Deposition of Children's Therapist now being disputed: This Thurs. @ 9:00 am I have a deposition scheduled with Children's Therapist who confirmed her participation. You need to remember something...we already had a 2 day trial in J&D court where the Children's Therapist testified and answered whatever questions were asked and now, as I prepare for the appeal, some privilege is being asserted. Paul could you please review and advise on the following. Appreciate your help. I received the below email 15 min. ago saying the following:Dear Mr. X (that's me): I am writing to request that you withdraw your Deposition Notice of Ms. Y. I believe that pursuant to Virginia Code Section 8.01-400.2, such a deposition is not permitted. Mrs. Z does assert the privilege and does not waive it. I would appreciate it if you would acknowledge this e-mail, confirm that you will not proceed with the deposition and confirm that you have communicated this fact to Ms. Y. If I do not hear from you, I will be forced to file a Motion to Quash and a Motion for a Protective Order. If I am forced to file such a Motion, I will seek attorney’s fees. Please let me know if you have any questions. For your reference, Section 8.01-400.2 of the VA code reads:Except at the request of or with the consent of the client, no licensed professional counselor, as defined in § 54.1-3500; licensed clinical social worker, as defined in § 54.1-3700; licensed psychologist, as defined in § 54.1-3600; or licensed marriage and family therapist, as defined in § 54.1-3500, shall be required in giving testimony as a witness in any civil action to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge his professional or occupational services according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking professional counseling or treatment and advice relative to and growing out of the information so imparted; provided, however, that when the physical or mental condition of the client is at issue in such action, or when a court, in the exercise of sound discretion, deems such disclosure necessary to the proper administration of justice, no fact communicated to, or otherwise learned by, such practitioner in connection with such counseling, treatment or advice shall be privileged, and disclosure may be required. The privileges conferred by this section shall not extend to testimony in matters relating to Child Abuse and neglect nor serve to relieve any person from the reporting requirements set forth in § 63.2-1509.
State/Country relating to question: Virginia
Have you received the doctor's report as part of your discovery?
Paul, there was never a doctor's report per se. Occasionally, I would receive an update on the children's well being from the therapist, but very rarely. She never wrote a final discharge report. However, all relevant information at the time, about the children, was answered in J&D Court in January of this year.
You are going to have to go to court over this one, because the statute does prevent the deposition, I am afraid. You will need to ask the court for a final report from the expert and if not you will need to justify why the court should allow the deposition in lieu of the report and ask for one or the other. I am afraid that the privilege does apply as the other counsel suggests, so it would be best to cancel the deposition and file a motion to compel production of a final doctor's report or in the alternative allow the deposition to discuss the report only. If you do not do this, you are going to face the attorney's fees for pursuing this without court approval.
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Is there not any credence to the fact that this expert witness is already a "player" in the game. You should not be able to enter the arena by being a witness for the children in J&D Court and upon pursuit of a deposition during the Circuit Court trial be able to withdraw. It doesn't make sense. No?
If she has already testified in the matter, then this needs to be raised to the court and argued that they cannot just raise privilege when it is convenient to the other party, but for you to avoid sanctions here you need to stop the deposition and file a motion in court for them to order the deposition arguing that she has already testified once and thus privilege should be waived.
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