United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2007 Decided June 15, 2007
No. 06-5134
RANDOLPH S. KOCH,
APPELLANT
v.
CHRISTOPHER COX, CHAIRMAN, SECURITIES AND EXCHANGE
COMMISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01492)
Ellen K. Renaud argued the cause for appellant. With her
on the briefs were David H. Shapiro and Richard L. Swick.
Marina U. Braswell, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: GINSBURG, Chief Judge, and BROWN and
KAVANAUGH, Circuit Judges.
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Opinion of the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Randolph Koch sued his
employer, the Securities and Exchange Commission, under the
Civil Rights Act of 1964, the Americans with Disabilities Act,
the Rehabilitation Act, and the Age Discrimination in
Employment Act. When the SEC then attempted to serve a
subpoena for confidential records relating to communications
between Koch and his psychotherapist, Koch moved to quash
the subpoena. The district court denied the motion on the
ground that Koch, by placing his mental state in issue, had
impliedly waived the psychotherapist-patient privilege. The
court ordered Koch’s psychotherapist to produce confidential
records and ordered Koch to make her available for a deposition.
Koch appeals, arguing he did not waive the psychotherapist-
patient privilege and therefore his communications with his
therapist are privileged and not discoverable. We agree and
hence reverse the order of the district court.
I. Background
Koch sued the SEC in the district court alleging
discrimination, retaliation, and failure to accommodate his
medical conditions. He alleged that he had serious medical
problems — cardiovascular disease, hypertension, gout, and
obstructive sleep apnea — requiring accommodation in the form
of a lightened or “gliding” work schedule, and that the SEC’s
refusal to accommodate him prevented Koch from participating
in a “medically-supervised cardiac rehabilitation program
prescribed by his cardiologist.” Koch also alleged the SEC’s
actions exacerbated his hypertension and other problems. He
sought a permanent injunction prohibiting the SEC’s
discriminatory and retaliatory practices, affirmative relief
including a promotion and the withdrawal of adverse
performance appraisals, and compensatory and punitive
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damages. He did not seek damages for emotional distress.
Koch executed releases authorizing the SEC to seek and
obtain medical information from various health care providers,
including, as relevant here, his psychopharmacologist, Steven A.
Polakoff, M.D., and his psychoanalyst, Margo Aron, L.C.S.W.,
a licensed social worker. Each release provided that Koch “may
revoke this Authorization at any time, [in writing] ... except to
the extent that action has already been taken in reliance [upon]
this Authorization.” These clauses appear to be based upon
regulations issued by the Department of Health and Human
Services pursuant to the Health Insurance Portability and
Accountability Act (HIPAA), which permit revocation “except
to the extent that ... (i) The covered entity has taken action in
reliance thereon,” 45 C.F.R. § 164.508(b)(5)(I), and define a
covered entity as, among others, a “health care provider,” id.
§ 160.102(a).
Before Ms. Aron was served with the subpoena for
information about Koch’s psychotherapy, but after the SEC had
attempted service at an office the address of which Koch had
provided but which Aron did not frequently use, Koch revoked
his authorization for Aron to release information about him.
Koch then moved to quash the SEC’s subpoena, in opposition to
which the SEC maintained that Koch had put his mental state in
issue and thereby waived the psychotherapist-patient privilege.
A magistrate judge denied the motion in a Memorandum Order
stating:
[Koch] seeks thousands of dollars in compensatory damages
for, inter alia, emotional distress. While he has not alleged
a separate claim for infliction of emotional distress, he has
alleged that the SEC’s actions caused him to ‘develop []
serious hypertension,’ ‘ha[ve] damaged his health,’ made it
harder for him to control his weight, and resulted in stress,
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humiliation and loss of enjoyment of life.’
The judge cited, as the source of these allegations, Koch’s
answers and supplemental answers to interrogatories. He went
on to conclude that Koch “has placed his mental state at issue in
this case ... through his acknowledgment that he suffers from
depression and takes medication for this condition,” and thus
had impliedly waived the psychotherapist-patient privilege,
citing Kalinoski v. Evans, 377 F. Supp. 2d 136 (D.D.C. 2005).
The judge added that Koch’s “initial authorization of release of
medical records from Aron and the references to Aron that exist
in medical records that are in the [SEC’s] possession also weigh
in favor of [finding an express] waiver.”
The district court agreed with the reasoning of the
magistrate judge and noted its agreement also with the SEC that
“once a release for Dr. Polakoff, a psychiatrist, was provided
and he produced records mentioning Ms. Aron, [Koch] cannot
retract his waiver with respect to Ms. Aron: ‘[Koch] surely is not
entitled to cherry-pick his waiver of privilege.’” Accepting
“without modification” the recommended decision of the
magistrate judge, the court denied Koch’s motion to quash.
Koch filed motions respectively to withdraw any “claim for
emotional distress damages” and for reconsideration. The
district court denied reconsideration without indicating whether
it was also denying Koch’s motion to withdraw the claim. The
court granted the SEC’s motion to compel Aron’s testimony and
ordered Aron to produce all records requested by the SEC.
Koch appeals both this order and the order accepting the
magistrate judge’s recommended decision.
II. Analysis
Under the collateral order doctrine of Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (1949), we have
5
jurisdiction over the interlocutory appeal of an order denying a
motion to quash based upon a privilege. In re: Sealed Case
(Medical Records), 381 F.3d 1205, 1209 (2004) (“orders
compelling production of allegedly privileged information
satisf[y] the three criteria for collateral review”) (citation
omitted). We review the “district court’s discovery ruling for
abuse of discretion.” Id. at 1211. “Because a ‘district court by
definition abuses its discretion when it makes an error of law,’
the ‘abuse-of-discretion standard includes review to determine
that the discretion was not guided by erroneous legal
conclusions.’” Id. (quoting Koon v. United States, 518 U.S. 81,
100 (1996)).
Koch argues (1) he neither impliedly nor expressly waived
the psychotherapist-patient privilege, and (2) the district court
erred by ordering Aron to testify and produce records after Koch
withdrew any claim to damages for emotional distress. We
agree in both respects.
A. Implied Waiver
Koch first argues the district court “erred by finding that
[he] placed his mental state at issue [because he] never alleged
that the SEC’s conduct caused a psychological or mental
injury.” Further, Koch did not “claim the SEC’s conduct caused
him to seek professional treatment from a psychotherapist” and
his complaint “does not even contain a claim of emotional
distress.”
A review of Koch’s complaint confirms this position.
Although Koch did acknowledge in a deposition that he suffers
from depression and he referred to “stress” and “humiliation” in
his answers and supplemental answers to interrogatories, upon
which the district court based its conclusion that Koch had
placed his mental condition in issue, those answers do not
6
clearly make an allegation of, much less a claim to recovery for,
emotional distress.
In its order denying Koch’s motion for reconsideration, the
district court did not indicate whether it was denying Koch’s
motion to withdraw any “claim for emotional distress damages.”
The district court had, however, approved without modification
the magistrate judge’s conclusion that Koch’s mental state was
in issue because he acknowledged suffering from depression.
Before this court it is perfectly clear, even if it was not
before the district court, that Koch has abandoned any claim the
district court may have thought he made for damages due to
emotional stress. That does not, however, moot the district
court’s decision and the SEC’s argument that Koch put his
mental state in issue by acknowledging he suffers from
depression. We therefore must decide whether a plaintiff puts
his mental state in issue in such a way as to waive the
psychotherapist-patient privilege by acknowledging he suffers
from depression.
In Jaffee v. Redmond, 518 U.S. 1 (1996), the plaintiff
sought statements a police officer had made to the officer’s
therapist, a licensed clinical social worker, after the officer had
shot and killed the plaintiff’s decedent in a “traumatic incident”
responding to a “fight in progress” call. Id. at 3-4. The
Supreme Court held 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.” Id. at 15
(footnote omitted). The Court squarely rejected the position that
a court should balance the need for relevant information in the
particular case before it against the invasion of a patient’s
privacy. Id. at 17 (“Making the promise of confidentiality
contingent upon a trial judge’s later evaluation of the relative
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importance of the patient’s interest in privacy and the
evidentiary need for disclosure would eviscerate the
effectiveness of the privilege”); see In re Sealed Case (Medical
Records), 381 F.3d at 1214 (“In Jaffee, the Court flatly rejected
the suggestion that the privilege was subject to balancing”).
The Jaffee Court also observed that a “patient may of
course waive the protection” of the privilege, 518 U.S. at 15
n.14, but it did not speak further to the subject of waiver. The
Court did provide some guidance relevant to waiver, however,
when it likened the privilege to the attorney-client and spousal
privileges. See Jaffee, 518 U.S. at 10 (“Like the spousal and
attorney-client privileges, the psychotherapist-patient privilege
is rooted in the imperative need for confidence and trust”)
(internal quotation marks omitted); id. at 11 (comparing interests
served by spousal, attorney-client, and psychotherapist-patient
privileges).
We are aware of only two cases in the federal courts of
appeals addressing the question whether a party has waived the
psychotherapist-patient privilege. See Doe v. Dairy, 456 F.3d
704 (7th Cir. 2006); Schoffstall v. Henderson, 223 F.3d 818 (8th
Cir. 2000). Both were Title VII cases in which the plaintiff
sought recovery for emotional distress. In Doe v. Dairy the
Seventh Circuit stated without unnecessary elaboration: “If a
plaintiff by seeking damages for emotional distress places his or
her psychological state in issue, the defendant is entitled to
discover any records of that state.” 456 F.3d at 718. In
Schoffstall, the Eighth Circuit said only that it found
“persuasive” certain district court cases concluding that, just as
a client waives the attorney-client privilege when he “places the
attorney’s representation at issue, a plaintiff waives the
psychotherapist-patient privilege by placing his or her medical
condition at issue” when he or she makes a claim for emotional
distress. 223 F.3d at 823. We need not decide whether making
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a claim for emotional distress necessarily waives the privilege
— there being no such claim in this case — in order to observe
that an affirmative answer does not follow from the Schoffstall
court’s analogy to the attorney-client privilege. A client waives
that privilege when he puts the attorney-client relationship in
issue — for example, by suing the attorney for malpractice or by
claiming he relied upon the attorney’s advice. See, e.g., United
States v. Moody, 923 F.2d 341, 352-53 (5th Cir. 1991); Mueller
& Kirkpatrick, Evidence § 5.30 (3d ed. 2003); Restatement
(Third) of the Law Governing Lawyers § 80 (2000). By
analogy, a patient would waive the psychotherapist-patient
privilege when he sues the therapist for malpractice, or relies
upon the therapist’s diagnoses or treatment in making or
defending a case. See, e.g., Vanderbilt v. Town of Chilmark, 174
F.R.D. 225, 229 (D. Mass. 1997).
Here, of course, we have a plaintiff making no claim of
emotional distress but an acknowledged history of depression.
Undaunted by the lack of precedent suggesting such an
acknowledgment by itself puts the plaintiff’s mental state in
issue, the SEC takes the position that any time it is possible, as
a matter of medical science, that a plaintiff’s mental condition
— depression, anxiety, remorse, etc. — may be a cause of his
alleged physical condition, or even just aggravate that condition,
the plaintiff necessarily has put his mental state in issue and
thereby waived the psychotherapist-patient privilege. As a
practical matter that position would confine the rule in Jaffee to
the facts of that case. But we are not authorized sub silentio to
overrule a decision of the Supreme Court. Rather, we must
supply a standard for determining whether a patient has waived
the privilege but it must be a standard that does not eviscerate
the privilege.
The parties provide extensive briefing on what they both
see, in the decisions of various district courts, as the “narrow,”
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“broad,” and “middle ground” approaches to determining
whether a patient has placed his mental state in issue. The
narrow approach, as characterized by Koch, means “patients
only waive the privilege by affirmatively placing the substance
of the advice or communication directly in issue,” as in
Fitzgerald v. Cassil, 216 F.R.D. 632, 638 (N.D. Cal. 2003). The
“broad” approach, favored by the SEC, is purportedly that taken
in Schoffstall although, as noted above, that case does not
explain what it might mean to place one’s mental condition in
issue in a case that does not involve a claim for emotional
distress. Jackson v. Chubb Corp., 193 F.R.D. 216 (D.N.J.
2000), describes the “middle ground,” under which Koch argues
he would still prevail and which the SEC suggests is inapposite:
“[W]here a plaintiff merely alleges ‘garden variety’ emotional
distress and neither alleges a separate tort for the distress, any
specific psychiatric injury or disorder, or unusually severe
distress, that plaintiff has not placed his/her mental condition at
issue to justify a waiver of the psychotherapist-patient
privilege.” Id. at 225 n.8.
As we see it, the question before us should be answered
with reference to the Supreme Court’s guidance analogizing the
psychotherapist-patient privilege to the attorney-client and
spousal privileges. See Jaffee, 518 U.S. at 10-11. To inform our
decision whether Koch waived the psychotherapist-patient
privilege in this case, we therefore look to our cases concerning
waiver of those analogous privileges.
As noted before, a client waives the attorney-client privilege
when he sues the attorney for malpractice or bases a claim or
defense upon the attorney’s advice, see, e.g., Mueller &
Kirkpatrick, Evidence at § 5.30; Restatement (Third) of the Law
Governing Lawyers § 80, but in this case Koch neither sued his
therapist nor relied upon her communications with him. A party
also puts a communication with his attorney or his spouse in
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issue if he “selectively disclose[s] part of a privileged
communication in order to gain an advantage in litigation,”
S.E.C. v. Lavin, 111 F.3d 921, 933 (D.C. Cir. 1997) (marital
privilege); see also In re Sealed Case, 676 F.2d 793, 818 (D.C.
Cir. 1982) (“Courts need not allow a claim of [attorney-client or
work product] privilege when the party claiming the privilege
seeks to use it in a way that is not consistent with the purpose of
the privilege”). The “prohibition against selective disclosure of
confidential materials derives from the appropriate concern that
parties do not employ privileges both as a sword and as a
shield.” Lavin, 111 F.3d at 933.
The SEC argues that Koch is engaged in just such
cherrypicking by claiming the agency, in its words, caused his
“physical injury and stress” and yet waiving the privilege as to
Dr. Polakoff but not as to Ms. Aron. As we have seen, however,
Koch neither alleges nor claims damages for emotional distress,
nor even for the more generic “stress.” Nor is his waiver of the
privilege as to Polakoff related to his mental condition; Koch
alleged his heart problems relate to his lipid disorder, wherefore,
he explains, he has “agreed to authorize the release of records
from Dr. Polakoff, ... who administers the medication and
manages its effects, so that the SEC can test this theory.”
Koch’s release as to Polakoff was not, therefore, “an unfair
tactical manipulation of the privilege” or an attempt to shield
some communications from disclosure “while at the same time
relying on [other communications and] ... thereby gain a
litigation advantage,” Lavin, 111 F.3d at 933.
Accordingly, we hold that a plaintiff does not put his mental
state in issue merely by acknowledging he suffers from
depression, for which he is not seeking recompense; nor may a
defendant overcome the privilege by putting the plaintiff’s
mental state in issue. A plaintiff who makes no claim for
recovery based upon injury to his mental or emotional state puts
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that state in issue and thereby waives the psychotherapist-patient
privilege when, consistent with the Supreme Court’s analogy in
Jaffee, 518 U.S. at 10-11, he does the sort of thing that would
waive the attorney-client privilege, such as basing his claim
upon the psychotherapist’s communications with him, see, e.g.,
Mueller & Kirkpatrick, Evidence at § 5.30; or, as with the
marital privilege, “selectively disclos[ing] part of a privileged
communication in order to gain an advantage in litigation,”
Lavin, 111 F.3d at 933 (citation omitted).
B. Express Waiver
The decision of the magistrate judge, accepted by the
district court without modification, suggests that Koch’s “initial
authorization of release of medical records from Aron ...
weigh[s] in favor of [finding an express] waiver.” Koch argues
he validly revoked his express waiver of the privilege as to
Aron. More specifically, because the authorization he signed is
derived from a regulation implementing the HIPAA, which
regulation permits revocation except to the extent a “covered
entity” has relied upon the authorization, and the SEC is not
such an entity, Koch contends his revocation was valid. The
SEC contends Koch has forfeited this point because he did not
make it in the district court and, at any rate, but for the mistaken
address Koch gave the SEC for Aron, Aron would have been
served before Koch revoked his authorization.
Koch did argue before the district court that he timely
revoked his express waiver as to Aron; his invocation of the
HIPAA regulation is new and supports his position but it is not
itself a new claim or defense. See Yee v. City of Escondido, 503
U.S. 519, 534 (1992) (“Once a federal claim is properly
presented, a party can make any argument in support of that
claim; parties are not limited to the precise arguments they made
below”). Rather than raising a new issue upon which the district
12
court did not rule, Koch is adducing additional support for his
side of an issue upon which the district court did rule, much like
citing a case for the first time on appeal.
Turning to the merits, we see the HIPAA regulations are
probative as to the meaning of the phrase “reliance [upon] this
Authorization” in the waiver. Because the SEC is not a
“covered entity,” the proper question here is not whether the
SEC relied upon the waiver but whether the “health care
provider” with custody of the records in issue (Ms. Aron) relied
upon the waiver before Koch revoked it. Koch could not revoke
his waiver to the extent Aron had disclosed confidential
information in reliance upon the waiver. Because Aron had not
disclosed any records, Koch could revoke in toto his
authorization to do so.
The SEC next objects that, but for Koch having given it
Aron’s secondary address, it could have served her with the
subpoena before Koch revoked his authorization. Perhaps so,
but the date of service is not necessarily (or even likely) the date
upon which Aron would have released Koch’s records in
reliance upon the waiver. Nor is there any reason to believe
Koch intentionally gave the SEC the incorrect address for Aron;
after all, if his goal when he supplied the address had been to
deny the SEC access to the records, then he would not have
signed the waiver in the first place. The SEC’s arguments
blaming Koch for its failure to serve Aron are therefore of no
moment.
In sum, fairly read, Koch’s waiver was revocable by its
terms except to the extent, which was nil, that his
psychotherapist had released information in reliance upon the
waiver. We therefore hold the district court erred in adopting
the magistrate judge’s conclusion that Koch expressly waived
the privilege.
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III. Conclusion
Because the district court erred in concluding Koch waived
the psychotherapist-patient privilege, either impliedly or
expressly, the orders of the district court denying Koch’s motion
to quash and compelling Aron to testify and produce documents
relating to her treatment of Koch are
Reversed.