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Sponer v. Equifax Information Services LLC

United States District Court, D. Oregon, Portland Division

April 26, 2019

MATTHEW SPONER, Plaintiff,
v.
EQUIFAX INFORMATION SERVICES LLC, WELLS FARGO BANK N.A., Defendants

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff's motion for a protective order [30]. For the following reasons, the Court GRANTS the motion.

         BACKGROUND

         Plaintiff brings claims against defendant Wells Fargo Bank, N.A. for alleged violations of the Fair Credit Reporting Act (“FCRA”). Plaintiff alleges that Wells Fargo did not tell Equifax to remove an account from Plaintiff's consumer credit report even after it was notified that the account was fraudulently opened with Plaintiff's stolen identity. Compl. ¶¶ 6-10, ECF 1. Relevant to this motion, the complaint alleges that Plaintiff “suffered and continues to suffer, actual damages, including economic loss, lost opportunity to receive credit, damage to reputation, emotional distress and interference with plaintiff's normal and usual activities.” Compl. ¶¶ 13, 15.

         At issue is Defendant's request for the production of documents. In relevant part, Defendant requested:

All documents relating to any medical treatment or consultation that you have sought, from 2013 to the present, for emotional distress, stress, anxiety, and/or other similar emotions.

         Fransen Decl., Ex. 1, ECF 36. In response, Plaintiff argued the request was overbroad, “[sought] information protected by the doctor patient privilege, and [was] not relevant . . . to the claims against Wells Fargo, as Plaintiff is not seeking damages for any medical treatment.” Id.

         On January 28, 2019, this Court ordered Plaintiff's counsel to determine whether Plaintiff had received treatment for emotional distress during the relevant time period. Tr. of Telephone Conference at 11. The Court told counsel that if these records existed, and if counsel believed these records were protected by privilege, the Court would decide that issue following briefing from both parties. Id. at 13. Counsel obtained the treatment records at issue and moved for a protective order. The Court has not previously ruled on this issue.

         STANDARDS

         Under Rule 26(b), parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case . . .” Under Rule 26(c)(1), the Court may issue a protective order to prevent certain discovery “for good cause . . . to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense[.]”

         DISCUSSION

         Plaintiff seeks a protective order to prevent the discovery of medical and psychological records responsive to Defendant's request for documents related to Plaintiff's treatment for emotional distress. Plaintiff argues these records are protected by the physician-patient and psychotherapist-patient privileges.[1]

         In Jaffee v. Redmond, the Supreme Court recognized a federal psychotherapist-patient privilege. 518 U.S. 1, 15 (1996). The privilege can be waived by a plaintiff's claim for emotional distress. While “the extent to which a plaintiff's claim for emotional-distress damages constitutes a waiver of the plaintiff's psychotherapist-patient privilege is not yet settled in this Circuit, ” there are three approaches that courts generally follow:

(1) the broad approach-plaintiff waives the privilege merely by alleging emotional distress in the complaint; (2) the middle approach-plaintiff waives the privilege by alleging either a separate tort of distress or unusually severe emotional distress (i.e., more than “garden variety” emotional distress); or (3) the narrow approach-plaintiff ...

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