texas court has directly addressed the use of such a ‘subject to objections’ statement. The federal courts that have addressed this practice, however, have soundly berated it”); see also FED. R. CIV. P. 34(b)(2)(C) (“An objection to part of a request must specify the part and permit inspection of the rest.”); Tex. R. Civ. P. 193.2(a) (“. . . . The party must state specifically the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request.”). 5 See, e.g.,Tardif v. People for the Ethical Treatment of Animals, No. 2:09-cv-537 (M.D. Fla. April 29, 2011) (citing cases). .

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V. TAX RETURNS A company sued by a former employee requests the employee’s tax returns. Federal and Texas state courts have found that public policy encouraging tax payers to file complete and accurate tax returns could be impaired by unnecessary public disclosure.6 A majority of federal courts apply a qualified privilege to a request for discovery of tax returns — requiring assessment of two factors: (1) relevance and (2) compelling need.7 Texas state courts apply a similar analysis, requiring that the party seeking tax returns show (1) relevance and (2) materiality.8 In an employment law case, a typical asserted justification for seeking an employee’s tax records is to gather evidence of mitigation via subsequent

6 See, e.g., Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975) (quashing subpoena seeking tax returns and stating: “a public policy against unnecessary public disclosure arises from the need, if the tax laws are to function properly, to encourage taxpayers to file complete and accurate returns.”); Eastern Auto Distribs., Inc. v. Peugeot Motors of Am., Inc., 96 F.R.D. 147, 148-49 (E.D. Va. 1982) (“a ‘qualified’ privilege emerges from the case law that disfavors the disclosure of income tax returns as a matter of general federal policy.”); In re Brewer Leasing, Inc., 255 S.W.3d 708, 714 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (“The reason tax returns are treated differently from other discovery requests of financial matters is because federal income tax returns are considered private and the protection of that privacy is determined to be of constitutional importance.”). 7 See, e.g., EEOC v. Ceridian Corp., 610 F. Supp. 2d 995 (D. Minn. 2008) (“[A] preponderance of authorities set out a two-part standard for deciding whether tax returns should be disclosed. First, a court examines whether the returns are relevant. If so, then the question becomes whether there is a compelling need for the returns.”); Interstate Narrow Fabrics, Inc. v. Century USA, Inc., No. 1:02 CV 00146, 2004 WL 444570 at *2 (M.D.N.C. Feb. 24, 2004) (“The majority rule that has emerged from federal case law is that a two-prong test should be applied to determine when the qualified privilege protecting income tax returns is overcome.” and “Under this test, tax returns are discoverable if (1) they are relevant to a matter in dispute; and (2) they are needed, because the information is not available from other sources. The burden to show that the tax returns are relevant lies with the party seeking disclosure, while the burden to identify an alternate source of the information lies with the resisting party.”). 8 See In re Patel, 218 S.W.3d 911, 918 (2007) (Tex. App.—Corpus Christi 2007, orig. proceeding) (“Once an objection is asserted, as in this case, . . . , the party seeking discovery of the tax returns has the burden of showing relevance and materiality.”).

earnings.9 If the employee will produce post-termination earnings information — such as W-2s and 1099s — a court may find that the employer cannot show a compelling need for the returns or that they are material.10 VI. MEDICAL RECORDS A company sued by a former employee requests the employee’s medical records. Under Texas law,11 this may implicate the Physician-Patient Privilege12 and

9 See, e.g., EEOC v. Ceridian Corp., 610 F. Supp. 2d 995 (D. Minn. 2008) (“For instance, where adverse employment actions led to demotions or dismissal, then pecuniary damages may be calculated from the amount by which the employee's earnings were reduced. . . . And where the employee is terminated, that person must mitigate damages, and thus post-termination earnings may show the employee's efforts to satisfy this obligation.”). 10 See EEOC v. Ceridian Corp., 610 F. Supp. 2d 995 (D. Minn. 2008) (“When looking at whether there is a compelling need, a court examines whether the information in the returns is readily obtainable from another source.” and “Because the EEOC provided [Defendant] with W-2s and 1099s, this Court is satisfied that the information about [Employee]'s earnings is readily available from other sources.”); In re Patel, 218 S.W.3d at 919 (“Federal income tax returns are not material if the same information can be obtained from another source.”). 11 Note: For a case in federal court based on diversity jurisdiction, the state-law privileges noted herein apply. See Int'l Ins. Co. v. RSR Corp., 426 F.3d 281, 299 n.26 (5th Cir. 2005) (“The availability of a privilege in a diversity case is governed by the law of the forum state.”); FED. R. EVID. 501 (“Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.”). For a case in federal court in which both federal and state claims exist, however, the question of whether the state-law privileges noted herein apply involves a more difficult analysis and is not yet entirely settled. See Guzman v. Memorial Hosp. Sys., Civil Action No. H-07-3973 (S.D. Tex. Feb. 20, 2009) (discussing precedent, noting that “Neither the Supreme Court nor the Fifth Circuit has resolved this issue. The Supreme Court recognized the problem but declined to decide the appropriate rule.”, and determining that majority of courts apply a relevance test via which the state privileges apply if the information to which the privilege might apply is only relevant to the state law claims). 12 See generally TEX. R. EVID. 509.

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the Mental Health Information Privilege.13 The Physician-Patient privilege shields from discovery physician-patient communications and medical records.14 Similarly, the Mental Health Information Privilege shields from discovery communications between patients and certain mental health professionals15 and treatment records.16 Both privileges contain an identical litigation exception:

as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party’s claim or defense.17

In interpreting whether a condition is one relied upon “as part of the party’s claim or defense,” the Supreme Court of Texas notes that the existence of the condition itself must be an ultimate issue with legal significance for the claim or defense.18 As the Court explained: 13 See generally TEX. R. EVID. 510. 14 See TEX. R. EVID. 509(c) (“In a civil proceeding: (1) Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed. (2) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed. . . .”). 15 See TEX. R. EVID. 510(a)(1) (“‘Professional’ means any person: (A) authorized to practice medicine in any state or nation; (B) licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any mental or emotional disorder; (C) involved in the treatment or examination of drug abusers; or (D) reasonably believed by the patient to be included in any of the preceding categories.”). 16 See generally TEX. R. EVID. 510(b) (“General Rule of Privilege. (1) Communication between a patient and a professional is confidential and shall not be disclosed in civil cases. (2) Records of the identity, diagnosis, evaluation, or treatment of a patient which are created or maintained by a professional are confidential and shall not be disclosed in civil cases. (3) Any person who received information from confidential communications or records as defined herein, other than a representative of the patient acting on the patient's behalf, shall not disclose in civil cases the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. . . . .”). 17 See TEX. R. EVID. 509(e)(4) (emphasis added); TEX. R. EVID. 510(d)(5) (emphasis added) 18 See R.K. v. Ramirez, 887 S.W.2d 836, 843 (Tex. 1994) (“To summarize, the exceptions to the medical and mental

Communications and records should not be subject to discovery if the patient’s condition is merely an evidentiary or intermediate issue of fact, rather than an ‘ultimate’ issue for a claim or defense, or if the condition is merely tangential to a claim rather than ‘central’ to it. The scope of the exception should be tied in a meaningful way to the legal consequences of the claim or defense. This is accomplished, we believe, by requiring that the patient’s condition, to be a ‘part’ of a claim or defense, must itself be a fact to which the substantive law assigns significance. For example, an allegation that a testator is incompetent is an allegation of a mental ‘condition,’ and incompetence, if found, is a factual determination to which legal consequences attach: the testator's will is no longer valid.19

In reaching this decision, the Court expressly rejected a “relevance” standard:

. . . [J]ust because a condition may be ‘relevant’ to a claim or defense does not mean a party ‘relies upon the condition as a part of the party’s claim or defense.’ Because relevance is defined so broadly, virtually any litigant could plead some claim or defense to which a patient’s condition could arguably be relevant and the privilege would cease to exist. We reject this [interpretation] . . . .20

The Court further explained that a “relevance” test would ignore the fundamental purpose of evidentiary privileges, which is to “preclude discovery and admission of relevant evidence under prescribed circumstances.”21 The Court noted that whether a condition is a part of a claim or defense should be determined on the face of the pleadings, without reference to the evidence that is allegedly privileged.22 Presumably, this means that courts are not to engage in an in camera inspection of

health privileges apply when (1) the records sought to be discovered are relevant to the condition at issue, and (2) the condition is relied upon as a part of a party's claim or defense, meaning that the condition itself is a fact that carries some legal significance.”). 19 Id. at 842-43. 20 Id. at 842. 21 Id. 22 Id. at 843 n.7 (“Whether a condition is a part of a claim or defense should be determined on the face of the pleadings, without reference to the evidence that is allegedly privileged.”).

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the records or communications themselves to determine applicability of the privileges.23 Texas appellate courts have determined that a party’s claim to have suffered mental anguish or emotional distress as a result of an unlawful act is not, standing alone, sufficient for the litigation exception to apply.24 For example, the Austin Court of Appeals concluded that mental health records were not discoverable in a negligence case arising from a rape.25 The plaintiff claimed mental anguish including a fear of men who resembled the rapist, feeling uneasy around men, feeling jumpy and anxious when touched, and having trouble sleeping.26 The Court concluded that neither the mental anguish claim nor the symptoms made the plaintiff’s mental condition part of a claim or defense:

To hold otherwise would suggest that every time a plaintiff raises a claim for past and future mental anguish damages her mental condition would be in issue and thereby all mental health records would be discoverable. This proposition is contrary to the express holding of the Texas Supreme Court in [Coates v. Whittington].”27

23 See id. (“Presumably, an in camera inspection could reveal that records are entirely irrelevant or highly prejudicial. In either case, the nature of the evidence has no bearing on the issue of whether the patient's condition, if found, is a fact to which the law assigns significance.”). 24 See, e.g., In re Williams, No. 10-08-00364-CV, 2009 WL 540961,*5 (Tex. App.—Waco Mar. 4, 2009, orig. proc.) (“A claim for mental anguish or emotional distress will not, standing alone, make a plaintiff's mental or emotional condition a part of the plaintiff's claim.”); In re Pennington, No. 2-08-00233-CV, 2008 WL 2780660 (Tex. App.—Fort Worth July 16, 2008, orig. proc.) (same); see also In re Toyota Motor Corp., 191 S.W.3d 498, 502 (Tex. App.—Waco 2006, orig. proc.) (plaintiff’s allegation of suffering “emotional shock” did not make the plaintiff’s mental condition part of a claim or defense); In re Chambers, No. 03-02-00180-CV, 2002 WL 1378132, *1-5 (Tex. App.—Austin 2002, orig. proc.) (plaintiff’s mental anguish claim, admitted psychiatric treatment, admitted past depression, and symptoms of stress, duress, difficulty sleeping, nightmares, anxiety attacks, breakdowns, difficulty breathing, and heart palpitations did not make the plaintiff’s mental condition part of a claim or defense). 25 In re Doe, 22 S.W.3d 601 (Tex. App.—Austin 2000) (orig. proc.). 26 Id. at 610. 27 Id.

Accordingly, the Austin Court of Appeals determined that the litigation exception did not apply.28 Once a court determines that one of these privileges applies — and that the litigation exception does not — courts may still analyze the “offensive use” doctrine. The “offensive use” doctrine is independent of the litigation exception.29 To pierce privilege under the “offensive use” doctrine, one must show that the other party is (1) seeking affirmative relief; (2) using the privilege to protect information that is “outcome determinative” of the cause of action asserted; and (3) the protected information is not otherwise available.30 Texas courts have determined that, to be outcome determinative, the privileged information must “‘go to the very heart of the affirmative relief sought’” — “‘mere relevance is insufficient.’”31 For cases in federal court concerning only federal claims, these state-law privileges may not apply.32 In that case, only federal common law privileges might apply.33 Although the United States Supreme Court has yet to recognize a physician-patient privilege under the

28 See id. 29 See R.K. v. Ramirez, 887 S.W.2d 836, 841 (Tex. 1994) (“[T]he offensive use doctrine is independent from and unrelated to the privilege exception for patient-litigants stated in Rules 509(d)(4) and 501(d)(5).”). 30 See In re Williams, No. 10-08-00364-CV, 2009 WL 540961 (Tex. App.—Waco Mar. 4, 2009, orig. proc.) (“This doctrine consists of three elements: (1) a party must be seeking affirmative relief; (2) the party is using a privilege to protect outcome determinative information; and (3) the protected information is not otherwise available to the defendant.”); see also Republic Ins. Co. v. Davis, 856 S.W.2d 158 (Tex. 1993) (“First, before a waiver may be found the party asserting the privilege must seek affirmative relief. Second, the privileged information sought must be such that, if believed by the fact finder, in all probability it would be outcome determinative of the cause of action asserted. Mere relevance is insufficient. A contradiction in position without more is insufficient. The confidential communication must go to the very heart of the affirmative relief sought. Third, disclosure of the confidential communication must be the only means by which the aggrieved party may obtain the evidence. If any one of these requirements is lacking, the trial court must uphold the privilege.”). 31 See id. (quoting Davis). 32 See Guzman v. Memorial Hosp. Sys., Civil Action No. H-07-3973 (S.D. Tex. Feb. 20, 2009) (“It is well established that federal privilege law governs in a federal question case involving only federal law and that state privilege law applies in a diversity case involving only state law. “). 33 See id.

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federal common law,34 it has recognized a psychotherapist-patient privilege.35 This privilege is subject to waiver — but courts apply varying analyses on what constitutes waiver of the privilege.36 One court addressed what it viewed as four analytical variations:

Those courts taking a broad view of waiver of the psychotherapist-patient privilege have held that when a party makes a claim for emotional distress damages, the privilege has been waived in its entirety. . . . . Courts adopting a narrow approach to waiver, . . . , conclude that the privilege is waived only when the plaintiff introduces privileged communications in evidence either directly or by calling the particular psychotherapist as a witness. . . . Other courts have analogized the psychotherapist-patient privilege to the attorney-client privilege in what has been characterized as a third approach, and have held that the same principles of implied waiver should apply to both. . . . Those courts held that the psychotherapist-patient privilege is waived when the plaintiff has taken the affirmative step in the litigation to place his diagnosis or treatment in issue, by offering evidence of psychiatric treatment or medical expert testimony to establish his claim of emotional harm. . . . . However, the mere assertion that the defendant's alleged misconduct caused emotional harm is insufficient to waive the privilege. . . . Cases have also recognized a

34 See, e.g., Whalen v. Roe, 429 U.S. 589, 602 n. 28 (1977) (“The physician-patient evidentiary privilege is unknown to the common law.”). 35 See Jaffe v. Redmond, 518 U.S. 1, 12 (1996) (“That it is appropriate for the federal courts to recognize a psychotherapist privilege under Rule 501 is confirmed by the fact that all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege. . . . Because we agree with the judgment of the state legislatures and the Advisory Committee that a psychotherapist patient privilege will serve a ‘public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth,’ . . . , we hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence.”). 36 See Merrill v. Waffle House, Inc., No. 3:04-CV-888-M (N.D. Tex. Feb. 2, 2005) (“No court in this circuit appears to have addressed the issue of when a party waives the psychotherapist-patient privilege. The lower federal courts which have addressed the issue are split.”).

fourth ‘middle approach’ which holds that a mere request for damages for ordinary, garden variety claims of mental anguish or emotional distress, as opposed to a cause of action based upon emotional distress, does not place a party's mental condition at issue, and the privilege is not waived. . . . ‘Garden variety’ emotional distress claims are contrasted with complex claims, such that result in a specific psychiatric disorder or prevent a person from working.37

Of course, even if waiver is found or a privilege is otherwise unavailable, there may remain questions of whether the medical records are discoverable under the generally applicable discovery standards.38 VII. OTHER EMPLOYER RECORDS A company sued by a former employee seeks to subpoena subsequent employers for personnel records kept on the employee. A typical asserted justification for such discovery is two-fold: (1) to seek evidence of mitigation and (2) to seek after-acquired evidence. Courts have noted that a plaintiff in an employment case has an interest in personnel records that is worthy of special protection.39 In addressing that interest, courts have cited a need to guard against the potential for abuse. As one court explained:

If filing what is, by all appearances to the court, a fairly routine case alleging individual employment discrimination opens up the prospect of discovery directed at all previous, current, and prospective employers, there is a

37 Id. (internal citations omitted). 38 See, e.g., Burrell v. Crown Central, 177 F.R.D. 376, 383-84 (E.D. Tex. 1997) (addressing whether medical records are “relevant” and therefore, discoverable, within the meaning of Federal Rule of Civil Procedure 26); see generally Sherry L. Ruschionii, Confidentiality of Mental Health Records in Federal Courts: The Path Blazed by Sabree v. United Brotherhood of Carpenters & Joinders of America, Local No. 33, 33 NEW. ENG. L. REV. 923 (2003-04). 39 See Smartix Intern., L.L.C. v. Garrubbo, Romankow & Capese, P.C., Civil Action No. 1:06-cv-01501, 2007 WL 4166035 at *2 (S.D.N.Y. Nov. 20, 2007) (“[Plaintiff] ‘clearly has a personal right with respect to the information contained in his employment records with other companies’ . . . I find that justice requires, in order to protect [Plaintiff] from annoyance, embarrassment, and oppression, that discovery not be had into those personnel records.”); cf. Cook v. Foundation Coal West, Inc., Civil Action No. 1:07-cv-00192 (D. Wy. June 3, 2008) (“Defendant has not demonstrated sufficiently that this presumption disfavoring subpoenas of current employers should be overcome”).

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serious risk that such discovery can become ‘an instrument for delay or oppression.’40

Courts have cited the potential for oppression, particularly in the context of balancing burden or expense of proposed discovery versus its likely benefit, in disallowing this type of discovery.41

Federal courts have ruled that neither performance records nor conduct at other employers is reasonably calculated to lead to the discovery of admissible evidence.42 As one court explained:

The Court finds Defendants’ assertion that ‘if Dr. _____’s ... performance at his prior residencies was poor, such information would support [Defendant]’s position that its decision not to advance him to a fifth-year position was for legitimate, business-related reasons, and not discrimination’ amounts to little more than a contention that if Plaintiff performed poorly during his residency at the Hospital of St. Raphael’s, he most likely performed poorly during his tenure with Defendants as well. The Court finds that Plaintiff’s performance during his prior residency bears no relevance to his actual work performance with Defendants. Further, his prior employment records are not likely to lead to the discovery of admissible evidence — such evidence as Defendants describe it would be inadmissible under Federal Rule of Evidence 404(a), which provides that ‘[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith . . . .’43

40 See Perry v. Best Lock Corp., No. 98-cv-0936, 1999 WL 33494858, *2 (S.D. Ind. Jan. 21, 1999) (quashing 19 non-party subpoenas). 41 See id. at *3 (“Under Rule 26(b)(2), this court must weigh the likely the [sic] burden or expense of the proposed discovery and its likely benefit. The court must take into account ‘the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.’ The last factor is critical here.”). 42 See Ireh v. Nassau Univ. Med. Ctr., No. CV 06-09, 2008 WL 4283344, *5 (E.D.N.Y. Sept. 17, 2008) (unpublished) (quashing subpoenas as to performance records with former employers); cf. Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1511 (D.C. Cir. 1995) (evidence of plaintiff’s difficulties with interpersonal relationships at prior job should not have been admitted). 43 Ireh, No. CV 06-09, 2008 WL 4283344, at *5.

Courts have rejected theories about what personnel records might reveal — as one court explained in the context of a discrimination case and subpoenas seeking employment records from an immediately prior employer:

However, the Plaintiff has not placed her entire employment history at issue, but rather only her employment with the Defendant. While it is certainly theoretically possible that records from a previous or subsequent employer might be relevant in an employment discrimination case, such a theoretical possibility does not make the records discoverable. . . . [A]bsent a showing that the subpoenas are reasonably calculated to lead to the discovery of admissible evidence, the Defendant is simply embarking on the proverbial fishing expedition . . . [T]he Defendant simply is not entitled to amass a collection of documents in hopes of finding something useful.44

Courts have rejected the asserted after-acquired evidence doctrine justification. At the birth of the after-acquired evidence doctrine, the United States Supreme Court warned against allowing employment background discovery:

The concern that employers might as a routine matter undertake extensive discovery into an employee’s background or performance on the job to resist claims under the Act is not an insubstantial one.45

Other courts have put teeth into this warning: “The Court’s comment about potential abuse clearly implies that discovery is not warranted for the sole purpose of developing a possible after-acquired evidence defense.”46 On the asserted need for evidence of mitigation: The duty to mitigate is not one of finding work consistent with historical education, training, or work experience. Instead, it is one of seeking employment “substantially equivalent” to the particular employment position from which an employee was terminated. Accordingly, wage records, fringe benefit records, and job descriptions, may well be discoverable from 44 Woods v. Fresenius Med. Care Group of N. Am., No. 1:06-CV-1804-RLY-WTL, 2008 WL 151836, *2 (S.D. Ind. Jan. 16, 2008) (entry on motion to quash) (unpublished). 45 McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 363 (1995). 46 Perry v. Best Lock Corp., No. 98-c-0936, 1999 WL 33494858, *3 (S.D. Ind. Jan. 21, 1999).

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subsequent employers — while open-ended subpoenas for “all records” concerning the employee may not be. On logistics, it may be best to address the issue early and agree to a protocol concerning scope and logistics of retrieval. Early agreement on scope may resolve time-consuming, hectic, and expensive motion-to-quash practice. Consider also the problem of third-parties under-producing, over-producing, etc. At least one Texas state court implemented a procedure to address the issue. It required that the records subpoenaed from other employers be sent directly to the employee’s counsel alone for preparation and disclosure to the employer of a log of the information. The benefit to both sides of such a procedure is that it may make the dispute less hypothetical. At the time the subpoena is served, neither Plaintiff nor Defendant likely has the documents. Both may be briefing motions to compel / quash / for protective order without actually knowing what is in the documents being fought over. If the Plaintiff has the opportunity to review the third-party documents first, it may be that the Plaintiff will volunteer to turn some or all of them over — thereby narrowing the disputed issues. Conversely, after reviewing a log of documents a Defendant should be better positioned than it would be without it to articulate reasons for needing production of certain documents and may also be able to more narrowly select which it wants produced. For any subsequently needed in camera inspection a the log procedure should provide the Court with a helpful organizational tool in addressing the dispute. VIII. CONCLUSION

Many of these disputes might be resolved [or at least narrowed] via an interactive process — one that might be used even when there may be animosity in the relations between counsel.

e-Discovery: 4 Ethical Issues In Employment Litigation

DAVID L. WILEYGibson Wiley PLLC

State Bar of Texas21ST ANNUAL

ADVANCED EMPLOYMENT LAW COURSE

January 17, 2013

1. Technological Competence

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1. Technological CompetenceClient-Lawyer Relationship

ABA Rule 1.1 Comment 8:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Highlighted Language: August 2012

2. Understanding Best Practices

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3. Cooperative Model of Discovery

The Sedona Conference Cooperation Proclamation:

. . . “Cooperation does not conflict with the advancement of their clients’ interests – it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.” . . . .

3. Cooperative Model of Discovery

The Ever-Increasing Importance of FRCP 26(f)

“The [cooperative] approach should be started early in the case. It is difficult or impossible to unwind procedures that have already been implemented.”

Kleen Products, LLC v. Packaging Corp. of Amer., Case 1:10-cv-05711 (N.D. Ill. Sept. 28, 2012)

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3. Cooperative Model of Discovery

ESI Considerations re FRCP 26(f) Conference

ID Types and Sources (Lucrative Subsets First) Targeting Preservation Methodologies for Culling Formats for Production Protective Orders

4. Possession, Custody, Control

Bring Your Own Device

Cell PhonesTabletsLaptops

Social Media Storage

Discovery and Common Written Discovery Issues: A Plaintiff’s Perspective Chapter 16

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e-Discovery: 4 Ethical Issues In Employment Litigation

DAVID L. WILEYGibson Wiley PLLC

State Bar of Texas21ST ANNUAL

ADVANCED EMPLOYMENT LAW COURSE

January 17, 2013

Discovery and Common Written Discovery Issues: A Plaintiff’s Perspective Chapter 16

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