The Plaintiff's Past: Limits on Inquiries into the Plaintiff's Sexual and Medical History in Sexual-Harassment Cases

In many sexual-harassment cases, the defendants argue that the conduct alleged was not "unwelcome", or that the work environment created by that conduct was not "intimidating, hostile, or offensive" to the plaintiff. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-68, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49, 59-60 (1986) (elements of sexual harassment under Title VII); Minn. Stat. §363.01, subds. 14 & 41 (1994) (definition of sexual harassment under MHRA).

To support this argument, defendants commonly attempt to inquire into the plaintiff's sexual history generally, and into specific instances of the plaintiff's past sexual conduct. Plaintiffs frequently object to such inquiries, contending they are designed less to elicit relevant evidence than to embarrass, humiliate, and punish the plaintiff.

Until recently, the battleground on this issue was limited in both federal and state court to rules such as Rules of Evidence 401-406 (relevancy; unfair prejudice; character evidence; habit) and to Rule of Civil Procedure 26 (scope of discovery, protective orders).

Evidentiary Rule

For the past two years, however, we have had an evidentiary rule in federal court which addresses this issue directly and which substantially increases the protection available to plaintiffs. (Fed.R.Evid. 412) However, no such amendment has been made to the corresponding Minnesota rule, where the issue still turns upon the above-mentioned rules.

When it comes to inquiries into a plaintiff's medical history and current medical condition, however, it is the state-court rule which provides greater protection. Rule 35 of the Minnesota Rules of Civil Procedure distinguishes between a plaintiff's physical and mental conditions, and requires separate waivers with respect to each condition. Its federal counterpart does not.

The purpose of these materials is to describe the limits upon the inquiry defendants are permitted to make into a plaintiff's sexual and medical history, and how those limits differ between federal and state courts.

 

Plaintiff's Sexual History - Federal Court

Prior Rule (Prior to Dec. 1, 1994)

Prior to the 1994 amendment, Rule 412 of the Federal Rules of Evidence limiting the admissibility of evidence relating to the victim's sexual history applied only to criminal cases. Thus, admissibility was primarily governed by Federal Rules of Evidence 402 (relevancy), 403 (unfair prejudice, confusion of issues, misleading the jury, etc.), 404 (evidence of character and other wrongs or acts), and 406 (habit, routine). Discovery disputes were resolved under Federal Rule of Civil Procedure 26, with relevance determined by the evidentiary rules.

Statement of the General Rule under Prior Case Law

The general rule developed in the federal courts prior to the 1994 amendment to Rule 412 can be described as follows: inquiry into the sexual behavior of the plaintiff was permitted only to the extent the inquiry focused on sexually-oriented conduct

1. which was work-related conduct, and
2. of which the alleged harasser had actual knowledge. Sexual conduct removed in time or place from the work environment, whether known to the harasser or not, was generally held irrelevant under Rule 26 and Rules 401-406, both during discovery and at trial.

Continued Significance of the Prior Rule

Although the case law developed prior to the 1994 amendment has now been superseded by the new Rule 412, it remains highly useful to Minnesota state-court practitioners. As mentioned above, the new federal rule has no counterpart under the Minnesota Rules. Since the current Minnesota evidence and civil-procedure rules correspond in all significant respects to the federal rules prior to the amendment, prior federal case law serve as persuasive authority, especially where no state-court decision directly on point is available.

In addition, of course, knowledge of the prior case law makes it easier to appreciate the changes made by the 1994 amendment to Rule 412.

Kinds of Evidence Held Relevant

The following kinds of evidence were held discoverable or admissible prior to the 1994 amendment in cases where the discoverability or admissibility of the evidence in question was the precise issue before the Court.

• Sexually-oriented Speech and Dress; Personal "Fantasies"
• Fondling Co-worker at Work
• Pinning up of Sexually-suggestive Cards at Workstation
• Sending Sexually-oriented Card to a Male Co-worker
• Making Sexually-oriented Jokes at Wor
• Discussing Sex Life at Work
• Sexually-suggestive Photographs of the Plaintiff

In Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), Justice Rehnquist characterized evidence of the plaintiff's sexually provocative speech or dress as "obviously relevant" to the issue of whether she found her supervisor's sexual advances "unwelcome". Id., 477 U.S. at 69, 106 S.Ct. at 2399, 91 L.Ed.2d at 61.

In an action for sexual harassment brought by female employees of a police department, the defendants were allowed to depose a male police officer about an incident in which he was allegedly held down by other male officers at work and "fondled" by one of the female plaintiffs. To the extent the alleged harasser knew of the incident, it was held to be relevant to the issue of "unwelcomeness". Mitchell v. Hutchings , 116 F.R.D. 481, 484, 486 (D.Utah 1987).

A male fired for sexual harassment sued his former employer for "wrongful termination", and served a deposition notice on the female employee who had made the harassment allegations against him. The woman, who was not a party to this wrongful-termination proceeding, sought a protective order to prohibit deposition inquiries into her sexual behavior at work, behavior which allegedly included some of the above listed behavior.

The Court found the evidence relevant, and denied her motion. In so doing, the Court noted that the party seeking a protective order bears the burden of proof under Rule 26, that the definition of relevance under the discovery rules is very broad, and that the Supreme Court in Meritor Savings Bank v. Vinson, supra had held that sexually-provocative behavior at work is relevant to the issue of "unwelcomeness". The Court stated as follows:

[P]ast sexual conduct [by the woman] with fellow Amoco employees which was know[n] to [the alleged harasser] would likewise be relevant in assessing whether [the harasser's] actions toward her were offensive. Weiss v. Amoco Oil Co., 142 F.R.D. 311, 315 (S.D.Iowa 1992).

The Court also found the evidence relevant to the issue of the thoroughness of the employer's investigation which preceded the termination. Id. at 316.

The defendants were allowed to depose a photographer who had taken sexually-suggestive photographs of one or more of the plaintiffs, but only with respect to those photographs which were publicly displayed at the work place or privately shown to the alleged harasser. Mitchell v. Hutchings, 116 F.R.D. 481, 483, 486 (D.Utah 1987).

See also, Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559, 565 (8th Cir. 1992) ("Burns I"), where nude photographs of the plaintiff in two motorcycle magazines and in a calendar were brought to work by and circulated among her male co-workers, the Court ruled the evidence admissible, stating:

Evidence regarding a plaintiff's sexually provocative speech or dress is relevant "in determining whether he or she found particular sexual advances unwelcome." [Citing Meritor Savings Bank v. Vinson, supra] Thus, in making the determination as to whether the conduct directed at Burns was unwelcome, the nude photo evidence, though relating to an activity engaged in by Burns outside of the work place, may be relevant to explain the context of some of the comments and actions directed by [male] coworkers to Burns. See [Meritor Savings, supra] (trier of fact must consider totality of circumstances in determining existence of sexual harassment). Burns I , 955 F.2d at 565.

Kinds of Evidence Held Not Relevant

The following kinds of evidence have been held to be outside the scope of permissible discovery, even prior to the 1994 amendment, in cases where discoverability was the precise issue before the Court.

Identities of Persons with whom the Plaintiff had had Sexual Relations in Past Ten Years

In Priest v. Rotary, 98 F.R.D. 755 (N.D. Calif. 1983), the plaintiff claimed her former boss sexually harassed her while she worked for him as a cocktail waitress over a period of five months, and then terminated her for rejecting his advances. The defendant countered that the plaintiff had been the sexual aggressor in their relationship, and that he had fired her because she was trying to "pick up" customers in his bar.

In particular, he contended that the plaintiff had shown a pattern of engaging in sexual relationships for economic gain, and therefore had a motive to bring a false harassment charge against him when he rejected her advances.

During the plaintiff's deposition, the defendant's attorney asked her to identify all persons with whom she had had sexual relations in the past ten years, as well as all person she had propositioned or who had propositioned her during that period. She refused to answer. The defendant moved to compel answers, and the plaintiff sought a protective order.

The Court analyzed the issue under the relevance standard of Fed.R.Civ. P. 26(b) and ruled all the evidence "not discoverable". In reaching this determination, the Court separately considered at some length and ruled out each of the defendant's arguments that relevance was supplied by Fed.R.Evid. 406 (habit or routine) ("Defendant's characterization of plaintiff's conduct as habit is clearly a thinly disguised attempt to seek character evidence." [Id. at 759]), and Fed.R.Evid. 404(b) (motive) ("The probative value of each of the suggested inferences is so weak that it could not outweigh the obvious risk of prejudice which evidence about a person's past intimate relationships entails." [Id. at 760]).

At the end of its opinion, the Court announced this general rule:

By carefully examining our experience with rape prosecutions . . . the courts and bar can avoid repeating in this new field of civil sexual harassment suits the same mistakes that are now being corrected in the rape context. The courts and Congress have concluded that even in the criminal context, the use of evidence of a complainant's past sexual behavior is more often harassing and intimidating than genuinely probative, and the potential for prejudice outweighs whatever probative value such evidence may have. Certainly, then, in the context of civil suits for sexual harassment, and absent extraordinary circumstances, inquiry into such areas should not be permitted, either in discovery or at trial. Priest , supra at 762.

Greater Protection ot Sexual Harassment Plaintiffs

But see Sanchez v. Zabihi, 166 F.R.D. 500 (D.N.M. 1996), decided well after Rule 412 was amended, supposedly to give greater protection to sexual-harassment plaintiffs. In that case, the defendant moved to compel answers to interrogatories about whether or not at any time in the past ten years the plaintiff

1. had made any "personal, romantic, or sexual advances" toward any co-worker,
2. had had any such advances made toward her by a co-worker, or
3. had had "a close personal, romantic, or sexual relationship, however brief", with any co-worker, and if so, to provide all the gory details.

The Magistrate Judge, surprisingly enough, ordered the plaintiff to respond to the interrogatory. The judge did, however, reduce the relevant time period from ten to three years, strike the term "personal" from the interrogatory on the ground of vagueness, and relieve the plaintiff of any obligation to provide information with respect to any person who later became her spouse. The judge directed the answers be served under seal and be examined only by the defendant's attorney absent a further Court order.

Unspecified "Sexual Activity" with Co-workers

In a sexual-harassment proceeding commenced by a university employee against the university and its former president, the Court prohibited the defendants from inquiring during discovery into the plaintiff's "sexual history" where the only argument offered in its favor was that evidence of prior sexual relationships between the plaintiff and other males with authority over her in exchange for money or favors would be relevant the plaintiff's "motive, plan, or scheme" under Fed.R.Evid. 404(b).

The Court held that "[t]his sort of generalized allegation that there might be some 404(b) evidence somewhere in the case is insufficient to overcome the 'potential of the requested discovery to harass, intimidate and discourage the plaintiff in her efforts to prosecute her cause.'" Longmire v. Alabama State University , 151 F.R.D. 414, 418 (M.D.Ala. 1992), quoting Priest, supra at 761.

Depositions of Persons with whom Plaintiffs had Past Romantic Relationships

Deposition subpoenas were served upon males with whom the plaintiffs had allegedly had romantic relationships in the past. The Court quashed the subpoenas pending the production of evidence by the defendants that the witnesses had information which was relevant.

The Court ruled that "evidence relating to the work environment where the alleged sexual harassment took place is obviously relevant, if such conduct was known to defendant . . [but] evidence which is remote in time or place to plaintiffs' working environment is irrelevant." Mitchell v. Hutchings , 116 F.R.D. 481, 484 (D.Utah 1987).

Evidence of Promiscuity to Show Plaintiff "Not Offended" by Sexually-oriented Conduct. After failing to prevail on their argument that the plaintiff's past romantic relationships away from the work place were relevant on liability, the defendants argued that such evidence ought to be considered on the issue of damages because "sexually promiscuous people are less likely to be offended by sexual harassment, and thus less damaged, than those who are less active." After noting that the argument had "a persuasive ring", the Court rejected it, stating:

Past sexual conduct does not, as defendants would argue, create emotional calluses that lessen the impact of unwelcomed sexual harassment. The fact that the plaintiffs may welcome sexual advances from certain individuals has absolutely no bearing on the emotional trauma they may feel from sexual harassment that is unwelcome. Past sexual conduct does not callous one to subsequent, unwelcomed sexual advancements. This court cannot condone a wholesale inquiry into the past sexual conduct of the plaintiffs under such a theory. Mitchell v. Hutchings , 116 F.R.D. 481, 485 (D. Utah 1987).

See also Burns II , where the Eighth Circuit Court of Appeals isolated the faulty reasoning in such arguments. After remand following the first appeal, the trial court had ruled that, because the plaintiff had posed for nude pictures in lewd and vulgar magazines, she could not have found the uninvited sexual advances and harassment by her co-workers to be offensive.

In an attempt to support its conclusion, the trial court reasoned that the plaintiff "'would not have been offended if someone she was attracted to did or said the same thing.'" In rejecting this reasoning, the appellate panel stated as follows:

This rationale would allow a complete stranger to pursue sexual behavior at work that a female worker would accept from her husband or boyfriend. This standard would allow a male employee to kiss or fondle a female worker at the workplace. Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 963 (8th Cir. 1993).

Current Rule

Rule 412 of the Federal Rules of Evidence (Dec. 1, 1994 onward). Effective December 1, 1994, Rule 412 of the Federal Rules of Evidence was extended to cover civil proceedings, and now reads in relevant part as follows:

(a) Evidence generally inadmissible. The following evidence is not admissible in any civil . . . proceeding involving alleged sexual misconduct except as provided in subdivision (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions.

(1) . . .

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

Applicability to Sexual-harassment Cases

Amended Rule 412 clearly applies to sexual-harassment cases. See Advisory Committee Notes to 1994 Amendments to Rule 412, reprinted at Federal Civil Judicial Procedure and Rules at 345 (West 1996) ("Rule 412 will ... apply in a Title VII action in which the plaintiff has alleged sexual harassment." [First column] "...Rule 412 applies in any civil case in which a person claims to be the victim of sexual misconduct, such as actions for sexual battery or sexual harassment." [Second column]); see also Barta v. City and County of Honolulu, 169 F.R.D. 132 (D. Hawaii 1996) (applying amended Rule 412 to sexual-harassment case); Sanchez v. Zabihi, 166 F.R.D. 500 (D.N.M. 1996) (same); Sheffield v. Hilltop Sand & Gravel Co., Inc., 895 F.Supp. 105 (E.D.Va. 1995).

Construction of the 1994 Amendment

The Advisory Committee Notes to the 1994 amendment provide guidelines as to the purpose and meaning of the new Rule 412, including the following:

• The purpose of the rule is to "safeguard the alleged victim against the invasion of privacy, potential for embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process." Advisory Committee Notes to 1994 Amendments to Rule 412, reprinted at Federal Civil Judicial Procedure and Rules at 344 (West 1996).

• "Past sexual behavior connotes all activities that involve actual physical conduct, i.e., sexual intercourse or sexual contact", including matters such as the use of contraceptives, birth of an illegitimate child, and evidence of venereal disease. Id . at 345.
• All evidence offered to prove a sexual predisposition is covered, including "evidence such as that relating to the alleged victim's mode of dress, speech, or life-style ... " Id . at 345.
• The presumptive bar against evidence relating to a victim's sexual behavior or sexual predisposition applies "whether offered as substantive evidence or for impeachment". Id . at 344.
• The rule does not bar evidence in an action for defamation when offered to prove the truth of the allegedly defamatory statements or to prove the plaintiff's reputation was not damaged. Id . at 344-45.

Substantive Changes Made by the 1994 Amendment

There are three main substantive changes made by the 1994 amendment to the balancing test the Court must apply.

1. It reverses the usual procedure set forth in Rule 403. Now the burden is on the proponent of the evidence to demonstrate admissibility, not on the opponent to justify exclusion.
2. It greatly increases the showing which must be made to establish admissibility. Under the old analysis under Rule 403, there was a heavy presumption in favor of admissibility; the probative value of the evidence had to be shown to be substantially outweighed by the dangers of admission for the evidence to be excluded. Under amended Rule 412, the presumption goes the other way; the evidence will be admitted only if it is shown that the probative value substantially outweighs the dangers.
3. It puts "harm to the victim" on the scale for purposes of the balancing test in addition to prejudice to the parties.

Procedure to Determine Admissibility under Rule 412

Rule 412 specifies the following procedure:

. . .
(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subdivision (b) must

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim, or when appropriate, the alleged victim's guardian or representative. . . .

(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

Applicability of Rule 412 to Discovery

It is clear that Rule 412, although by its terms it governs only admissibility, applies to discovery as well.

The procedures set forth in subdivision (c) do not apply to discovery of a victim's past sexual conduct or predisposition in civil cases, which will be continued to be governed by Fed.R.Civ.P. 26(c) to protect the victim against unwarranted inquiries and to ensure confidentiality.

Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery.

In an action for sexual harassment, for instance, while some evidence of the alleged victim's sexual behavior and/or predisposition in the workplace may perhaps be relevant, non-work place conduct will usually be irrelevant. Cf. Burns v. McGregor Electronic Industries, Inc ., 989 F.2d 959, 962-63 (8th Cir. 1993) (posing for a nude magazine outside work hours is irrelevant to issue of unwelcomeness of sexual advances at work). Confidentiality orders should be presumptively granted as well.

Advisory Committee Notes to 1994 Amendments to Rule 412, reprinted at Federal Civil Judicial Procedure and Rules at 346 (West 1996). See also C.Wright & K.Graham, 23 Federal Practice and Procedure §5383.1 n. 15 at 174 (Supp. 1996) (substantive and procedural safeguards of Rule 412[c] would be undercut if not applied to discovery); Barta v. City and County of Honolulu , 169 F.R.D. 132, 135 (D.Hawaii 1996) (although a rule of admissibility, Rule 412 must be used to determine relevance for purposes of discovery issues).

Sexual-Harassment Cases in Which Rule 412 Has Been Applied

There are very few published sexual-harassment decisions in which amended Rule 412 has been directly at issue. They include the following cases.

Rule 412 Procedure Must be Followed

Sheffield v. Hilltop Sand & Gravel Co., Inc ., 895 F.Supp. 105 (E.D.Va. 1995). The plaintiff alleged sexual harassment by the restaurant manager throughout the period she worked as a waitress, cashier, bartender, and cook. She filed a motion in limine to exclude all evidence pertaining to her sexual history with anyone other than the alleged harasser.

The defendant countered with a motion for leave to submit evidence under Rule 412. The defendant's motion was supported by affidavits of co-workers to the effect that the plaintiff engaged in sexually-provocative conversation and activities at work. The defendant's motion papers were not filed under seal as required by Rule 412(c).

The plaintiff did not object to any testimony the alleged harasser might give, but did object to other co-workers testifying about such matters.

The defendant argued that the evidence it was offering did not fall under Rule 412, but that only the Rule 403 balancing test applied. The Court rejected that argument, noting that the evidence consisted primarily of the plaintiff's descriptions to co-workers of her sex life with her husband and her use of generally vulgar language at work, precisely the kind of "behavior" and "predisposition" evidence covered by Rule 412.

Rather than conducting the balancing analysis of Rule 412, however, the Court simply denied the defendant's motion and granted the plaintiff's motion for a protective order based upon the defendant's failure to file the motion papers and affidavits under seal in flagrant violation of Rule 412.

The Court stated: "By ignoring the express requirements of Rule 412(c), the defendant frustrated Rule 412's objectives and presumptively inflicted harm upon the plaintiff . . . Because of the strong public policy concerns underlying Rule 412, defendant's flagrant conduct cannot go unpunished." Id. at 109.

On-duty Conduct, and Conduct with Named Defendant Discoverable

Barta v. City and County of Honolulu, 169 F.R.D. 132 (D.Hawaii 1996). A female police officer alleged sexual harassment, race and gender discrimination, and a variety of common-law claims against her employer. During the depositions of witnesses, defense counsel inquired into the plaintiff's sexual relationship with one of the witnesses, and about rumors another witness heard about the plaintiff's sexual involvement with other officers.

The plaintiff sought a protective order prohibiting any discovery inquiries into her sexual conduct outside the workplace. The Court ruled that Rule 412 must be consulted to determine "the proper scope of discovery" (Id. at 135), and issued a Protective Order providing as follows:

• Sexual conduct of the plaintiff on-duty, at the workplace, or with a named defendant was within the scope of permissible discovery (Id. at 135)
• Sexual conduct off-duty, outside the workplace, with persons other than a named defendant was not discoverable (Id. at 136)
• Inquiry into the identity of people the plaintiff dated while employed was permissible if intended to identify sources of information pertaining to defenses or damages, but follow-up discovery as to whether the plaintiff had sexual relations with such people was disallowed unless it involved a named defendant (Id. at 137)

"Sexual-aggressor" Defense

Sanchez v. Zabihi , 166 F.R.D. 500 (D.N.M. 1996). The plaintiff alleged sexual harassment and some common-law claims. The defendant asserted what the Court called a "sexual aggressor" defense, namely, that the sexual advances had been made by the plaintiff, not the defendant.

The matter before the Court arose on the defendant's motion to compel answers to interrogatories about whether or not at any time in the past ten years the plaintiff

1. had made any "personal, romantic, or sexual advances" toward any co-worker,
2. had had any such advances made toward her by a co-worker, or
3. had had "a close personal, romantic, or sexual relationship, however brief", with any co-worker, and if so, to provide the details.

The Court found that Rule 412 applied, even though the matter concerned discovery rather than admissibility. The Court rejected the argument that the evidence was admissible under Rule 406 (habit). The Court was impressed, however, with the defendant's "sexual aggressor" theory.

Noting that the Court did not have before it the specific evidence the defendant contended he could produce, the Court directed the plaintiff to answer the interrogatories, as modified by the Court, and serve them under seal for the eyes of the defendant's attorney only pending further Court order.

The modifications made by the Court to the interrogatories included reducing the relevant time period from ten to three years, striking the term "personal" from the interrogatory on the ground of vagueness, and relieving the plaintiff of any obligation to provide information with respect to any person who later became her spouse.

Sexual Conduct Specific to Claims Admissible; Other Sexual Conduct Not Admissible

In Blackmon v. Buckner, 932 F.Supp. 1126 (S.D.Ind. 1996). Where the plaintiff, an inmate in a county jail, alleged that he was sexually assaulted by fellow inmates, and sued prison officials for constitutional violations, evidence that the plaintiff engaged in sexual teasing at the jail and that he had a homosexual relationship with another inmate was ruled admissible under Rule 412. Evidence of his homosexual relationships before incarceration in the jail where the alleged assault occurred was excluded.

State Court

Given the paucity of state-court decisions on this issue, and the established practice of Minnesota state courts looking to federal decisions under Title VII for guidance in actions under the Minnesota Human Rights Act, the best authority on this issue is found in the pre-1994-amendment federal case law summarized above.

In short, the analysis for admissibility will turn on Minnesota Rules of Evidence 401 (relevance), 403 (exclusion where probative value substantially outweighed by dangers of admission), 404 (character and other-acts evidence), and 406 (habit, routine).

Discovery disputes turn on Rules 26.02(a) (relevant matters discoverable) and 26.03 (protective orders), with relevance determined by Rules of Evidence 401-406, precisely the same analysis used in the federal courts prior to the 1994 amendment to Rule 412.

Plaintiff's Medical History

Rule of Civil Procedure 35 (State and Federal)

The difference between the federal and state court rules on independent medical examinations and waivers of privilege is evident from a comparison of language of the two versions of Rule 35.

State - Civil Procedure Rule 35.01

• In an action in which the physical or mental condition or the blood relationship of a party ... is in controversy,
• the court in which the action is pending may order the party to submit to ... a physical, mental or blood examination by a suitably licensed or certified examiner.
• The order may be made only on motion for good cause shown and upon notice ... and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is made.

State - Civil Procedure Rule 35.03

If at any stage of an action a party voluntarily places in controversy the physical, mental, or blood condition of that party ... , such party thereby waives any privilege that party may have in that action regarding the testimony of every person who has examined or may thereafter examine that party ... with respect to the same physical, mental, or blood condition.

State - Civil Procedure Rule 35.04

When a party has waived medical privilege pursuant to Rule 35.03, such party within 10 days of a written request by any other party,

1. shall furnish to the requesting party copies of all medical reports previously or thereafter made by any treating or examining medical expert, and
2. shall provide written authority signed by the party of whom request is made to permit the inspection of all hospital and other medical records, concerning the physical, mental, or blood condition of such party as to which privilege has been waived.

Federal - Civil Procedure Rule 35(a)

• When the mental or physical condition (including the blood group) of a party ... , is in controversy,
• the court in which the action is pending may order the party ... to submit to a physical or mental examination by a suitably licensed or certified examiner ...
• The order may be made only on motion for good cause shown and upon notice ... and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

The Federal Rules of Civil Procedure have no counter-part for the Minnesota Rules of Civil Procedure 35.03 and 35.04.

State and Federal Rules 35 Compared

Similarities

The two rules are similar in these respects:

1. Both require that the plaintiff's condition (physical or mental) be "in controversy" before an adverse examination can be ordered.
2. Both give the trial court discretion to order the examination.
3. Both require the moving party to establish "good cause".
4. Both require notice, and a specification of the details of the examination to be conducted.

Differences

The two rules differ in these respects:

1. The Minnesota Rule addresses the issue of privilege while the federal rule does not. (See the section on the federal law of privileges below.)
2. Under the language of the Minnesota Rule and the cases which apply it, a waiver of a privilege with respect to the plaintiff's mental or emotional condition does not constitute a waiver with respect to her physical condition. See e.g., Cerro Gordo Charity v. Fireman's Fund Amer. Life Ins. Co., 623 F.Supp. 877, 880 (D.Minn. 1985), aff'd, 819 F.2d 1471 (8th Cir. 1987) (where, in applying Minn.R.Civ.P. 35.03 in a diversity case, the Court noted: "[A] waiver of the privilege for one medical problem [under Rule 35.03] is not a waiver for an unrelated medical problem." [Citation omitted]). The federal rule, by not addressing the privilege issue at all, makes no such distinction.
3. The Minnesota Rule requires the production of authorizations, but only with respect to the privilege being waived (mental, physical, or blood). The federal rules do not require the production of authorizations (although the Scheduling Orders of the federal magistrates and judges sometimes do contain such a requirement, and authorizations are commonly provided as a matter of local convention).

The Federal Privilege Covering Treatment of Mental or Emotional Conditions

There is no statute or Federal Rule of Evidence that lists the privileges which are recognized in federal court; the proposed 1972 amendment to the Federal Rules of Evidence contained such a list, but Congress rejected it in favor of the general rule of Fed.R.Evid. 501. See, Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980). Rule 501 provides as follows:

Rule 501. General Rule

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

Fed.R.Evid. 501

It was not until June 13, 1996 that the United States Supreme Court recognized a "psychotherapist privilege" under Rule 501. Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996).

Jaffee was an excessive-force and wrongful-death action brought against a female police officer and the Illinois municipality which employed her. The police officer shot and killed a man who, she contended, was wielding a butcher knife and was about to stab another person. Members of the deceased's family claimed the deceased was unarmed at the time of the shooting.

During discovery, the plaintiffs sought copies of approximately 50 counseling sessions the police office had had after the shooting with a licensed social worker. The police officer and her counselor refused to produce the records.

The trial court advised the jury that there was no "legal justification" for the refusal to turn over the records and that the jury could therefore presume disclosure would have been harmful. The Seventh Circuit Court of Appeals reversed, holding that a psychotherapist-patient privilege should be recognized. The Supreme Court accepted review to resolve a conflict among the circuits on the issue, and affirmed the Court of Appeals, holding:

[W]e hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence. Jaffee, 518 U.S. at ___, 116 S.Ct. at 1931, 135 L.Ed.2d at 348 (footnote omitted).

The Court then analyzed whether this privilege extended to "licensed social workers" as well as to psychiatrists and psychologists, and held it did. Id. (For the split among the circuits as to the existence of this privilege prior to Jaffee, see Annot., "Psychotherapist-Patient Privilege under Federal Common Law," 72 ALR Fed 395 [1985 & Supp. 1996].)(8)

Diversity Cases

As Rule 501 indicates, in diversity cases, the law of privilege of the appropriate state governs, not the federal law of privileges. See Cerro Gordo Charity v. Fireman's Fund Amer. Life Ins. Co., 819 F.2d 1471, 1477 (8th Cir. 1987) (where in finding a waiver of the psychiatrist-patient privilege, the Court applied Minnesota law, stating:

"Since this is a diversity action, we must follow Minnesota law on the law of privileges. Fed.R.Civ.P. 501."); Filz v. Mayo Foundation, 136 F.R.D. 165, 167-68 (D.Minn. 1991) (same). Jaffee reaffirmed this principle. Jaffee, 518 U.S. at ___, 116 S.Ct. at 1931 n. 15, 135 L.Ed.2d at 348 n. 15.

Thus, if one is in federal court based on diversity jurisdiction and alleging sexual harassment only under the Minnesota Human Rights Act, Minnesota law will govern the issue of privilege, including Minn.R.Civ.P 35.03 which distinguishes between physical and mental conditions. See Cerro Gordo Charity v. Fireman's Fund Amer. Life Ins. Co., 623 F.Supp. 877, 880 (D.Minn. 1985), aff'd, 819 F.2d 1471 (8th Cir. 1987)

Federal-question Cases

The Supreme Court noted in Jaffee that it is unsettled as of today what law of privilege applies where both federal and state claims are asserted in the same proceeding. In discussing what the police-officer defendant's privilege would have been had Illinois state law applied, the Jaffee majority stated as follows:

[I]f only a state-law claim had been asserted in federal court, the second sentence in Rule 501 would have extended the privilege to that proceeding. We note that there is disagreement concerning the proper rule in cases such as this in which both federal and state claims are asserted in federal court and relevant evidence would be privileged under state law but not under federal law. See C.Wright & K.Graham, 23 Federal Practice and Procedure §5434 (1980). Because the parties do not raise this question and our resolution of the case does not depend on it, we express no opinion on the matter. Jaffee, supra, 518 U.S. at ___, 116 S.Ct. at 1931 n. 15, 135 L.Ed.2d at 348 n. 15.

For a discussion of the case law on this issue, see Annot., Situations in Which Federal Courts are Governed by State Law of Privilege under Rule 501 of Federal Rules of Evidence, 48 ALR Fed 259, §4 (1980 & Supp. 1996).

Of course, just because a federal court may not be required to apply the privilege law of the applicable state in a given case does not mean it cannot consider the state law or use it as a guide in determining whether a privilege exists under federal law. See Hansen v. Allen Memorial Hospital, 141 F.R.D. 115, 122 (S.D.Iowa 1992).

Limits on Inquires Into the Plaintiff's Medical History and Condition .

There are four primary methods available to a defendant to inquire into a plaintiff's past and current medical condition:

1. examination of the plaintiff's medical records;
2. deposition of the plaintiff and treating medical personnel;
3. ex-parte interviews of plaintiff's treating medical personnel;
4. independent or adverse medical examination under Rule 35.

Under Minn.R.Civ.P. 35

In Wenninger v. Muesing, 307 Minn. 405, 240 N.W.2d 333 (1976), it was held that "the procedure for disclosing privileged medical testimony set forth in Rule 35.04 is, and ought to be, the exclusive means by which an adverse party may discover testimony relating to a patient's physical, mental, or blood condition ..." Id., 307 Minn. at 410, 240 N.W.2d at 336.

Medical Records

Rule 35.04 requires a plaintiff to provide authorizations upon request to permit the defendant to examine all medical records concerning whatever medical condition the plaintiff has voluntarily placed in controversy, and to furnish all medical reports made by any treating or examining expert.

Depositions

The plaintiff can be deposed (or asked to respond to written discovery) concerning her treatment, past and present, for any condition with respect to which she has waived her privilege. Depositions of treating and examining medical experts can be taken only with a Court order issued for good cause under Minn.R.Civ.P. 35.04.

Ex-parte Interviews of Medical Personnel

In state-court cases, defendants cannot conduct ex-parte interviews of the plaintiff's treating medical personnel. Wenninger v. Muesing, 307 Minn. 405, 410, 240 N.W.2d 333, 336 (1976).(9)

Independent/Adverse Medical Examinations

The state and federal rules on the conditions under which adverse medical examinations may be taken are virtually identical. The moving party must establish "good cause", and specify the scope and conditions of the proposed examination in some detail.

In state court, a plaintiff does not automatically place her mental condition "in controversy" for purposes of Rule 35 simply by seeking damages for emotional distress, and thus, an adverse examination is not automatically required. Gillson v. State DNR, 492 N.W.2d 835, 842-43 & n. 4 (Minn. App. 1992), pet. for rev. denied (Minn. Jan. 28, 1993).

Under Fed.R.Civ.P. 35

Medical Records

No federal rule permits defendants to demand that a plaintiff execute a medical authorization to enable them to obtain the plaintiff's medical records. However, if any applicable privilege has been waived, the defendants can serve

1. a document request on the plaintiff to produce the records,
2. a document subpoena on the plaintiff's health-care provider and obtain the records without scheduling their deposition (see Fed.R.Civ.P. 34[c], 45[a][1], & 45[c][2][A]), or
3. a subpoena duces tecum in connection with a deposition of medical personnel (see, Fed.R.Civ.P. 30[b][1], 45[a][1], & 45[c][2][A]).

As a matter of convention and tradition, plaintiff's attorneys often voluntarily have their clients sign such authorizations since it simplifies the record-gathering process. However, the defendants are not necessarily entitled to see all the plaintiff's medical records, unrestricted as to time or circumstance, but only those related to causation and damages. Bottomly v. Leucadia National, 163 F.R.D. 617, 620-22 (D.Utah 1995) (allowing the defendants to examine only redacted copies of recent psychological treatment records and not matters of third-person diagnosis unrelated to the plaintiff's condition at issue in the litigation).

Depositions

As in state court, the plaintiff can be deposed (or asked to respond to written discovery) concerning her treatment, past and present, for any condition with respect to which she has waived her privilege.

Unlike state court, depositions of the plaintiff's experts may be taken by defendants upon request, without any need to show good cause or obtain a prior Court order, although the defendants must pay the expert's "reasonable fee" (unless "manifest injustice would result"). See Fed.R.Civ.P. 26(b)(4)(A) & 26(b)(4)(C) ("A party may depose any person who has been identified as an expert whose opinions may be presented at trial.").

Ex-parte Interviews of Medical Personnel

It is unclear whether, in federal court, the defendants are allowed to conduct ex-parte interviews of the plaintiff's treating physicians or therapists. See Gobuty v. Kavanagh, 795 F.Supp. 281, 289 n. 2 (D.Minn. 1992), where the Court notes that "[a]lthough there appears to be no circuit court authority [of any kind] on the point, the federal district courts that have dealt with this issue seem to be split, with a slight majority concluding that ex parte interviews are impermissible." Id . (citations omitted).

The Gobuty Court went on to state that "[e]ven federal district courts within the Eighth Circuit are evenly split as to whether the federal rules permit ex parte physician interviews." Id. The cases cited by the Gobuty Court as evidence of this split within the Eighth Circuit included several District of Minnesota decisions, some allowing such interviews, others prohibiting them. Id.

Independent/Adverse Medical Examinations

The state and federal rules on the conditions under which adverse medical examinations may be taken are virtually identical. The moving party must establish "good cause", and specify the scope and conditions of the proposed examination in some detail. If the plaintiff intends to use a psychological expert to prove damages, good cause for an adverse examination will most likely be found. See Tomlin v. Holecek, 150 F.R.D. 628, 630 (D.Minn. 1993).

If the plaintiff claims only past, and not ongoing mental distress, however, good cause does not exist. Bridges v. Eastman Kodak Co., 850 F.Supp. 216, 222 (S.D.N.Y. 1994); Robinson v. Jacksonville Shipyards, Inc., 116 F.R.D. 525, 529-531 (M.D.Fla. 1988).