Blake v. Dowe
Although confidential communications between a psychotherapist and patient generally are protected from compelled disclosure, the privilege can be waived. The plaintiff sued the defendant, alleging that the defendant violated her rights under the First Amendment, and she experienced emotional distress. The defendant filed a motion to compel the plaintiff's disclosure of psychiatric or counseling records. The defendant argued that the plaintiff's complaint alleged emotional distress, because the complaint asserted that the plaintiff "has suffered and will in the future suffer, inconvenience, annoyance and emotional distress." The assertion of a garden variety emotional-distress claim does not waive the patient-psychotherapist privilege, pursuant to In Re: Sims, a 2008 decision of the U.S. Court of Appeals for the 2nd Circuit. The court found that the plaintiff only asserted a "garden variety" emotional-distress claim. Although the plaintiff signed a medical release, to permit the disclosure of medical documents, the plaintiff withdrew the medical release when the defendant sought the plaintiff's counseling records. The court found that the plaintiff did not waive the patient-psychotherapist privilege, and it denied the defendant's motion to compel.