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Credit reports and emotional distress

February 18, 2011

It’s almost standard practice for an FCRA plaintiff to claim that an inaccurate credit report caused him or her severe emotional distress.  And even though I’m a defense lawyer, I don’t blame plaintiffs for claiming this.  The FCRA allows plaintiffs to recover their “actual damages,” and most circuits have interpreted that to include emotional distress – even if there’s no specific proof (e.g., therapist bills, sleeping pill prescriptions, etc.).  See, e.g., Guimond v. Trans Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir. 1995).

The question arises:  how does a defendant discover evidence (if there is any) of the plaintiff’s emotional distress?  If the plaintiff is seeing a therapist, can the defendant depose the therapist?  The answer appears to be “maybe.”

The FCRA conveys federal question jurisdiction, so federal law on the patient-therapist privilege applies.  And federal law has given pretty broad protection to this privilege since Jaffe v. Redmond, 518 U.S. 1 (1996).  But Jaffee didn’t say the privilege was absolute:  the plaintiff can waive it by putting communications with a therapist at issue.  There appear to be three schools of thought among the lower courts as to how to decide whether to allow discovery of such communications:

1.  Under the “broad view,” if a plaintiff alleges emotional distress damages, communications with a therapist have been placed at issue and are discoverable.  See, e.g., Sarko v. Penn-Del Directory Co., 170 F.R.D. 127 (E.D. Penn. 1997).

2.  Under the “narrow view,” such communications are not discoverable unless a plaintiff explicitly relies on them as evidence of damages or as other proof of a claim.  See, e.g., Hucko v. City of Oak Forest, 185 F.R.D. 526 (N.D. Ill. 1999).

3.  Under the “middle view,” such communications are protected if the plaintiff only makes “garden variety” emotional distress claims, like alleging “I was angry” or “I had trouble sleeping.”  But if the plaintiff makes more specific claims, like alleging “I was clinically depressed,” then the communications with a therapist are discoverable.  See, e.g., Ruhlmann v. Ulster County Dep’t of Soc. Servs., 194 F.R.D. 445 (N.D. N.Y. 2000).

Sometimes different judges within the same circuit or even the same court will adopt different views.  So check your local case law before taking a plaintiff’s deposition and before trying to subpoena a therapist.

Note that it may be possible to avoid controversy about which “view” applies by asking for a medical examination of the plaintiff under Rule 35(a)(1) and, if there is a specific diagnosis, then asking the plaintiff to produce any reports on the same diagnosis per Rule 35(b)(3).  I will look into that next week.

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