and communications between a psychologist or psychiatrist and [a] client shall be on the same basis as those provided or prescribed by law between an attorney and client." 42 Pa. Cons. Stat. Ann. § 5944. Pennsylvania law prohibits compelled disclosure of confidential attorney-client communications unless the privilege is waived. See 42 Pa. Cons. Stat. Ann. § 5928.
Assuming, arguendo, that section 5944 applies to the notes summarizing Rebecca Vaughan's therapy sessions with Ogden Reid Mitchell,
plaintiffs have already produced to defendant a report from psychologist Dr. Cary Rothstein, who also treated Ogden Reid Mitchell. The Dr. Rothstein report concerns, in part, the subject of the decedent's shooting. Plaintiffs admit that such production was knowing and voluntary, rather than inadvertent. Therefore, plaintiffs have waived the psychologist-client privilege over the subject of the shooting, and plaintiffs may not now selectively assert such privilege. See Commonwealth v. Kauffman, 413 Pa. Super. 527, 605 A.2d 1243, 1248 (Pa. Super. 1992) ("The failure to assert a privilege constitutes a waiver thereof."); see also ICI Americas Inc. v. John Wanamaker, Civil Action No. 88-1346, 1989 WL 38647, at * 2-3 (E.D. Pa. Apr. 18, 1989) (applying Pennsylvania law for waiver of attorney-client privilege, and distinguishing between inadvertent production of documents and knowingly limited disclosure); cf. Commonwealth v. El, 273 Pa. Super. 1, 416 A.2d 1058, 1064 (Pa. Super. 1979) (disallowing selective assertion of privilege over drug treatment records after intentional disclosure and use of related records).
Moreover, plaintiffs' waiver of the psychologist-client privilege over the subject of the shooting extends to Ogden Reid Mitchell's communications on this subject with psychologists other than Dr. Rothstein. See Von Bulow v. Von Bulow, 114 F.R.D. 71, 80 (S.D.N.Y. 1987) (applying federal common law) ("Once the client has waived the attorney-client privilege with respect to a subject matter discussed with one attorney, thereby authorizing its disclosure, it would be anomalous to hold that discussions of the same subject matter with another attorney are privileged."), mandamus granted on other grounds, 828 F.2d 94, 104 (2d Cir. 1987) (directing district court to vacate its order compelling discovery on the grounds that the scope of the subject matter of the waiver as determined by the district court was too broad); Nye v. Sage Prods., Inc., 98 F.R.D. 452, 453 (N.D. Ill. 1982) (applying federal common law) ("Disclosure of privileged documents can waive privilege as to the client's communications with other attorneys.").
Having determined that the notes inspected in camera are not shielded by privilege at least to the extent they concern the subject of the decedent's shooting, I further reviewed the documents for relevancy. Fed. R. Civ. P. 26(b). As noted above, the first two pages consist of a consent release form and a transmittal letter from the psychologist's office to plaintiffs' attorney. The final three pages consist of the actual notes of the supervising psychologist, Reb Brooks. I find that portions of these notes are relevant to the present action, in that they describe the shooting. See Fed. R. Evid. 401. Therefore, these portions will be produced, and the Court will redact the balance of the notes. Moreover, because portions of the notes are relevant, the release form and the transmittal letter are also relevant and discoverable pursuant to Rule 26(b). Fed. R. Civ. P. 26(b)(1). Of course, at this stage, the Court need not decide whether the documents will be admissible at trial. See id.
An appropriate Order follows.
AND NOW, this 28th day of January, 1994, upon consideration of defendant's Motion to Compel Production of Therapist's Records, or, in the Alternative, for an In Camera Inspection of Available Records (Document No. 13) and memorandum in support thereof, and upon consideration of plaintiffs' answer to defendant's Motion and memorandum in opposition thereto (Document No. 15), and having previously granted defendant's Motion for an In Camera Inspection of Available Records (Document No. 13-2) without objection from plaintiffs, and having thereafter performed an in camera inspection of all records submitted by plaintiffs relating to the therapy provided to Ogden Reid Mitchell by Rebecca Vaughan, and for the reasons stated in the accompanying Memorandum of the Court, it is hereby ORDERED that:
1. Defendant's Motion to Compel Production of Therapist's Records (Document No. 13-1) is GRANTED IN PART AND DENIED IN PART. Fed. R. Civ. P. 26(b); Fed. R. Civ. P. 37(a);
2. The Courtroom Deputy Clerk shall mail to each party a copy of the five pages of documents inspected in camera, but with irrelevant portions redacted by the Court. Further, the Court shall file of record under seal an unredacted copy of the documents; and
3. The parties shall bear their own expenses incurred in relation to the motion to compel. Fed. R. Civ. P. 37(a)(4).
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.