2.5 Privilege Exceptions in Litigation & Court-Ordered Evaluations

2.5 Privilege Exceptions in Litigation & Court-Ordered Evaluations

Exam Focus: Two tasks in content area 1.2. T15 — comply with laws regarding privilege exceptions to address situations involving client litigation (K39, K40). T16 — comply with laws regarding privilege exceptions in court-appointed or defendant-requested evaluation or treatment (K41, K42).

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The Rule Before the Exceptions

Evidence Code § 1014 creates the psychotherapist-patient privilege; § 1013 identifies the holder; § 1015 obligates the psychotherapist to claim it. Every exception below operates against that baseline, and none of them converts the counselor into the decision-maker. The correct sequence never changes:

Legal demand arrives
   -> Assert privilege (Evid. Code 1015)
   -> Notify the client / client's counsel
   -> The HOLDER waives, or a JUDGE orders production
   -> Produce only what the waiver or order covers

An exception is an argument the requesting party can make to a court. It is not self-executing permission for the counselor to hand over the file.

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Litigation-Based Exceptions (T15)

§ 1016 — The Patient-Litigant Exception

There is no privilege as to a communication relevant to an issue concerning the mental or emotional condition of the patient if that issue has been tendered by the patient (or by a party claiming through the patient, or by a beneficiary of the patient).

Three refinements the exam tests:

1. The patient must tender the issue. A defendant cannot manufacture the exception by asserting that the plaintiff's mental condition is relevant. The plaintiff must put it at issue — for example, by claiming emotional distress damages.
2. The exception is bounded by the condition tendered. A claim of PTSD from a car accident does not open twenty years of unrelated therapy records. California courts require the scope of discovery to be tailored, and clients frequently file protective motions to narrow it.
3. Garden-variety distress. A plaintiff who claims only ordinary upset incident to a legal claim, without alleging a diagnosable condition or ongoing treatment, may not have tendered the issue at all.

§ 1020 — Breach of Duty Arising Out of the Relationship

There is no privilege as to a communication relevant to an issue of breach, by the psychotherapist or by the patient, of a duty arising out of the psychotherapist-patient relationship. This is what allows a defense in:

• a malpractice suit by the client against the counselor;
• a BBS complaint filed by the client;
• a fee collection action brought by the counselor against the client.

The scope is limited to what is relevant to the alleged breach; § 1020 does not open the entire record for other purposes.

Related litigation exceptions

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Court-Appointed and Defendant-Requested Evaluations (T16)

§ 1017 — Court-Appointed Psychotherapist

There is no privilege if the psychotherapist is appointed by order of a court to examine the patient. The person examined must be told before the examination that the relationship is evaluative and that what they say is not privileged.

The critical carve-out: the exception does not apply when the psychotherapist is appointed at the request of the lawyer for the defendant in a criminal proceeding in order to provide the lawyer with information needed to advise the defendant whether to enter a plea based on insanity or to present a defense based on the defendant's mental or emotional condition. In that situation privilege is preserved, because the evaluation is functionally part of the defense's confidential work.

Who requested the appointment?
   COURT, on its own or a party's motion  -> 1017 applies: NO privilege
   DEFENSE COUNSEL in a criminal case, to
   advise on plea or mental-state defense -> privilege PRESERVED

Competence and sanity proceedings

• § 1023 removes privilege in a criminal proceeding to determine the defendant's sanity where the examination was ordered under the applicable Penal Code provision.
• § 1025 removes privilege in a proceeding to determine whether a person is or is not competent, where the psychotherapist was appointed by the court.

In all of these, the evaluating clinician's duty is a notice duty: tell the person, before the evaluation begins, who ordered it, who will receive the report, and that privilege does not attach.

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Practical Protocol When an Exception May Apply

1. Do not decide the legal question. The counselor's job is to assert privilege and let the court rule.
2. Notify the client and the client's attorney immediately, in writing.
3. Object in writing before the production deadline if the client asserts privilege or cannot be reached.
4. If a judge orders production, comply — but produce only the records the order specifies, and ask for in-camera review or a protective order where the order is broader than the tendered issue.
5. Never volunteer more than the exception covers. Over-production is a confidentiality breach even when some disclosure was proper.
6. Document every communication, objection, and production.

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Vignettes

Vignette 1 — The emotional distress claim. A client sues her employer alleging that harassment caused severe depression, and the defense subpoenas ten years of therapy records. Best answer: § 1016 may apply to the condition the client tendered, but not to a decade of unrelated treatment. The counselor asserts privilege, notifies the client's attorney so a protective motion can narrow the scope, and produces only what a court order covers.

Vignette 2 — The BBS complaint. A former client files a Board complaint alleging boundary violations, and the Board requests the client's records. Best answer: § 1020 removes privilege as to communications relevant to the alleged breach of duty arising out of the relationship. The counselor cooperates through counsel and produces what is relevant to the allegations rather than the entire unrelated file.

Vignette 3 — The defense evaluation. A criminal defense attorney retains an LPCC to evaluate the defendant so counsel can decide whether to raise a mental-state defense. Best answer: under the § 1017 carve-out, privilege is preserved. The clinician informs the defendant of the purpose, reports to the retaining attorney, and does not disclose to the prosecution or the court absent the defense's waiver.