1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, Case No. 1:19-cv-00955-AWI-JLT (PC)

12 Plaintiff, ORDER GRANTING IN PART

PLAINTIFF’S MOTION TO MODIFY

13 v. SUBPOENA

14 B. PRICE, et al., (Doc. 18) 15 Defendants. 16 17 I. INTRODUCTION 18 On April 23, 2020, Plaintiff filed a document titled, “Reply to Notice of Issuance of 19 Subpoena to UCR Health.” (Doc. 18.) The Court construed the document as a motion to modify a 20 subpoena pursuant to Federal Rule of Civil Procedure 45(d)(3), and it ordered Plaintiff to submit 21 a copy of the subject subpoena to the Court. (Doc. 19.) Plaintiff submitted a copy on May 13, 22 2020. (Doc. 22.) Per the Court’s order, Defendant filed an opposition to Plaintiff’s motion on 23 May 19, 2020. (Docs. 25-26.) Plaintiff has not filed a reply, and the time to do so has passed. (See 24 Doc. 19 at 2.) The Court deems the motion submitted. 25 II. LEGAL STANDARDS 26 Under Federal Rule of Civil Procedure 45(a)(1)(C), a party may subpoena a nonparty to 27 produce documents, electronically stored information, and tangible things. Under Rule 26(b)(1), a party “may obtain discovery regarding any nonprivileged matter that is relevant to a party’s claim 1 or defense and proportional to the needs of the case.” The Court must quash or modify a 2 subpoena if it “requires disclosure of privileged or other protected matter, if no exception or 3 waiver applies.” Fed. R. Civ. P. 45(d)(3)(A)(iii). 4 Courts recognize a constitutional right to privacy, as well as a doctor-patient and 5 psychotherapist-patient privilege. See, e.g., Jaffee v. Redmond, 518 U.S. 1, 15 (1996); Marin 6 Caesar v. Mountanos, 542 F.2d 1064, 1067 (9th Cir. 1976); Anderson v. Clawson, No. C-13- 7 0307-LHK (PR), 2014 WL 3725856, at *2 (N.D. Cal. 2014). However, a party’s right and 8 privilege are waived when he raises an otherwise protected matter before the Court. See, e.g., 9 Caesar, 542 F.2d at 1070. For example, a party waives the psychotherapist-patient privilege when 10 he seeks monetary damages for emotional distress, since he has placed his mental condition at 11 issue in the case. E.g., Enwere v. Terman Assocs., L.P., No. C-07-1239-JF-PVT, 2008 WL 12 5146617, at *3 (N.D. Cal. 2008); Doe v. City of Chula Vista, 196 F.R.D. 562, 568 (S.D. Cal. 13 1999). However, even when a party waives his right to privacy on a matter, the waiver is limited 14 to information that is relevant to the lawsuit. Enwere, 2008 WL 5146617, at *2 (citation omitted). 15 This limitation coincides with the Federal Rules’ mandate that discovery be limited to matters 16 that are relevant to a party’s claim or defense. See Fed. R. Civ. P. 26(b)(1). 17 III. DISCUSSION 18 On April 13, 2020, Defendants served on Plaintiff a Notice of Issuance of Subpoena to 19 UCR Health, including a copy of the subpoena. (Doc. 22 at 4-10; Doc. 26 at 4-10.) The subpoena 20 seeks all medical and psychiatric/psychological records of Plaintiff in the possession of UCR 21 Health. (See id.) Plaintiff objects to the request for the production of his mental health records, 22 stating that his complaint raises “medical issues, which are only physical not mental … issues.”1 23 (Doc. 18 at 1-2.) 24 Plaintiff’s operative claims are for inadequate medical care in violation of the Fourteenth 25 Amendment against Defendant Dike. (See Docs. 6, 8.) Plaintiff alleges that, as a result of 26

27 1 Plaintiff also objects to the production of his disciplinary and legal records. (Doc. 18 at 2.) However, as Defendant points out, the subpoena—of which Plaintiff and Defendant both provide copies (Doc. 22 at 4-10; Doc. 26 at 4-10)— 1 Defendant’s inadequate medical care in 2018, he “continues … to suffer from problems from … 2 [internal] bleeding which causes extreme discomfort and limits the food he can digest.” (Doc. 1 at 3 7-9.) Plaintiff states that his injuries include pain and suffering, “uncontrolled diabetes,” and “on 4 going [sic] medical … issues.” (Id. at 10.) 5 Based on the above, the Court does not find that Plaintiff has placed his mental or 6 emotional condition at issue in this lawsuit. Plaintiff does not allege emotional or psychological 7 injuries, and he does not explicitly seek damages for such injuries. (See id.) Therefore, Plaintiff 8 has not waived his privacy rights with respect to his mental health records, and his 9 communications, if any, with psychotherapists remain privileged. The Court will therefore grant 10 Plaintiff’s motion to the extent that it seeks to modify the subpoena by striking the request for his 11 mental health records. The Court notes that, if Plaintiff seeks damages for emotional or 12 psychological injuries during the course of this litigation, Defendant would be entitled to his 13 mental health records. 14 Plaintiff’s medical records with respect to his physical health, on the other hand, are 15 clearly at issue. Plaintiff does not dispute this. (See Doc. 18 at 2.) But the defense is entitled only 16 to those records that are directly relevant to a party’s claim or defense. The defendant is not 17 entitled, for example, to Plaintiff’s medical records from many years prior to the start of this 18 lawsuit, absent a showing that they are relevant. See Doe, 196 F.R.D. at 569-70. Because 19 Defendant’s subpoena does not include a time limitation, the Court will modify the subpoena to 20 add a timeframe of five years. Records from this period of time will allow Defendant to assess the 21 validity of Plaintiff’s allegations regarding his injuries, and whether any injuries are ongoing, 22 without allowing a fishing expedition going back years. 23 IV. CONCLUSION 24 Based on the foregoing, the Court ORDERS: 25 1. Plaintiff’s motion to modify the subpoena (Doc. 18) is GRANTED in part as described 26 herein; and, 27 /// 1 2. Defendant’s subpoena issued on April 13, 2020, is modified to strike the paragraph on 2 Attachment A that begins with, “Any and all psychiatric/psychological records.” The 3 preceding paragraph, which begins with “Any and all records of Richard Scott 4 Kindred (CO 000543-9),” is modified to add the phrase “from January 1, 2015, to 5 January 1, 2020” immediately after “(CO 000543-9).” 6

IT IS SO ORDERED.

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8 Dated: June 17, 2020 /s/ Jennifer L. Thurston

UNITED STATES MAGISTRATE JUDGE

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