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Psychotherapist-Patient Privilege Shields ADA Plaintiff’s Mental Health Records

In an ADA and FMLA action, a former-Baker & McKenzie LLP associate succeeded in shielding his records of mental health treatment.  Judge Jeffrey Cole held that where a discrimination plaintiff seeks damages for “garden variety” emotional distress and has not put his mental state at issue, i.e., by seeking damages for “severe” emotional distress or claiming a mental disability, records of mental health treatment are shielded by the psychotherapist-patient privilege.  This decision will be helpful for whistleblowers when combating an aggressive defense counsel using a mental examination to harass or intimidate the whistleblower or to buttress the employer’s portrayal of the whistleblower as off balance.

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