How to do your own homework.
We'd all like it if journalists included a link to relevant pleadings. What if they don't?
“Woman’s talkspace therapy app sessions exposed in court” was the headline.
The article described the shock of both a patient and a therapist, when, after two years of treatment via the therapy app Talkspace, “a transcript of every word [patient] had typed to her psychologist using the app Talkspace was produced in court by her former employer.”
Talkspace, the article explains, “records and stores text, video, and audio messages with clients” and “has amassed ‘one of the largest mental health data banks in the world,’ containing 140 million message exchanges” with the end goal of training an AI therapist.
Courtroom intrigue, with a side of privacy concerns, professional ethics, and the looming threat that everything from our text messages to bowel movements are being data-mined for the purpose of training AI.
Transcripts of years of therapy were maintained by a tech company, then produced in court by the plaintiff’s employer.
Who wouldn’t have questions.
From non-lawyers:
“What about doctor patient privilege? That’s a thing1, right? How did her employer even get that stuff?”
From litigators, generally:
“Wait, the therapy app2 responded to a subpoena?”
From the plaintiff’s bar:
“Who fucked up here? Because somebody fucked up here.3”
To answer any of the questions above, we need to find the court case.
As much as lawyers-on-the-internet love to implore journalists to link to relevant court documents, when discussing cases and decisions, the article cited above did not link to anything.
The article did not include a link to any filing. Sometimes, no matter how nicely I ask, I still have to do my own homework. Looking through the article, let’s find out we can learn about the plaintiff’s lawsuit:
The case “began after [plaintiff’s] employer, AdventHealth, terminated her nurse practitioner role in 2021, when she was nearly nine months pregnant.”
“In the months that followed, [plaintiff] filed a pregnancy discrimination claim against her former employer.”
“A federal judge ultimately found the claim insufficiently supported...”
The article names the plaintiff. The above paragraphs name the plaintiff’s employer, who was the defendant in the lawsuit. Therefore, the name of the case is almost certainly [Plaintiff’s Last Name] v. [Plaintiff’s Employer].
The suit was filed in federal court, likely in, or after 20214. It was resolved by motion practice rather than trial, meaning there is likely a written decision5 explaining what happened, and why.
At this point, there are a number of ways to proceed. A legal research provider, such as Westlaw or Lexis will, if something close enough to the caption of an extant federal case with at least one written ruling will return something.
A search on Westlaw found the decision on the defendant’s motion for summary judgment6, issued August 30, 2023, by Judge Broomes in the District of Kansas.7
Without access to Lexis or Westlaw, how to proceed?
Google Scholar returned the same result8.
Is there any other way?
Sure. One of the best, when dealing with federal cases. The recap archive.
And the strength of recap is that it is not limited to decisions. Which is good, because the summary judgment decision had nothing to do with the “Talkspace” issue.
Recap has dockets. Recap has filings. Recap has enough, often, if sufficiently careful and nosy people have searched for the same thing before, that exactly what you want will already be there. And recap has the link to purchase any missing documents, directly from Pacer, should you be so interested that you simply must fill in the blanks.
Answering the questions, raised by the diligent and imaginary people above:
“What about therapist-patient privilege?”
The plaintiff designated her treating therapist as a witness in the case. That was sufficient that privilege was not a concern.
“How the hell did they get Talkspace to respond to a subpoena?”
That I can’t tell you. I don’t see any extraordinary measures apparent from the docket. I can’t guarantee that if I had a similar need, I wouldn’t be blown off, with vigor and precision.
“Did someone fuck up here?”
Personally, I would not try to support a plaintiff’s employment-discrimination case with testimony from her long-term therapist, provided through a third-party platform. But hindsight is 20/20, or so they say.
Not everywhere, and not for all purposes. Psychotherapist-patient privilege exists, but is often, and easily, waived.
On the list of things which are a pain in the ass, probably between “anal fissure” and “remembering to refill ADHD medications, after running out of ADHD medications” is “getting the company behind an ‘app' to respond to a document subpoena, ever.”
Psychotherapist-patient privilege would typically shield communications between a litigant and their therapist. But as noted in Footnote 1, above, this privilege can be waived.
One of the ways that this privilege is most commonly waived is when the plaintiff puts the therapist-patient relationship “at issue” by making what happened in therapy part of her case.
This could be by, for example, suing her therapist. Another way that mental health treatment can be put “at issue” is by claiming, specifically, harm to mental health, as an aspect of damage, although this would have to go beyound garden-variety distress or pain and suffering.
Another way that the psychotherapist-patient privilege can be waived is by making the psychotherapist a witness, who must then testify about the basis of her opinions and conclusions.
Employment-discrimination cases must be initiated by filing at an administrative agency fairly swiftly after the discriminatory act occurred. Most represented litigants will “remove” or “withdraw” their case from the administrative agency fairly quickly after filing.
If a journalist was careful in researching their story, and describing litigation accurately, there will be hints about how a case ended: A reference to a “verdict” will mean that there was a trial. A “judgment,” however, could be the result of motion practice (written papers requesting resolution, usually for legal reasons) or a trial. A “finding” that a case is “insufficiently supported” is likely going to be a motion for summary judgment.
Kamrass v. Adventist Health System, Case No. 22-cv-2100-JWB, (D. Kan., 2023); 2023 WL 5625434.
Don’t let me tell you my District of Kansas story.
I’ve made the deliberate choice, here, not to name the plaintiff in the text of this article, despite her participation in media coverage concerning the case, and although her name appears on many of the documents found at the links.
Why? Because it feels right. This article is not about her — it’s about how to find court documents. She did not volunteer as living example.
This is - as always - compulsively readable and hugely informative.