E.E.O.C. v. Danka Industries, Inc.

• Decision Date: 23 October 1997
• Docket Number: No. 4:96-CV-323 (CEJ).,4:96-CV-323 (CEJ).
• Citation: 990 F.Supp. 1138
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et. al., Plaintiffs, v. DANKA INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

990 F.Supp. 1138

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et. al., Plaintiffs, v. DANKA INDUSTRIES, INC., Defendant.

No. 4:96-CV-323 (CEJ).

United States District Court, E.D. Missouri, Eastern Division.

October 23, 1997.

COPYRIGHT MATERIAL OMITTED

Robert Johnson and Donna Harper, EEOC, St. Louis, MO, for Plaintiffs.

Barbara Seely, St. Louis, MO, for Plaintiff E.E.O.C.

Mary Anne Sedey, Wm. Moench, Sedey, Moench & Associates, Clifford B. Faddis, Jr., Fischer and Faddis, St. Louis, MO, for Intervenor Plaintiffs.

Allen D. Allred, Thompson and Coburn, St. Louis, MO, Donald B. Harden, Mairen C. Kelly, Kenneth J. Barr and Maureen J. Hernandez, Fisher and Phillips, Atlanta, GA, for Defendants.

MEMORANDUM AND ORDER

JACKSON, District Judge.

This matter is before the Court on the discovery motions filed by the parties. Plaintiffs bring this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.2000e et seq. They claim that Robert Lees, Sr., a supervisor of defendant Danka Industries, Inc., committed verbal and physical acts of sexual harassment against the plaintiff-intervenors.

1. Motion for Protective Order re: Pamela Meyer

Plaintiffs request a protective order limiting questions that defendant may ask during the deposition of Pamela Meyer one of the individuals on whose behalf the Equal Employment Opportunity Commission ("EEOC") brings this action. There is no dispute that defendant may inquire into Meyer's romantic or sexual relationships with co-workers or managers which took place outside the workplace. Also, the parties agree that defendant may inquire whether Meyer ever discussed her private sexual activities at work. However, plaintiffs object to an inquiry of Meyer's past sexual history with persons not employed by the defendant. The Court agrees with the plaintiffs and finds that such information is not discoverable on the issue of sexual harassment. Events in a plaintiff's private life do not result in "acquiescence to unwanted sexual advances at her work place." Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 963 (8th Cir. 1993). The Court recognizes that Fed. R.Civ.P. 26(b) allows discovery of information "reasonably calculated to lead to the discovery of admissible evidence." Nevertheless, discovery of Meyer's past sexual history with persons not employed by the defendant exceeds the boundaries of Fed.R.Civ.P. 26(b).

Similarly, the Court will not permit inquiry into Meyer's medical history. No damages for emotional distress are being sought on Meyer's behalf. Accordingly, plaintiffs' motion for protective order regarding Pamela Meyer will be granted.

2. Motion for Protective Order re: Robert Lees, Sr.

Plaintiffs deposed Robert Lees, Sr. over a two-day period and sought to "continue" the deposition. Defendant asserts that further deposition of Lees would constitute a second deposition requiring leave of court. See Fed.R.Civ.P. 30(a)(2)(B). Also, defendant claims that plaintiffs have already had ample opportunity to question Lees. Therefore, under defendant's view, further deposition of Lees would be abusive, especially in light of the fact that he is a non-party witness. Although Lees is not a party, his alleged conduct (i.e., sexual harassment of the plaintiff-intervenors) forms the basis for this action. Due to Lees' central role and the number of parties involved in this action, the Court finds that plaintiffs are entitled to conduct further deposition of Lees. Thus, the Court will grant leave for an additional deposition of Lees and will deny defendant's motion for a protective order.

3. Motion for Protective Order and to Quash Subpoenas, filed on August 7, 1997

a) Depositions of Kim Ratteree, Jeff Tegeler and Cheryl Haile

The plaintiffs move to quash the subpoenas served by the defendant on Kim Ratteree, a personal friend of plaintiff-intervenor Robyn Tegeler, Jeff Tegeler, who is Robyn Tegeler's exhusband, and Cheryl Haile, a former employee of defendant who is related by marriage to an individual no longer a party to this action. The plaintiffs anticipate that the questions to be asked of these witnesses may be improper or irrelevant. However, the plaintiffs have identified these witnesses as individuals having discoverable information. Given these circumstances, it is appropriate that their depositions be taken.

b) Depositions of Dennis Dolan and George Howe

Plaintiffs do not object to the testimony of Dolan and Howe but only object to the scheduling of their depositions when plaintiffs' counsel are unavailable. Plaintiffs' counsel are entitled to be present at any deposition taken by defendants, including that of Dolan and Howe. The attorneys in this case are expected to cooperate with each other in scheduling depositions so that it will be unnecessary for any party to present such a dispute for resolution by the Court.

c) Production of Plaintiffs' Education and Employment Records and Documents from the St. Louis Medical Examiner.

The plaintiffs seek a protective order and move to quash subpoenas issued by the defendant to various non-party entities. The subpoenas seek the employment records of plaintiff-intervenor Judy Chapman's former employer, the high school and college records of Pamela Meyer and plaintiff-intervenors Robyn Tegeler and Janet Truelove, and records of the St. Louis Medical Examiner relating to the death of Truelove's former boyfriend. The plaintiffs do not assert any claim of privilege with respect to the subpoenaed documents and, as such, they have no standing to request that the subpoenas be quashed. See Brown v. Braddick, 595 F.2d 961, 967 (5th Cir.1979); Shepherd v. Castle, 20 F.R.D. 184, 188 (W.D.Mo.1957); 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2459, p. 41 (1994). Whether any of this information will be admissible at trial remains to be seen. However, absent a claim of privilege by the movants or objection by the entities to whom the subpoenas are directed, the Court will not foreclose the defendant's acquisition of the documents. The plaintiffs' motion will therefore be denied.

d) Heidi Vogt's Educational Records

Defendant states that it has withdrawn the subpoena for Vogt's educational records, and plaintiff does not dispute this. Therefore, the issue is now moot.

4. Motion to Compel Release of Medical and Educational Records

Defendant seeks records of former health care providers of plaintiff-intervenors Robyn Tegeler and Janet Truelove. Plaintiffs argue that the records are not discoverable. Even if the records are discoverable, plaintiffs invoke the protection of the psychotherapist-patient privilege. Because Tegeler and Truelove are seeking damages for emotional distress, the Court finds that the medical records are discoverable to determine whether the plaintiff-intervenors' past medical history contributed to their claimed emotional distress.

Recently, the United States Supreme Court recognized the psychotherapist-patient privilege under federal common law. Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). The Supreme Court held that the privilege covers confidential communications made to licensed psychiatrists, psychologists, and social workers "in the course of psychotherapy." Id. at 1931. This privilege, however, is not absolute and may be waived by the patient in certain circumstances.

For example, courts have recognized that the privilege is waived impliedly when the patient-plaintiff's mental condition is made an issue in the litigation. Vann v. Lone Star Steakhouse & Saloon of Springfield, Inc., 967 F.Supp. 346, 349-50 (C.D.Ill.1997) (citing Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D.Pa.1997)). In Vann, the plaintiff's claims included sexual harassment and damages for emotional injury. Id. at 347-48. The court concluded that the plaintiff waived the psychotherapist-patient privilege by "placing her mental condition at issue." Id. at 349 (citing Sarko, 170 F.R.D. at 130). Further, the court analogized that a waiver of the psychotherapist-patient privilege is similar to a waiver of the attorney-client privilege. Id. (citing Sarko, 170 F.R.D. at 130). "The attorney-client privilege is waived when the advice of counsel is placed at issue in the litigation." Id. (citing Sarko, 170 F.R.D. at 130). Also, considerations of fairness should not allow protection when the privilege is "directly at issue." Id. at 350 (quoting Sarko, 170 F.R.D. at 130). Finally, plaintiff disclosed her psychotherapist as an expert witness who would give opinion testimony at trial. Id. Therefore, the court concluded that records of the psychotherapist were subject to discovery and were not protected by privilege. Id.

In contrast, the United States District Court for the District of Massachusetts has taken a more narrow view of when the privilege is waived. Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 1997 WL 440732 (D.Mass.1997). In Vanderbilt, the court rejected the generally-held theory that a waiver occurs when the plaintiff's mental condition is made an issue. See id. at 228. Instead, the court ruled that an implied waiver occurs when the privileged communication itself is made an issue, that is, when it is actually used as evidence by the patient-plaintiff. Id. at 228. Three main reasons were given for this ruling. Id. at 228-29. First, patients need to know with certainty at the time of the communication whether the confidentiality will be protected at a later date. Id. at 229. Otherwise, the privilege would offer little protection. See id. Second, the court did not find the waiver of the attorney-client privilege that occurs in an attorney malpractice case to be analogous. Id. at 229. In the malpractice case, the plaintiff relies on the "substance of the attorney-client relationship" to further the claim. Id. However, in a claim for emotional distress damages, a patient-plaintiff does not necessarily rely on the advice of her...