Maynard v. Heeren

KONENKAMP, Justice

(concurring in part and dissenting in part).

[¶22.] How much of one’s innermost secrets must be exposed when mental and emotional state become an issue in a lawsuit? In ordering virtually unlimited access to all records, I believe the circuit court abused its discretion by failing to oversee a process of allowing pertinent disclosure. Now the majority endorses the error by announcing a rule of “absolute” access to a patient’s psychotherapy records. While I generally concur with the Court’s analysis of privilege waiver under SDCL 19-2-3 and 19-13-11, I wholly disagree with its inadequate treatment of what becomes discoverable following waiver. Only relevant material is accessible. Moreover, the majority today announces a process for in camera review in which a person’s psychotherapy records will be scrutinized by all parties, before the trial court ever rules on its discoverability.

[¶ 23.] Two themes predominate in this appeal: (1) the waiver of psychotherapist-patient privilege, and (2) the rational scope and purpose of discovery. On the first question, “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition....” SDCL 19-13-7 (FedREvid 503(b)). In the past, we have recognized the importance of this privilege:

South Dakota has “a long-standing public policy to encourage uninhibited communication between a physician and his patient.” ... If a patient knows that the privilege is fraught with exceptions, she is liable to withhold information or avoid therapy altogether. 2 Scott N. Stone & Robert K. Taylor, Testimonial Privileges § 7.02 (2d ed 1993).

Weisbeck v. Hess, 524 N.W.2d 363, 365 (S.D.1994)(quoting Hogue v. Massa, 80 S.D. 319, 123 N.W.2d 131, 133 (S.D.1963)). Other courts have concluded similarly: the public interest is “served by encouraging individuals to seek help and treatment for both mental and physical illness.” Ex Parte Rudder, 507 So.2d 411, 415 (Ala.1987). Any encroaeh*838ment upon the privilege should be made with caution, as the very basis of treatment depends upon the “free and complete disclosure of all thoughts and feelings of a patient,” a process significantly thwarted when the privilege is unnecessarily transgressed. Dossey v. Salazar, 808 S.W.2d 146, 148 (Tex.App. 1991). More than the confidentiality covering purely medical information, the psycho-therapeutic privilege protects “those seeking treatment from the embarrassment and humiliation that might result from the psychologist’s disclosure of information obtained from the client in the course of a professional consultation.” People v. Dist. Ct., County of Adams, 797 P.2d 1259, 1263 (Colo.1990).

[¶ 24.] With the delicate and personal nature of the information divulged in therapy, courts should be cautious when considering a demand for total revelation.

Effective 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. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment. As the Judicial Conference Advisory Committee observed in 1972 when it recommended that Congress recognize a psychotherapist privilege as part of the Proposed Federal Rules of Evidence, a psychiatrist’s ability to help her patients
is completely dependent upon [the patient’s] willingness and ability to talk freely. This makes it difficult, if not impossible, for [a psychiatrist] to function without being able to assure ... patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule ... there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment. Advisory Committee’s Notes to Proposed Rules, 56 FRD 183, 242 (1972) (quoting Group for Advancement of Psychiatry, Report No. 45, Confidentiality and Privileged Communication in the Practice of Psychiatry 92 (June I960)).

Jaffee v. Redmond, 518 U.S.-,-, 116 S.Ct. 1923, 1928-29, 135 L.Ed.2d 337, 345 (1996). “The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.” Id. at —, 116 S.Ct. at 1929, 135 L.Ed.2d at 345-46.

[¶ 25.] Unquestionably, the privilege is waived under what is often called the “patient-litigant” exception. Yet discovery must still be limited to relevant communications between patient and therapist when a mental or emotional condition arises as an element of a claim or defense. SDCL 19-13-11 (Fed. R.Evid. 503(d)(3))(emphasis added); see SDCL 19-2-3; 2 S. Stone & R. Taylor, Testimonial Privileges § 7.23 (2d ed 1995). The trial court simply ordered wholesale disclosure of Maynard’s records, without regard to what might be relevant to the claims involved here. Admittedly, our rules permit expansive discovery:

The scope of pretrial discovery is, for the most part, broadly construed. Bean v. Best, 76 S.D. 462, 80 N.W.2d 565 (1957). SDCL 15-6-26(b) provides, “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... ” A broad construction of the discovery rules is necessary to satisfy the three distinct purposes of discovery: (1) narrow the issues; (2) obtain evidence for use at trial; (3) secure information that may lead to admissible evidence at trial.

Kaarup v. St. Paul Fire and Marine Ins. Co., 436 N.W.2d 17, 19 (S.D.1989)(citing 8 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2001 (1970)). Nonetheless, while not limited in scope to only the admissible, discovery requests must be “reasonably calculated to lead to the discovery of admissible evidence.” SDCL 15-6-*8392(b). No overbroad or “carte blanche” disclosure, unduly burdensome or lacking in specificity, should be allowed. Lopez v. Huntington Autohaus Ltd., 150 A.D.2d 351, 540 N.Y.S.2d 874, 876 (1989).

[¶ 26.] Discovery of medical information has long been protected, even after waiver. “[T]he legitimate interest in the privacy of the physician-patient relationship should not be subject to casual breach by every litigant in a single-minded pursuit of the last scrap of evidence which may marginally contribute to victory in litigation.” 1 J. Strong, McCormick on Evidence § 105 (4th ed 1992); see Harlan v. Lewis, 141 F.R.D. 107, 112 (EJD-Ark.1992), affd, 982 F.2d 1255 (8th Cir. 1993); Davis v. Superior Court (Williams), 7 Cal.App.4th 1008, 9 Cal.Rptr.2d 331, 335 (1992)(“only discovery directly relevant to the plaintiffs claim and essential to the fair resolution of the lawsuit”); Owen v. Owen, 563 N.E.2d 605, 608 (Ind.l990)(in spite of waiver “information which is unrelated to the condition in issue and irrelevant to the cause remains privileged and therefore protected from discovery”) (citations omitted); Linton v. City of Great Falls, 230 Mont. 122, 749 P.2d 55, 62-63 (1988)(waiver inapplicable to “any treatment or condition not related to the action” and only waives privilege to extent information is “relevant” to claim); Wachtman v. Trocaire College, 143 A.D.2d 527, 532 N.Y.S.2d 943, 944 (1988)(scope of discovery after waiver is limited and “does not permit discovery of information involving unrelated illnesses or treatment”); see generally State v. Stuck, 434 N.W.2d 43, 54 (S.D.1988)(medical records not relevant or material not discoverable); Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex.1984), overruled on other grounds 827 S.W.2d 833 (Tex.l992)(permissible scope of discovery includes “anything reasonably calculated to lead to the discovery of material evidence,” but overbroad requests amounting to harassment exceed the scope).

[¶ 27.] If medical information warrants vigilance, then the sanctity of one’s thoughts ought not be rummaged over merely to collect eveiy existing dollop of intrusive detail. Privilege waiver does not mandate all-inclusive disclosure. On the contrary, note Wein-stein:

A party may waive the privilege by placing his or her medical condition at issue. For example, a claim for mental pain and suffering waived protection of the psychotherapist-patient privilege because the claim put the patient’s mental condition at issue. A waiver will be found at least where the information sought is not an “unlimited’’ exposure of psychotherapist-patient communications, and is in fact closely tailored to the time period and subject matter of the claim.

3 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 504.07[8] (2d ed. 1997)(emphasis added). Here, the trial court took no heed that overbroad discovery might reveal information wholly irrelevant to the issues. Indiscriminate disclosure of all records, notes, and private communications in a psychotherapist’s file intrudes upon the sanctity of the patient’s mind, potentially exposing matters destructive to mental health. Although abuse of discretion is a demanding standard of review to overcome, State v. Dreps, 1996 SD 142, ¶8, 558 N.W.2d 339, 341, a patient’s hallowed right to preserve private and unrelated matter from disclosure, as well as the relatively simple options available to trial judges for overseeing discovery, make the court’s refusal to exercise its supervisory power a decision against reason and evidence.

[¶ 28.] In this case, the court should have arranged for an in camera review of Maynard’s records to ensure only information relevant to the claim against Heeren came to light. We have noted, “[w]hen an individual makes the courageous choice to seek help, confidentiality begins. This Court should not discourage such courage.” Weis-beck, 524 N.W.2d at 366. An in camera review to seclude from hostile eyes irrelevant but private and possibly volatile material shows appropriate deference to the public policy supporting mental health. This Court has encouraged in camera proceedings as a legitimate process to sever out nondisclosa-ble information. Id. at 373 (Miller, C.J., concurring in part and concurring in result in part)(making all information discoverable and waiting until after disclosure to decide relevancy “undermines the privilege to the *840point of destroying it”); Kaarup, 436 N.W.2d 17 (in camera examination key in reviewing attorney-client information to redact privileged parts); State v. Layton, 337 N.W.2d 809 (S.D.1983)(m camera review of statements for discoverable information proper). Such a process is especially appropriate in this case, as a substantial privacy interest is at stake. Other courts have found such a step necessary. Petrillo v. Syntex Laboratories, Inc., 148 Ill.App.3d 581, 102 Ill.Dec. 172, 191, 499 N.E.2d 952, 971 (1986)(state has significant interest in “safeguarding the privacy rights of individual patients”); Anker v. Brodnitz, 98 Misc.2d 148, 413 N.Y.S.2d 582, 586 (Sup.Ct. 1979)(court supervision of discovery in case where mental health was element of claim gives patient opportunity to object to disclosure of information that is “remote, irrelevant, or otherwise improper”); Crist v. Mof-fait, 326 N.C. 326, 389 S.E.2d 41, 46 (1990)(in medical malpractice case, “formal discovery procedures enable defendants to reach all relevant information while simultaneously protecting the patient’s privacy by ensuring supervision over the discovery process, via presence of counsel or judicial intervention, if warranted”); International Surplus Lines v. Wallace, 843 S.W.2d 773, 776 (Tex.App.l992)(vacating broad disclosure order; nature of material should be determined before blanket order granted); Dos-sey, 808 S.W.2d at 148 (“Thus, the holding of an in camera review of the [psychotherapy] records prior to the order was proper; however, [the judge] clearly abused his discretion by subjecting all of the [patient’s] psychological records to discovery since even in the interest of broad discovery, no privilege should be totally ignored.”); 1 McCormick on Evidence § 105 (some states rest privilege screening in hands of court; such practice “would not only allow protection of privacy against trivial intrusion but would draw from the privilege the threat of injustice which it has long carried”); see generally Owen, 563 N.E.2d at 608 (advising in camera inspection of privileged materials to prevent overbroad discovery); 23 Am.Jur.2d Depositions and Discovery § 29 (1983 & 1996 Supp.)(m camera inspection is appropriate to excise parts of requested information not discoverable).11

[¶ 29.] Courts are empowered to prohibit exposure of extraneous information that may subject a patient to unnecessary “annoyance, embarrassment, oppression, or undue burden or expense.” SDCL 15-6-26(e)(authorizing protective orders); Nelson v. Lewis, 130 N.H. 106, 534 A.2d 720, 722 (1987)(even in a waiver situation, only evidence relevant to a claim is discoverable, and “the patient waives the privilege only to the extent necessary to provide essential information”). Proper supervision under the rules enables “a trial court to exercise ‘broad discretion to manage the discovery process in a fashion that will implement the philosophy of full disclosure of relevant information and at the same time afford the participants the maximum protection against harmful side effects....’” Bond v. Dist. Ct., In & For Denver Cty., 682 P.2d 33, 40 (Colo.l984)(quoting 4 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 26.6.7 (1983)); In re Lifschutz, 2 Cal.3d 415, 85 Cal.Rptr. 829, 844, 467 P.2d 557, 572 (1970)(even when privilege is waived, protection order and pre-discovery inquiry into materials are appropriate to “safeguard the privacy of the patient”); Mead v. Salter, 566 N.E.2d 577, 582 (Ind.Ct.App.l991)(information unrelated to condition and injury remains privileged despite waiver). This protective mindset, along with the public policy reasons behind carefully conducted privilege-waiver discovery, mandates that an in camera hearing should have been held in this case to exclude matters having nothing to do with the issues. See generally Duquette v. Supenor Court, 161 Ariz. 269, 778 P.2d 634, 637 (Ct.App.l989)(privilege waivers best considered under the formal methods of discovery).

[¶ 30.] Despite the clear mandate in our statutes and a nationwide trend to limit dis*841covery to relevant material, this Court approves “absolute” access to a patient’s psychotherapy records.12 Without citing any authority whatsoever, the majority simply proclaims that during an in camera review “both parties must have access to the contested information.” This makes in camera review meaningless. Only the court should examine material claimed to be nondiseoverable to determine first if it should be disclosed.13 No less than the other freedoms we possess, our innermost thoughts and feelings deserve refuge from senseless intrusion.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.

Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, 956 (1928)(Brandeis, J., dissenting). In this age when privacy seems ever more difficult to preserve and discovery abuse tarnishes the integrity of our civil justice system, I would reverse and remand with instructions to the trial court to conduct an in camera relevancy review of Maynard’s psychotherapy records before those records are inspected by her opponent.

[¶ 31.] AMUNDSON, J., joins this dissent and I am hereby authorized to so state.

. In actions involving review of information falling under the attorney-client privilege, in camera review has been held to be a proper method for judging discoverability. United States v. Zolin, 491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989); Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 548 (2d Cir.1991); In re Grand Jury, 906 F.2d 1485, 1492 (10th Cir.1990).

. In 1993 the Federal Rules of Civil Procedure were amended in pertinent part as follows: "(5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” (Emphasis added).

. The following reflects a compilation of various court rules from other jurisdictions setting forth a procedure for in camera inspection: If an objection is made on a claim of privilege, the burden is on the objecting party to request an in camera inspection and to provide the documents for review. The request should contain the factual and legal basis to support the claimed privilege or explain how -the privilege though waived makes the material nonetheless irrelevant for discovery purposes. The objecting party should review the documents and note with specificity any portions to which the claimed privilege does not apply. The objecting party should provide the documents to the judge presiding in the case, enclosed in a sealed and labeled container accompanied by an explanatory cover letter. The cover letter should identify file number and caption of the proceeding and explain the nature of the sealed materials, without compromising its essential secrecy. The container should be marked "IN CAMERA REVIEW” in bold print. Each page for which a privilege or relevancy objection is asserted shall be marked "privileged” or "irrelevant” or both. When the court opens this container it should isolate the materials it deems not discoverable and reseal it leaving the discoverable materials unsealed. Without revealing the specific nature of the nondiscoverable material the court should explain its ruling on the record for the benefit of the parties. The sealed material should be filed with the clerk so that it may be later available for appellate review. See, e.g., Beard v. Middle Tennessee Home Health Service, 144 F.R.D. 340 (E.D.Tenn.1992).