[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Faulkenberry v. Austin, 2024 WL 4056761 (D. Md. Sept. 5, 2024)(Coulson, J.), the Court addressed two important discovery issues. Ms. Faulkenberry sued her employer for alleged employment discrimination.
First, where the plaintiff designated her therapist as an expert witness on emotional distress damages, her disclosure of privileged attorney-client communications in otherwise privileged therapy sessions waived the privileges. One takeaway from the decision is that attorneys should discuss with a client the risks of disclosure of attorney-client privileged information in therapy sessions.
Second, where a Rule 30(b)(6) deponent reviewed an allegedly privileged document in deposition preparation in order to refresh her memory, the privilege, if any, was waived. One takeaway from the decision is that caution may be prudent in determining whether to use privileged information to prepare a corporate designee for deposition.
WAIVER OF A-C PRIVILEGE BY DISCLOSURE IN THERAPY
Plaintiff produced redacted records of notes prepared by her therapist, a licensed social worker. Plaintiff had disclosed privileged, attorney-client information to her social worker in therapy sessions and redacted it from the produced therapy notes.
The issue presented was, where a plaintiff claims emotional distress damages and designates her therapist as an expert, did plaintiff waive the attorney-client privilege by disclosing A-C privileged communications in a therapy session that was otherwise protected by the psychotherapist-patient privilege?
Privileges may be “stacked.” That is, disclosure of one privileged conversation in a second privileged conversation likely does not waive the first privilege. However, under Faulkenberry, if the second privilege is waived, the entire stack becomes unprivileged.
The Faulkenberry plaintiff argued “that she disclosed attorney-client information to her therapist because she believed the conversations to be protected by the psychotherapist-patient privilege, and had no intention of waiving her attorney-client privilege.”
The defendant responded that plaintiff claimed emotional distress damages and that, by “placing her mental health at issue, and designating [the therapist] as an expert witness in the instant action,” plaintiff had waived any privilege related to the notes.
Thus, if a plaintiff identifies a treating psychotherapist as a trial witness, all communications with that therapist must be timely disclosed.
Faulkenberry v. Austin, 2024 WL 4056761, at *2 (D. Md. Sept. 5, 2024) (emphasis added).
The Faulkenberry Court acknowledged “persuasive authority indicating that the disclosure of attorney-client privileged communications within the course of another privileged relationship does not constitute a waiver.” Id. at *2 (citations omitted; emphasis added).
However, that was not the issue. The Court wrote that:
The question is not merely whether the attorney-client privilege was waived at the time of Plaintiff’s initial disclosure of the information to her therapist. The determinative issue is, even assuming the attorney-client privilege was not waived at the time of disclosure, whether the attorney-client privilege survives Plaintiff’s subsequent waiver of her psychotherapist-patient privilege. The Court finds that it does not.
Id. at *2 (emphasis added).
The therapist privilege was waived because plaintiff produced “largely unredacted” therapist’s notes and intended to rely on the therapist’s testimony in support of her claims for psychological injury and emotional distress. The Court wrote: “Thus, if a plaintiff identifies a treating psychotherapist as a trial witness, all communications with that therapist must be timely disclosed.” Id. at *2 (emphasis added).
WAIVER BY DEPONENT’S RELIANCE ON ALLEGEDLY PRIVILEGED DOCUMENT
The Faulkenberry defendant produced a Rule 30(b)(6) corporate designee for deposition. The plaintiff sought production of the documents used to prepare the deponent. In response, the defendant asserted privilege. In reply, the plaintiff argued that “[w]here a Rule 30(b)(6) deponent has no personal (or independent) knowledge of a topic, factual documents that prepared her to discharge her obligations under Rule 30(b)(6) must necessarily be produced.” Id. at *1 (citation omitted).
This blog focuses on the draft policy portion of the decision.[1] The Court did not decide whether the draft policy was privileged or work product because: “Regardless of whether the document is protected under either doctrine, disclosure is warranted because Defendant’s 30(b)(6) designee relied upon the draft policy in preparation for her deposition.” Id. at *3 (emphasis added).
The Faulkenberry Court relied on Fed.R.Evid. 612 and The Hon. Paul W. Grimm’s decision in Nutramax Labs, Inc. v. Twin Labs, Inc., 183 F.R.D. 458 (D. Md. 1998), among other authorities.
The Court wrote that Rule 612 “entitles an adverse party to discovery of any writing, even one subject to privilege, used to refresh a witness’s memory for the purpose of testifying ‘(1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice.’”
The Faulkenberry Court added:
In the context of the deposition of a Rule 30(b)(6) designee, an adverse party has a “heightened need to discover the factual basis for [a Rule 30(b)(6) designee’s] testimony.” … This is because “where a corporate designee testifies on topics of which he denies any personal knowledge, he is an ‘empty vessel’ and documents reviewed on those topics in preparation for deposition necessarily informed his testimony.” … Still, access is “limited only to those writings which may fairly be said in part to have an impact on the testimony of the witness.” … The Court may determine whether documents were used to refresh a witness’s recollection through an in camera review of the documents and the deposition transcript.
Id. at *4 (cleaned up; citations omitted).
Judge Coulson then concluded that, on the facts presented – including a review of the deposition transcript, the deponent had relied on the allegedly privileged draft policy to refresh her recollection. The deponent testified that she had reviewed the draft policy to prepare for the deposition. She lacked personal knowledge of key aspects of the policy. And, as a Rule 30(b)(6) designee, “her reliance on her review of the policy in preparation for her deposition creates a ‘heightened need to discover the factual basis for [her] testimony’ such that production of the draft policy is in the interests of justice.” Id.
Notes
[1] Other ESI was also discussed in the Court’s decision.
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