An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in the Federal Courts

75 Pages Posted: 30 Apr 2008 Last revised: 15 Feb 2009

See all articles by Deirdre M. Smith

Deirdre M. Smith

University of Maine School of Law

Date Written: 2008


Twelve years ago in Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court first recognized a federal common law psychotherapist-patient privilege and held that federal courts must protect confidential communications arising in psychotherapy despite the "likely evidentiary benefit" of such communications. This article examines the sharply conflicting authority in the federal courts that has developed since that landmark decision on the question of whether a plaintiff to a civil lawsuit waives the psychotherapist-patient privilege merely by seeking emotional distress damages. The federal courts' inconsistent and unprincipled approaches to this question renders the privilege itself nearly illusory and thus undermines an important value served by the privilege; namely, enabling those who have sought mental health treatment to bring civil rights claims in federal court without concern that their treatment will become a focus of the litigation over their objections. Since federal courts are a primary forum for the vindication of civil rights, the disarray in the case law has significant impact and a chilling effect on those seeking relief under federal civil rights laws. I argue that federal courts should resolve disputes regarding waiver of the psychotherapist-patient privilege in a manner that is consistent with the general concept of waiver in the law and that provides all litigants meaningful protection from unnecessary intrusion into their mental health history. The article is the first to offer both an extensive analysis of the questions implicated by waiver of the psychotherapist-patient privilege, as well as a proposal for a reasoned and coherent approach that adheres to legal traditions regarding both the enforcement and waiver of rights generally, while preserving the federal courts as a place where all litigants, regardless of their mental health history, can fairly seek compensation for injuries.

Keywords: evidence, mental health, psychotherapist-patient privilege, waiver

JEL Classification: K41

Suggested Citation

Smith, Deirdre M., An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in the Federal Courts (2008). DePaul Law Review, Vol. 58, p. 79, 2008, Available at SSRN:

Deirdre M. Smith (Contact Author)

University of Maine School of Law ( email )

300 Fore Street
Portland, ME 04101
United States
207-780-4376 (Phone)


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