Awalt v. Marketti, 287 F.R.D. 409 (N.D. Ill. 2012):

A threshold issue of whether Mrs. Awalt can assert the psychotherapist-patient privilege on behalf of her deceased husband arises. Whether the psychotherapist-patient privilege survives the death of the patient, or is otherwise affected by the patient's death, is a matter that has not been conclusively decided. There is a paucity of decisions on the issue of whether the federal common law psychotherapist-patient privilege (as opposed to parallel state-law psychotherapist-patient privileges) survives the death of the patient. The only two courts to have addressed the issue since Jaffee that this Court is aware of both held that the privilege can be asserted on behalf of the patient, even where the patient is deceased. See, e.g., Richardson v. Sexual Assault/Spouse Abuse Resource Center, Inc., 764 F. Supp. 2d 736, 741 (D. Mary. 2011) (concluding that an unlicenced counselor working under the supervision of a licensed social worker had standing to assert the privilege on behalf of the patient); United States v. Hansen, 955 F. Supp. 1225 (D. Mont. 1997) (concluding that a psychotherapist has standing to assert the privilege on behalf of a deceased patient and stating that "[m]ost jurisdictions allow a psychotherapist to assert the privilege on behalf of a patient" and citing as examples Ala. R. Ev. Rule 503(c); Fla. Stat. Ann. § 90.503(3)(d); Haw.Rev.Stat. § 626-1, R. 504.1(c); N.J. R. Ev. Rule 505; Okla. Stat. Ann. tit. 12, § 2503(C); Ore.Rev.Stat. § 40.230 Rule 504(3)(d)); see also 1 Kenneth S. Croun et al., McCormick on Evidence § 102, at 462 (6th ed. 2006) (recognizing that the privilege continues to apply after the patient's death). The majority of courts that recognized the psychotherapist-patient privilege prior to Jaffee also concluded that the privilege could be asserted on behalf of the patient, while a minority of pre-Jaffe cases concluded that the patient's death extinguished the privilege. Compare In re August, 1993 Regular Grand Jury (Medical Corp. Subpoena II), 854 F. Supp 1392, 1397-1398 (S.D. Ind. 1994) (holding that a medical corporation could assert the psychotherapist-patient privilege on behalf of patients in the context of a grand jury subpoena that sought communications between patients and psychotherapists) and Cunningham v. Southlake Center for Mental Health, 125 F.R.D. 474 (N.D. Ind. 1989) (recognizing that under proposed Federal Rule of Evidence 504, the personal representative of a deceased patient may claim the privilege) with Dixon v. City of Lawton, Okl., 898 F.2d 1443, 1451 (10th Cir. 1990) (holding that the psychotherapist-patient privilege, which the court assumed existed under federal common law without deciding that it did in fact exist in the Tenth Circuit, does not apply after the patient's death).

Although the federal common law of privileges is supreme, state privilege law may be considered by a court as instructive authority in determining the proper scope of the privilege. See, e.g., Clemmer v. Office of Chief Judge, 544 F. Supp. 2d 722, 725 (N.D. Ill. 2008) ("Although the federal common law is supreme with respect to privileged information, state law may be considered 'as one of the factors in making the fact intensive determination of whether or not the asserted privilege applies.'") (quoting United States v. State of Ill., 148 F.R.D. 587, 590 (N.D. Ill. 1993)). Thus, although the issue of privilege in this federal question suit is governed by the federal common law of privileges, a "strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." Memorial Hospital For McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981); see also Jaffee, 518 U.S. at 12-13 ("the policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one."). Under the Illinois psychotherapist-patient privilege, which is codified in the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/1 et seq., the privilege survives the death of the patient subject to two narrow exceptions. One of these exceptions holds that a decedent's privilege over their psychological records is waived in civil proceedings where the mental or physical conditions of the patient is introduced as an element of the plaintiff's claim. See 740 ILCS 110/10(a)(2). The Illinois courts have construed this exception very narrowly, and have confined it to cases in which the plaintiff's damages include an affirmative claim for mental loss. See Thiele v. Ortiz, 165 Ill. App. 3d 983, 520 N.E.2d 881, 887-888, 117 Ill. Dec. 530 (Ill. App. Ct. 1988) (citing Webb v. Quincy City Lines, Inc., 73 Ill. App. 2d 405, 219 N.E.2d 165 (Ill. App. Ct. 1966)). Under Illinois law, a claim for loss of society under the Illinois Wrongful Death Act does not place the decedent's mental condition at issue to fall within the exception to the protections provided by the Mental Health and Developmental Disability Confidentiality Act. See Thiele, 520 N.E.2d at 888. Thus, the policy of Illinois with respect to the psychotherapist-patient privilege is that the privilege survives the death of the patient and that bringing a claim under the Illinois Wrongful Death Act, as Mrs. Awalt has done here, does not waive the decedent's privilege to prevent his psychological records from compelled disclosure.

In Jaffee the Supreme Court closely analogized the psychotherapist-patient privilege to the attorney-client privilege, and observed that both are "rooted in the imperative need for confidence and trust." See Jaffee, 518 U.S. at 10 (quoting Trammel v. United States, 445 U.S. 40, 51, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980)). The Jaffee Court, throughout much of its decision, analyzed the confidential communications protected by the psychotherapist-patient privilege in accordance with the protections created by the attorney-client privilege. The Court essentially held that the psychotherapist-patient privilege is identical in all material respects to the attorney-client privilege. See Koch, 489 F.3d at 390 (recognizing that the Jaffee Court closely analogized the attorney-client privilege to the psychotherapist-patient privilege and held them to be substantially similar); In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 76 (1st Cir. 1999) ("The Jaffee Court justified the psychotherapist-patient privilege in terms parallel to those used for the attorney-client privilege."); see, e.g., Fitzgerald v. Cassil, 216 F.R.D. 632, 636 (N.D. Cal. 2003) ("In Jaffee, the Supreme Court repeatedly analogized the psychotherapist-patient privilege to the attorney-client privilege. There is good reason, therefore, to treat the two privileges similarly"); Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (citing Jaffee, 518 U.S. at 10) (noting that the Supreme Court in Jaffee found the attorney-client privilege "to be analogous to the psychotherapist-patient privilege"); Vanderbilt v. Town of Chilmark, 174 F.R.D. 225, 229 (recognizing the close analogy the Jaffee Court made between the attorney-client privilege and the psychotherapist-patient privilege).

Only two years after its decision in Jaffee, the Supreme Court held in Swidler & Berlin v. United States, 524 U.S. 399, 410-411, 118 S. Ct. 2081, 141 L. Ed. 2d 379 (1998), that the attorney-client privilege survives the death of the party who holds the privilege. In light of the close connection made by the Jaffee Court between the psychotherapist-patient privilege and the attorney-client privilege, it is reasonable to conclude that Swidler, which holds that the attorney-client privilege survives the death of the party who holds the privilege, likewise applies to the psychotherapist-patient privilege. Given the federal caselaw holding that the privilege may be asserted on behalf of the patient and that it survives the death of the privilege holder; the nature of Illinois's psychotherapist-patient privilege, which is instructive authority in this nondiversity case given the strong policy in favor of state and federal comity with respect to testimonial privileges; in addition to the Supreme Court's treatment in Jaffee of the psychotherapist-patient privilege as materially similar to the attorney-client privilege (as well as subsequent lower courts' similar treatment of the psychotherapist-patient privilege as essentially identical in procedural nature to the attorney-client privilege), which the Supreme Court held survives the death of the privilege holder, this Court concludes that the psychotherapist-patient privilege survives the death of the patient and may be asserted on their behalf by a plaintiff with proper standing to assert the privilege. Accordingly Mrs. Awalt may assert the psychotherapist-patient privilege on behalf of her deceased husband to prevent from compelled disclosure his psychological records that are properly protected by the privilege. The question then becomes whether the privilege has been waived in this case.