Estate of Emilie Grace Xiao Ying Olsen v. Fairfield City School District Board of Education

             UNITED STATES DISTRICT COURT                            
               SOUTHERN DISTRICT OF OHIO                             
                   WESTERN DIVISION                                  


Estate of Emilie Grace Xiao                                               
Ying Olsen, deceased,                                                     

     Plaintiff,                    Case No.  1:15cv787               

v.                                 Judge Michael R. Barrett          

Fairfield City School District                                            
Board of Education, et al.,                                               

     Defendant.                                                      

                        ORDER                                        
This matter is before the Court upon two motions addressing the discoverability of 
certain medical records: (1) the Motion to Compel Plaintiffs to Identify Decedent's Medical 
Records filed by Defendants Candy Bader, Lincoln Butts, Allison Cline, John/Jane Doe 
21, John/Jane Does 11-20, Fairfield City School District (Doc. 135); and (2) the Motion 
for Protective Order filed by Plaintiffs, Estate of Emilie Grace Xiao Ying Olsen, deceased, 
by and through Marc and Cynthia Olsen, as Co-administrators of the Estate, et al. (Doc. 
142).                                                                     
In the Second Amended Complaint, Plaintiffs claim that the bullying, harassment, 
and sexual and racial discrimination suffered by Emilie Olsen at Fairfield Middle School 
and Fairfield Intermediate School led to her suicide on December 11, 2014.  (Doc. 92).  
The current discovery dispute relates to the medical records of Emilie.  Counsel for 
Plaintiffs has described the procedural background leading up to the filing of these 
motions:                                                                  
On July 28, 2016, the Fairfield school defendants served the first set of 
interrogatories request for production of documents on plaintiffs, Mark and 
Cindy Olson.                                                         

…                                                                    

The Fairfield School Defendants’ First Set of Interrogatories and Request 
for  Production  of  Documents  requested  all  of  Emilie’s  medical  care 
providers and medical records including any mental health counseling or 
psychiatric  or  psychological  records  for  her  entire  lifetime  without  any 
limitation.                                                          

…                                                                    

The medical records produced by plaintiffs, Mark and Cindy Olson, span 
half of Emilie’s fifth grade year (2012-2013), all of her sixth-grade year 
(2013-2014),  and  the  half  of  her  seventh  grade  year  (2014-2015) 
immediately preceding her death on December 11, 2014.                

(Doc. 142-1, Peter L. Ney Esq. Aff., filed under seal., paragraphs 2,4, & 6).  

Plaintiffs seek a protective order finding that Plaintiffs are only required to produce 
Emilie’s medical care providers and medical records for the two years prior to her death 
(December 11, 2012 – December 11, 2014).  Plaintiffs maintain that any medical records 
outside this period of time are not causally related to the allegations contained in the 
Second Amended Complaint because their claims are only based upon events during 
Emilie’s sixth and seventh grade years.  Plaintiffs also maintain that the medical records 
are protected by the physician-patient privilege.  Defendants seek an order compelling 
Plaintiffs to produce these records, arguing that any conditions or health problems which 
may have affected Emilie’s emotional state are relevant, and therefore, all of the medical 
records should be produced.                                               
In order to determine whether the remaining medical records should be produced, 
the Court ordered that the records to be submitted to the Court for an in camera review.  
Accord Mann v. Univ. of Cincinnati, 824 F. Supp. 1190, 1201 (S.D. Ohio), aff'd, 152 F.R.D. 
119 (S.D. Ohio 1993) (explaining that “materials should be submitted to the Court for in 
camera review, where the resisting party's claims of privilege and irrelevance can be 
balanced against the opposing party's claims of relevance and need.”).    
Federal  Rule  of  Civil  Procedure  26(b) permits  parties  to  “obtain  discovery 

regarding any nonprivileged matter that is relevant to any party's claim or defense and 
proportional  to  the needs  of  the  case.”    In federal  court, evidentiary  privileges  are 
governed by Rule 501 of the Federal Rules of Evidence.  Where a plaintiff alleges federal 
and state claims, the Sixth Circuit has held that federal common law controls under Rule 
501.  Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992).          
“It is well-settled that, under the federal common law, there is no physician-patient 
privilege.”  Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 547, 551 (S.D. Ohio 
2014) (citing Hancock, 958 F.2d at 1374).  Because Plaintiffs have brought both federal 
and state law claims in this case, the medical records are not covered by a physician-
patient  privilege.    However,  the  United  States  Supreme  Court  has  recognized  a 

psychotherapist-patient privilege.  Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 
547, 551 (S.D. Ohio 2014) (citing in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 
L.Ed.2d 337 (1996)).  Nevertheless, “placing one’s mental health at issue constitutes 
waiver of the privilege.”  Simon v. Cook, 261 F. App'x 873, 886 (6th Cir. 2008). 
Even if the Court were to conclude that the physician-patient or psychotherapist-
patient privilege does not apply, this does not end the Court’s inquiry. The Court must 
determine whether the medical records are relevant to Plaintiffs’ claims or Defendants’ 
defense that there are alternative causes for Emilie’s suicide.  Accord White v. Honda of 
Am. Mfg., Inc., No. 2:07-CV-216, 2008 WL 5431160, at *2 (S.D. Ohio Dec. 31, 2008). 
Upon review of these records, the Court determines that the information it has 
reviewed is not causally or temporarily related to the issues raised in the pleadings. The 
documents do not include any references to difficulty in school, classmates, or internet 
communications. Therefore, the Court determines said records shall remain sealed and 

are not subject to disclosure at this time. However, the Court cautions Plaintiffs that this 
determination may be revisited at the request of the parties or sua sponte, depending on 
the content of deposition testimony, expert reports, or other issues raised in the discovery 
process.                                                                  
Accordingly,  Defendants’  Motion  to  Compel  Plaintiffs  to  Identify  Decedent's 
Medical Records (Doc. 135) is DENIED; and Plaintiffs’ Motion for Protective Order is 
GRANTED (Doc. 142).                                                       
IT IS SO ORDERED.                                                    
                                    /s/ Michael R. Barrett           
                              Michael R. Barrett, Judge              
                              United States District Judge