Frank Jakubaitis v. Padilla, Golden and Marshcack (In re Jakubaitis)

Case Type:
Case Status:
Affirmed in part and Reversed in part
BAP No. CC-18-1067-SFL (9th Circuit, Jul 22,2019) Published
The pyschotherapist-patient privilege is limited to communications between a witness and his or her psychotherapist. A witness who claims to be unable to give accurate testimony because he or she is taking medication for treatment of a mental illness may be compelled to testify regarding the identity of the medications and their side effects, even though the information may be subject to to various statutory and constitutional confidentiality and privacy rights. The parts of the bankruptcy court's order permitting questions about the diagnoses and the purpose of the medications were in error.
Procedural context:
A debtor who had been treated for mental health issues appealed an order of the bankruptcy court denying his motion for a protective order for deposition questions regarding the debtor's mental health issues and medication.
This appeal arose out of litigation to revoke the chapter 7 discharge of Frank Jakubaitis and his wife Tara Jakubaitis and for the turnover of undisclosed assets. Mr. Jakubaitis unsuccessfully sought a protective order barring deposition questions on his allegation that certain medications made it impossible for him "to give meaningful or accurate deposition testimony." Jakubaitis specifically challenged a portion of the order that allowed plaintiffs to ask Jakubaitis questions relating to his diagnosis, the medications prescribed and taken, the purposes of the medications, and the side effects of the "drugs." Jakubaitis contended that being required to answer these questions would require him to waive his psychotherapist-patient privilege. The motion for protective order, however, was filed two months after Jakubaitis failed to appear at the first deposition, which resulted in the court awarding sanctions. The bankruptcy court denied the first motion for a protective order, and Jakubaitis did not appeal that order. The deposition took place three months later, and Jakubaitis asserted that the medication presented no impediments to his testimony because he had not taken it on the day of the deposition. Jakubaitis, however, refused to answer questions regarding the medications, their side effects, or the causes of his claimed mental health issues. Plaintiffs obtained an order compelling discovery from Jakubaitis, requiring him to answer the questions that he refused to answer at the deposition. Jakubaitis did not appeal this order. In January 2018, about seven months after the deposition, Jakubaitis filed a second motion for a protective order. This motion claimed the deposition questions violated his pyschotherapist-patient privilege, that the privilege was absolute, and that he had not waived the privilege. Plaintiffs objected, arguing that Jakubaitis had waived the privilege by placing his mental health at issue. In February 2018, the bankruptcy court held a hearing and stated that mere statements that the medication made it impossible for Jakubaitis to have clear recollection made it impossible for the plaintiffs [subtext -- or the court] to assess Jakubaitis' credibility or the accuracy of his testimony. The bankruptcy court denied Jakubaitis' second motion, but ruled that the plaintiffs could not inquire into Jakubaitis' communications with his psychotherapist. The written order, however, was inconsistent with the court's statements from the bench. The written order authorized plaintiffs to ask Jakubaitis about the diagnoses and the purpose of the medications.

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