More than two years have passed since the tragic helicopter crash that killed basketball player Kobe Bryant, his daughter Gianna Bryant, and all others on board the January 26, 2020 flight. Since that time, several cases related to the crash have been working their way through the U.S. District Court for the Central District of California, including two brought by Vanessa Bryant, the widow of Kobe Bryant and mother of Gianna Bryant. One case, brought by Vanessa Bryant against the owners of the helicopter and the estate of the helicopter’s pilot, was settled by the parties and voluntarily dismissed with prejudice on December 14, 2021.[1] The other case was brought by Vanessa Bryant against the County of Los Angeles and others, alleging severe and continuing emotional distress caused by Los Angeles County employees who allegedly took and disseminated graphic photographs of the crash site using their personal smartphones. That case, Vanessa Bryant v. County of Los Angeles, et al., No. CV 20-9582, is headed for trial following U.S. District Judge John F. Walter’s denial of the County’s motion for summary judgment on January 5, 2022.[2] The trial is scheduled to begin on July 26, 2022.[3]
One of the most contentious issues we can expect at trial is proximate causation. It is not disputed that Vanessa Bryant has suffered significant emotional injury. Nonetheless, the County is poised to argue that Vanessa Bryant’s emotional distress was not proximately caused by the alleged tortious acts of the County.[4] One way the County may attempt to do so is by using Vanessa Bryant’s mental health records to show that it was the effects of the helicopter crash itself, and not the subsequent acts of County employees, that caused her emotional distress.
Ordinarily, mental health records are shielded from discovery by the psychotherapist-patient privilege, which was first recognized by the U.S. Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996). Like other evidentiary privileges, however, the psychotherapist-patient privilege may be overcome where a court finds there has been a waiver of the privilege by its holder. This finding—that a waiver of the psychotherapist-patient privilege had occurred—was the conclusion reached by U.S. Magistrate Judge Charles F. Eick in the Vanessa Bryant v. County of Los Angeles et al. action.[5] The magistrate judge’s finding of waiver thus enabled the County to gain discovery of Vanessa Bryant’s mental health records and potentially rely on such records later this year at trial.
In resolving the question of whether Vanessa Bryant had waived the psychotherapist-patient privilege with respect to certain mental health records by “placing in issue in this action the cause and the extent of her allegedly severe and continuing emotional distress,” the magistrate judge was forced to confront an area of the law that has not been resolved by either the Ninth Circuit or the Supreme Court.[6] Indeed, as the magistrate judge noted in his consideration of this issue, there are three competing approaches to determining whether there has been a waiver of the psychotherapist-patient privilege:
- The “broad” approach, which finds waiver any time the privilege holder claims emotional distress in her complaint;[7]
- The “middle ground” approach, which finds waiver only when the privilege holder alleges more than “garden variety” emotional distress;[8] and
- The “narrow” approach, which finds waiver only where the privilege holder affirmatively relies on the privileged psychotherapist-patient documents in support of her own claim.[9]
Of these competing approaches, the magistrate judge quickly dismissed the “narrow approach” as “unfair and inequitable” because it could be used by a plaintiff to, “as a litigation strategy, secrete from the defendants, and from the trier of fact, potentially the most probative (and perhaps the least partisan) evidence bearing on the disputed issues of damages and causation,” when a plaintiff seeks damages for emotional distress allegedly caused by the defendant.[10] In choosing between the remaining two approaches, the magistrate judge noted that although he preferred the “broad” approach, he ultimately did not need to make an explicit choice between the “broad” approach and the “middle ground” approach.[11] Under either the “broad” approach or the “middle ground” approach, the magistrate judge reasoned, Vanessa Bryant had waived the psychotherapist-patient privilege.
Applying the “broad” approach here, or elsewhere, does not require complex analysis—Vanessa Bryant’s complaint seeks damages for emotional distress allegedly caused by the County, the magistrate judge observed, meaning the psychotherapist-patient privilege had been waived under the “broad” approach.[12] The “middle ground” approach, on the other hand, can be more difficult to apply because the term “garden variety” emotional distress has not been uniformly defined by the courts that have applied the approach.[13] In the magistrate judge’s view, resolving the waiver question here would not turn on the particular definition of “garden variety” emotional distress because no reasonable definition of that term could properly encompass the type of extraordinary emotional distress alleged by Vanessa Bryant.[14]
While the magistrate judge did grant the County’s motion to compel production of Vanessa Bryant’s mental health records from January 1, 2017 through the present, it is highly unlikely that any information concerning their contents will ever be made public, even at trial. Any such records that were produced by Vanessa Bryant or her therapist are protected by a protective order in the case.[15]
[1] Vanessa Bryant v. Island Express Helicopters, Inc., No. CV 20-8953, ECF No. 124 (C.D. Cal. Dec. 14, 2021).
[2] Vanessa Bryant v. County of Los Angeles, No. CV 20-9582, ECF No. 227 (C.D. Cal. Jan. 5, 2022).
[3] Vanessa Bryant v. County of Los Angeles, No. CV 20-9582, ECF No. 279 (C.D. Cal. Feb. 4, 2022).
[4] See Vanessa Bryant v. County of Los Angeles, No. CV 20-9582, ECF No. 274, at *2 (C.D. Cal. Feb. 1, 2022) (“Defendants assert their actions did not violate any of Plaintiff’s rights or cause her emotional distress; and that Plaintiff is not entitled to any damage.”)
[5] See Vanessa Bryant v. County of Los Angeles, No. CV 20-9582, ECF No. 157 (C.D. Cal. Nov. 15, 2021).
[6] Id. at 2.
[7] Id. at 3 (citing Doe v. City of Chula Vista, 196 F.R.D. 562, 568 (S.D. Cal. 1999))
[8] Id. (citing Ruhlmann v. Ulster County Department of Social Services, 194 F.R.D. 445, 449 (N.D.N.Y.
2000)).
[9] Id. (citing Vanderbilt v. Town of Chillmark, 174 F.R.D. 225, 229 (D. Mass. 1997)).
[10] Id.
[11] Id. at 4.
[12] See id. at 4.
[13] See id.
[14] See id.
[15] Vanessa Bryant v. County of Los Angeles, No. CV 20-9582, ECF No. 33 (C.D. Cal. Nov. 25, 2020).
