For companies involved in employment discrimination litigation, there is always a question of how far to push on discovery issues.
A new case decided this week in U.S. District Court in Connecticut allows employers to push pretty hard to get an employee’s medical and therapist records. In order for that to happen, the employee needs to put their medical condition "at issue" in the case. Here, the court found that separate causes of action for "Intentional Infliction of Emotional Distress" and "Negligent Infliction of Emotional Distress" were enough to trigger the production of the underlying medical records.
In Green v. St. Vincent’s Medical Center (download here), Magistrate Judge Thomas P. Smith was asked to decide whether a former employee who claimed that she had been sexually harassed in 2004 and suffered emotional distress was entitled to have her medical and therapist records remain private.
The Court ultimately ruled that the claims in this case waived a privilege that she would have had if she had not filed such claims.
Magistrate Judge Smith recognized that in cases with "garden-variety" emotional distress claims, discovery has been denied. He observed that while there was "broad disagreement" as to what was "garden variety", this case was not one of them.
This court agrees with the view that the plaintiff has placed her mental or emotional state in issue by asserting claims for both negligent and intentional infliction of emotional distress, and by seeking damages for severe emotional distress.
In the Green case, the records that the employer sought were from 1996-1999 — several years before the employee ever worked for the employer and well before the alleged harassment occurred either. The employer wanted these records to determine if there were other "causes" to her alleged emotional distress. Ultimately, the court agreed with the employer that this was a valid request.
Sometimes the information elicited will be helpful to an employers’ case. But many times, it is not. Trying to link events that are remote in time is always a stretch and, at trial, an employer runs the risk of being overbearing if it brings up these past matters.
Nevertheless, employers have another arrow in their quiver, so to way, to use if they want to during litigation.