The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
On September 20, 1993, plaintiff Connie Jean Covell initiated this action by filing a complaint pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., as amended, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. §§ 951 et seq. Plaintiff alleges that defendant created or allowed to exist, through its employees, a sexually hostile work atmosphere, and that defendant retaliated against plaintiff due to her claims of sexual harassment.
Among plaintiff's allegations were claims for damages resulting from emotional pain, suffering, mental anguish, humiliation, and loss of enjoyment of life. See Complaint PP 75, 79, 82, 88, 96, 102, and ad damnum clause of each count of the complaint. Plaintiff voluntarily withdrew those claims at a later date. Order of Court dated June 6, 1994.
Before the court is a motion by defendant to compel the production of documents. Actually, the order sought by defendant would direct plaintiff to execute an authorization enabling defendant to obtain plaintiff's psychological/psychiatric records.
A. Standard for a Motion to Compel Discovery
A motion to compel discovery is made pursuant to Fed. R. Civ. P. 37(a)(2)(A), which reads in pertinent part: "If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. . . ." The records sought by defendant, if discoverable, would fall within the ambit of Rule 26(a)(5). Material is discoverable if it is not privileged and is relevant to the subject matter involved in the pending action. Fed. R. Civ. P. 26(b)(1). "The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Id.1
B. Pennsylvania Psychotherapist/Patient Privilege
In Pennsylvania, a psychologist or psychiatrist is barred by statute from disclosing information acquired from a client in the course of the professional relationship without the written consent of the client. 42 Pa. Cons. Stat. Ann. § 5944. The statute acts as a bar to both testimony and disclosure of records. Com. v. Smith, 414 Pa. Super. 208, 606 A.2d 939, 941-942 (Pa. Super. 1992), allocatur denied, 620 A.2d 490 (1993) (table). However, under Fed. R. Evid. 501, a privilege under state law applies only when state law controls the rule of decision. In this instance, state law does not control because the action is brought pursuant to federal law (Title VII), and so "the privilege of a witness . . . shall be governed by the principles of the common law of the United States in the light of reason and experience." Rule 501.
C. Federal Rule on Privilege
In undertaking analysis of an asserted privilege under Rule 501, a district court must undertake a two-step process, deciding: (1) whether a qualified privilege exists or should exist, and (2) how to apply it to the case at hand. In re Grand Jury (Granite Purchases), 821 F.2d 946, 955 (3d Cir. 1987), cert. denied sub nom. Colafella v. United States, 484 U.S. 1025, 98 L. Ed. 2d 762, 108 S. Ct. 749 (1988). The balancing of interests involved in this analysis requires that the court determine that the privilege is justified under the facts of the case and will be applied only to the extent necessary to achieve its purpose. Id. (citations omitted).
Defendants point out that three circuits have refused to recognize the existence of a psychologist/patient or psychiatrist/patient privilege. In re Grand Jury Proceedings, 867 F.2d 562 (9th Cir. 1988), cert. denied, 493 U.S. 906, reh'g denied, 493 U.S. 985 (1989); United States v. Corona, 849 F.2d 562 (11th Cir. 1988), cert. denied, 489 U.S. 1084, 103 L. Ed. 2d 846, 109 S. Ct. 1542 (1989); United States v. Meagher, 531 F.2d 752 (5th Cir. 1975), cert. denied, 429 U.S. 853, 50 L. Ed. 2d 128, 97 S. Ct. 146 (1976). One circuit has recognized the existence of the privilege, In re Zuniga, 714 F.2d 632, 639 (6th Cir.), cert. denied, 464 U.S. 983, 78 L. Ed. 2d ...