A 29-year-old clearly distraught woman walks into your office. She is in the middle of an acrimonious divorce, hoping to protect her two-year-old twin daughters from a controlling husband, after she was served with a set of discovery asking that she turn over her diaries to her abusive spouse. Her current attorney repeated the maxim that discovery rules are given a broad and liberal construction1, and told her to turn them over.
She is terrified. She has kept a diary since she was fourteen and has shared her innermost thoughts on those pages. Never would she have thought anyone, let alone her vindictive husband, would read them. When asked specifically about entries that might be especially private, she mentions a few examples. She went through a short shoplifting phase when she was fifteen. During her engagement, and well before her children were born, she told her now husband that she was going to Costa Rica with some friends as a “girls trip.” She did go to Costa Rica but she mostly drank a lot and had several run-ins with the law as a result. During that trip, she also had a romantic encounter with another man. She suffers from intermittent bulimia that she is working with a therapist to overcome. Her therapist, who is her therapist alone and has never jointly counseled the couple, has encouraged her to write down her bulimia triggers and to then share the diary entries in their sessions. She has been gambling a lot and doesn’t want him to know, although she thinks he can figure that out from her credit card receipts anyway. She hires you and wants to keep her diaries private. How can you help her protect her diaries?
Although the above example is entirely fictitious, both authors of this article have received diary requests in propounded discovery. As an initial matter, much case law involving diary use in litigation concerns situations where the diary owner wishes to introduce his or her journal into evidence at trial. Typically, such journals are inadmissible if offered by the keeper of the diary as they can be a form of self-serving hearsay.2 Even if used to refresh the memory of a witness, the diary does not then become automatically admissible.3 However, diaries and journals are admissible as an admission under Evidence Rule 801(d)(2) if used to contradict trial testimony made by the author.4
Although there is significant case law on when a diary may be introduced or excluded by the author, there is less legal guidance where a party wishes to avoid altogether the disclosure demanded in propounded discovery. This article covers some pathways the prudent practitioner might take to exclude a diary from discovery.
The first step in exclusion of requested documentation is to list an objection to its disclosure in the discovery responses. Any objections should be served within the 30-day response period for Interrogatory answers.5 Possible objections could include the following.
1) Relevance and/or Overbroad
Your client could claim that her diaries, in whole or in part, are not relevant to the issues present in her divorce case. Discovery is permissible, however, as to any matter which is or might become relevant and if the information sought could reasonably be expected to lead to relevant information.6 In the matter at hand, the parties have young children and her bulimia is a health concern that could conceivably be relevant to parenting issues. Her gambling might be relevant to the division of debts and assets. However, her shoplifting as a 15-year-old likely has no relevance and would not even lead to something relevant. Washington is a “no fault” state7 and so her pre-marriage fling also is irrelevant to the issues at hand. As such, at least a partial relevance objection, based upon an overbroad discovery request, may be warranted.
2) Reasonable Expectations of Privacy
Washington State recognizes both a common law right to privacy and a tort liability for invasion of privacy.8 When one gives publicity to a matter concerning the private life of another, he or she may be subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.9 It is obvious that a request to disclose a diary is a request to disclose a document for which the author expected privacy. However, a court would balance the facts of the case, their inherent duty to promote the best interests of the children, and relevance of the possible diary contents in determining whether to require diary disclosure. As such, although you may want to raise this objection, this objection alone is unlikely sufficient to avoid disclosure.
3) Undue Harassment/Unduly Burdensome
The diary may be excluded as being unreasonable or unduly burdensome, given the needs of the case, the discovery already undertaken, and the importance of the issues at stake in the litigation.10 The statute does not define “burdensome.” However, it is worth arguing that disclosure of the highly personal and private diary would be emotionally and psychologically burdensome to the client. Such an objection could prompt the requesting party to state the diary’s importance to the issues at stake. The court then may, for good cause shown, make “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”11 Disclosure of a private diary is an annoyance, embarrassing, oppressive, and unduly burdensome. Therefore, if ultimately litigated, the court may issue a protective order (as discussed below) to protect your client.
The diary may also be objected to as being “interposed for any improper purpose,” such as to harass.”12 In the case at hand, one issue is the wife’s raised concerns regarding the husband’s controlling and abusive behavior. Without an indication of the diary’s purpose in the case, the court could find that his discovery request for the diary is in fact and at heart intended to harass your client. The court’s inherent equitable powers allow it to prevent abuses and injustices in the discovery process.13 Therefore, the court may issue a protective order (as discussed below) to exclude it from discovery if it finds the diary is sought for the purpose of harassment.
4) Therapist-Patient Privilege
The diary may also be excluded as disclosure could violate the therapist-patient privilege. A party is not entitled to discovery of records and information from privileged sources.14 The patient/psychologist privilege is codified in RCW 18.83.110.15 The holder of the privilege is the patient and the patient alone has the ability to assert or waive privilege.16 Confidential communications between a therapist and patient are protected, including notes taken during counseling sessions and communications made to others in the course of psychotherapy.17 A privilege is not vitiated where a third person is necessary for a communication to occur.18 In the matter at hand, the keeping of the diary could be deemed an essential part of the therapeutic process and thus may be protected under the umbrella of this privilege.
Therapist-patient privilege does not apply where it is manifest that the patient did not intend his or her communications to be confidential.19 Thus, it does apply when the intent was to keep communications private. However, a person waives privilege on an issue if that person testifies, introduces evidence, or fails to object to another’s testimony as to the privileged conversation or document. 20
As the diaries are used in your client’s therapy sessions, and are even being kept at the suggestion of the therapist, disclosure may thus violate therapist-patient privilege. Further, if the diaries can be legitimately described as “part of the therapist records,” which could be the case if the therapist kept a copy of the entries or summarized the entries as written in his or her notes, then a “compelling need” would also be required to disclose such records.21 For parenting-related issues, such records are only disclosable if there are credible allegations of neglect or other relevant circumstances affecting parenting made in the case.22 Recent amendments to CR26 require the party objecting based on a privilege assertion to “describe the grounds for the objection,” and, if statutorily consistent, identify the matters which are subject to the privilege and provide “sufficient information” to allow other parties to evaluate the privilege claim.23 Such objections may thus be a productive way to avoid disclosure of the diaries to counsel.
5) Request for Inadmissible Materials
An objection could be made that the diary is not reasonably calculated to lead to the discovery of admissible evidence. 24 Diary entries, though perhaps not the entire diary, could be admissible at trial under the present sense impression and state of mind exceptions to hearsay. Diary entries can also be admissible to refresh memory or to impeach.25 Therefore this objection should be used in conjunction with another, stronger objection.
An objection to a specific discovery request does not relieve the party from their duty to respond unless a protective order is also sought pursuant to CR 26(c) and CR 37(d).26 A trial court must find good cause to limit discovery27, but has broad discretion to manage the discovery process, including where appropriate to limit the scope of discovery.28 A protective order can stop, oversee, or limit discovery if the sought discovery is unusually cumulative, duplicative, or unduly burdensome or excessive given the case facts.29 The court also has discretion to conduct an in camera review.30 Document access can also be restricted to case participants only, which can include experts and investigators in addition to counsel and their staff.31 In determining whether a protective order should be issued, the court must balance the interest of the parties and in limiting the scope of discovery, good cause must be found.32 In order to establish good cause, a party must show that specific prejudice or harm will ensue if the protective order is not granted.33 Ultimately, if the husband persists in demanding production of the diaries, a protective order will be needed to avoid their release. In the matter at hand, therefore, the prudent practitioner should timely claim whatever objections they deem appropriate to prevent disclosure of the diary, as well as file a motion for protective order to protect the disclosure of their client’s personal and private thoughts to the extent possible from her abusive spouse.
Kim Schnuelle is a senior attorney in the Seattle office of McKinley Irvin, PLLC. She has over thirty years of family law experience and her practice focuses on divorce, international family law issues, child support litigation, and complex parenting plan matters.
Ericka Kendall is an attorney in the Tacoma office of McKinley Irvin, PLLC. Her practice focuses on divorce, child support litigation, and parenting plan matters.
1 McGugart v. Brumback, 77 Wn.2d 441, 444 (1969), Cook v. King County, 9, Wn.App. 50, 51 (1973), see also CR26(b)(1) (“It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”).
2 Baxter v. Safeway Stores, Inc. 13 Wn. App. 229, 237, 534 P.2d 585, review denied, 85 Wn.2d 1015 (1975).
3 Sevener v. Northwest Tractor & Equip. Corp., 41 Wn.2d 1, 14-15 (1952).
4 Goehle v. Fred Hutchinson Cancer Research Ctr., 100 Wn. App. 609, 622, 1 P.3d 579, review denied, 142 Wn.2d 1010 (2000) (Employee’s diary entries about her work experiences were admissible as evidence regarding the employee’s relationships at work.).
5 CR33(a).
6 Bushman v. New Holland Division of Sperry Rand Corp., 83 Wn.2d 429, 434 (1974) (N: CR26 has been amended subsequent to this decision in a way that does not impact this provision).
7 All that is required is that a marriage be “irretrievably broken.” RCW 26.09.030(c)(i); Little v. Little, 96 Wash. 2d 183, 191, 634 P.2d 498 (1981).
8 See Reid v. Pierce County, 136 Wash.2d 195, 206, 961 P.2d 333 (1998).
9 Reid, 136 Wash.2d at 205, 961 P.2d 333 (quoting restatement (Second) of Torts § 652D (1977)).
10 CR 26(g)(3).
11 CR 26(c).
12 CR26(g)(2); Rhinehart v. Seattle Times Co., 98 Wash. 2d 226, 232, 654 P.2d 673 (1982), aff’d, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984).
13 Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984); International Products Corp. v. Koons, 325 F.2d 403, 407–408 (CA2 1963).
14 Dana v. Piper, 173 Wn.App. 761, 770 (2013) (rev den 178 Wn.2d 1006 (2013).
15 Note that this privilege would not apply however if the parties had received joint counseling from the therapist. Redding v. Virginia Mason Medical Center, 75 Wn.App. 424, 428 (1994).
16 J.N. By and Through Hager v. Bellingham School District No. 501, 74 Wn.App. 49, 63 (1994).
17 Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 1931, 135 L. Ed. 2d 337 (1996). See also Oleszko v. State Comp. Ins. Fund, 243 F.3d 1154, 1159 (9th Cir. 2001).
18 State v. Fields, 553 P.3d 71, 79 (July
19 State v. King (1996) 130 Wash.2d 517, 532, 925 P.2d 606, denial of habeas corpus affirmed 187 F.3d 647, certiorari denied 120 S.Ct. 1540, 529 U.S. 1041, 146 L.Ed.2d 353.
20 Magney v. Truc Pham, 195 Wn.2d 795, 813 (2020).
21 Marriage of True, 104 Wn.App. 291, 296 (2000) (Statutory counselor/patient privilege prohibited discovery of former husband’s 10-year-old mental health records in post-divorce child custody proceeding, in part because former wife provided no relevance to current proceedings).
22 Id.
23 2024 Washington Court Order 0021 (C.O. 0021). In the Matter of the Proposed Amendments to CR26 – General provisions Concerning Discovery, Order 25700-A-1592, September 5, 2024.
24 CR 26(b)(1).
25 Havens v. C & D Plastics, Inc., 124 Wash. 2d 158, 168, 876 P.2d 435 (1994).
26 See Washington State Physicians Insurance Exchange & Assn. v Fisons Corp., 122 Wn.2d 299, 353-354 (1993).
27 McCallum v. Allstate Property and Cas. Ins. Co., 149 Wn.App. 412, 420 (2009) (rev. den. 204 P.3d 944 (2009).
28 Nakata v. Blue Bird, Inc., 146 Wn.App. 267, 277 (2008) (rev. den. 165 Wn.2d 1033) (2008).
29 CR26(c), Shields v. Morgan Financial, Inc., 130 Wn.App. 750, 759 (2005).
30 See generally Escalante v. Sentry, Ins., 49 Wn.App. 375, 394 (1987), State of Washington v. Diemel, 81 Wn.App. 464, 465 (1996).
31 State v. Boyd, 160 Wn.2d 424, 438-39 (2007).
32 McCallum v. Allstate Property and Cas. Ins. Co., 149 Wn.App. at 423 (2009) (citing Foltz v. State Farm Mut.Auto Ins. Co., 331 F.3d 1122, 1130 (2003) and Rufer v. Abbott Laboratories, 154 Wn.2d 530, 542 (2005).
33 McCallum v. Allstate Property and Cas. Ins. Co., 149 Wn.App. at 423.
