• Be Aware of Freudian Slips Psychologist/Patient Privilege in New Jersey
  • May 5, 2003 | Author: Paul C. Johnson
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Cherry Hill Office
  • The New Jersey Rules of Evidence establish a variety of different privileges that restrict the discoverability and/or admissibility of communications between individuals. For example, an accused person in a criminal trial has a right not to be called as a witness and not to testify. N.J.R.E. 501. The recent Enron congressional hearings provided a vivid reminder that an individual has a privilege against providing testimony that may incriminate him in criminal conduct. N.J.R.E. 503.

    Of course, we are all familiar with attorney-client privilege. This privilege, held by the client, prevents disclosure of communications between a client and their attorney in most situations. N.J.R.E. 504. New Jersey law also recognizes a physician-patient privilege, N.J.R.E. 506, newsperson's privilege, N.J.R.E. 508, marital privilege, N.J.R.E. 509, marriage counselor privilege, N.J.R.E. 510, cleric-penitent privilege, N.J.R.E. 511, victim-counselor privilege, N.J.R.E. 517, and social worker privilege, N.J.R.E. 530, and the courts have suggested lukewarm recognition of a privilege of self-critical analysis.

    Privileges are generally premised upon certain conditions, including:

    1. privileged communications originate in confidence;
    2. confidentiality is an essential element of the proper relationship between the parties;
    3. the relationship is one that the community wishes to encourage;
    4. the injury caused by damaging the relationship through disclosure of the communications would be greater than the benefit gained. Kinsella v. Kinsella, 150 N.J. 276 (1997).

    Privileges, in general, run contrary to the generally liberal discovery guidelines under New Jersey court rules. New Jersey Court Rule 4:10-2, provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party [or] if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." In light of the broad scope of discovery in New Jersey, the evidence rules construe privileges narrowly and favor admitting relevant evidence. State v. Schreiber, 122 N.J. 579 (1991).

    All fifty states now recognize the psychotherapist-patient privilege in some form, Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). This privilege has been supported by constitutional privacy interests and by the advancement of the patient-therapist relationship. The New Jersey Supreme Court observed that "the psychotherapist-patient privilege protects the individual from public revelation of innermost thoughts and feelings that were never meant to be heard beyond the walls of the therapist's office." Kinsella at 295. The court also noted that "the [psychologist-patient] privilege makes possible open and, therefore, productive relationships between therapists and patients, thereby advancing the public good accomplished when individuals are able to seek effective mental health counseling and treatment." Kinsella at 295.

    New Jersey Evidence Rule 505, codified at N.J.S.A. 45:14B-28, created the statutory psychotherapist-patient privilege in New Jersey. The New Jersey Legislature chose to endow the psychotherapist-patient privilege with the same sanctity as the attorney-client privilege. Arena v. Saphier, 201 N.J.Super. 79 (App. Div. 1985). However, like the attorney-client privilege, the psychotherapist-patient privilege is not absolute and New Jersey courts have carved out exceptions to the privilege.

    In order to pierce a privilege, the party seeking disclosure must establish:

    1. a legitimate need for the evidence;
    2. that the evidence must be relevant and material to the issue before the court; and
    3. that the information cannot be secured from any less intrusive source. In Re Kozlov, 79 N.J. 232 (1979).

    Privileges may also be waived if the privileged communications have been put "in issue" by the party holding the privilege. In the case of the psychologist-patient privilege, the patient may waive the privilege by placing his or her mental health "in issue." The Appellate Division in Arena held that a plaintiff had waived this privilege by placing her emotional and mental state in issue in a medical malpractice action based in part on psychological distress. The Appellate Division noted that, when privileged communications have been placed "in issue" by a patient, the court must determine whether or not the party seeking disclosure of the communications has pierced the privilege by applying the three Kozlov factors listed above.

    Caution must be exercised when seeking psychological records, even if the individual's emotional and mental health has been placed "in issue" in a lawsuit. The Appellate Division recently imposed strict sanctions upon an attorney who had subpoenaed a plaintiff's psychotherapy records. Cavallaro v. Jamco Property Management, 334 N.J.Super. 557 (App. Div. 2000). Of course, in Cavallaro, defense counsel did not endear themselves to the court since counsel subpoenaed the therapist's records when the plaintiff had not claimed any emotional or psychological distress and had not placed his mental or emotional state "in issue." Defense counsel also obtained and reviewed the therapist's records prior to the return date of the subpoena.

    The court entertained the plaintiff's motion to quash the subpoena and found that the privilege had not been pierced. Since the barn door had already been opened by defense counsel's examination of the therapist's records, the court imposed the extreme sanction of disqualification of defense counsel. The court recognized that, because privileged information was supplied to defense counsel, "this court had no alternative, as a result of counsel's egregious conduct, than to quash the subpoenas and disqualify counsel from further representation of the defendant in this case." Cavallaro at 571-572.

    The court also expressed strong disapproval of various procedural aspects of defense counsel's subpoenas, noting that the subpoenas violated New Jersey court rules. Specifically, the court observed that the subpoenas issued to the therapist required the therapist to appear for deposition at defense counsel's office rather than in the therapist's own office as required of treating physicians under the court rules. R. 4:14-7. Moreover, the subpoena noted that the therapist could avoid appearing for deposition if the therapist simply provided the subpoenaed records on or before the return date of the subpoena, thereby short circuiting the time frame for filing any motion to quash the subpoena. Both the trial court and the Appellate Division noted that defense counsel's violation of New Jersey court rules as to the issuance of the subpoenas was "so egregious that counsel's presence in this case could no longer be tolerated." Cavallaro at 572.

    These cases suggest that psychological and mental health records should only be sought when the psychotherapist-patient privilege can be pierced. Once the privilege has been pierced, caution must be exercised in properly obtaining the records via subpoena. A Freudian slip here could result in disqualification from the case.