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Winslow v. Montana Rail Link12/18/2001
OPINION AND ORDER
Gary Winslow has petitioned this Court for a writ of supervisory control. He seeks to have this Court reverse a District Court ruling requiring that he submit to a psychiatric evaluation pursuant to Rule 35, M.R.Civ.P. He contends that the District Court erred in finding that the "good cause" requirement of Rule 35 was satisfied by the fact that Winslow has asserted an independent claim for intentional or negligent infliction of emotional distress. He further contends that the District Court erred in ordering a Rule 35 examination without setting forth the "manner, conditions and scope of the examination" in advance of the examination itself.
This petition raises issues as to the proper scope of discovery of medical information through psychiatric examination. Discovery of potentially-privileged material presents unique issues which we have, under certain circumstances, found sufficient to invoke original jurisdiction.
In Jaap v. District Court (1981), 191 Mont. 319, 623 P.2d 1389, we granted a writ because the District Court had exceeded its authority by allowing defendant's attorney to privately interview plaintiff's physicians-a method of discovery not authorized by the Montana Rules of Civil Procedure.
In Burlington Northern v. District Court (1989), 239 Mont. 207, 779 P.2d 885, we again addressed a District Court order compelling discovery of potentially-privileged material. The District Court had ordered the defendant to produce certain work product and had enjoined the defendant from engaging in further discovery until it complied with the discovery order. The defendant argued that if it were to disclose privileged material, "the harm is complete and cannot be rectified on appeal." Burlington Northern, 239 Mont. at 211, 779 P.2d at 888. We agreed that the potential harm could not be remedied by appeal. We exercised supervisory control and ultimately vacated that part of the District Court order enjoining the defendant from engaging in further discovery.
In State ex rel. Mapes v. District Court (1991), 250 Mont. 524, 822 P.2d 91, we accepted jurisdiction over a petition for supervisory control in a Rule 35 discovery dispute. Mapes contended that his claim was for physical injuries from exposure to toxic fumes. As a result of the injury to his central nervous system, he claimed that he had measurable cognitive deficit. He maintained, however, that he was not seeking damages for any psychological injury and thus argued that there was no good cause for discovery of his psychological records. While recognizing that interlocutory review of discovery orders is not favored, State ex rel. Guar. Ins. v. District Court (1981), 194 Mont. 64, 634 P.2d 648, we noted: "Defendant's right to discover plaintiff's mental or physical condition is based on fairness where that mental or physical condition is placed in issue by a claim for damages. However, defendant's need for that discovery must be balanced by plaintiff's constitutional right to privacy found in Mont. Const. Art. II, Sec. 10." Mapes, 250 Mont. at 529, 822 P.2d at 94. We held that confidentiality of communications between a patient and his psychologist can be waived like any other privilege. "When a party claims damages for physical or mental injury, he or she places the extent of that physical or mental injury at issue and waives his or her statutory right to confidentiality to the extent that it is necessary for a defendant to discover whether plaintiff's current medical or physical condition is the result of some other cause." Mapes, 250 Mont. at 530, 822 P.2d at 94.
Similar to Mapes, the present case presents issues as to good cause for and scope of discovery
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