Protecting clients’ privacy rights during discovery paramount

Plaintiff lawyers should carefully consider relevancy, proportionality of requests

Protecting clients’ privacy rights during discovery paramount

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When asked to produce records on behalf of clients, plaintiff lawyers should “carefully consider if they’re relevant to the issues in the litigation and the proportionality of the records before agreeing to produce them,” says Nicholas Sampson, associate in the medical malpractice group at Neinstein Medical Malpractice Lawyers.

The importance of privacy in litigation and in requests for disclosure of documents in the discovery process cannot be understated, and Sampson says there’s been a movement over the last few years to protect the privacy rights of people in general — for example, the ongoing feud between Apple and Facebook over the data each collects and the ever-increasing amount of information that’s public via social media — and people are realizing it’s important and should be protected. When it comes to the firm’s clients, “protecting their privacy is part of the service we provide,” Sampson says.

“We’re retained by people who have been seriously injured and those injuries have changed their lives. We don't want to make things worse for them than they already are by having private information that isn’t relevant disclosed to other parties and potentially becoming public if they're admitted into evidence in the court.”

In a recent motion in an ongoing birth injury case, Sampson successfully defended his client’s privacy rights by opposing on the basis of relevancy the defendant’s request for Children’s Aid Society records. It ultimately went to a motion and the judge agreed with Sampson’s position that the records in question weren't relevant, in the circumstances. Sampson also depended on Rule 29.2.03 of the Rules of Civil Procedure that “imposes a proportionality requirement in discovery — if the evidence you’re looking to get from those records are available from other sources that aren’t as invasive,” then a production request can be opposed. This rule can be used as a tool to help restrict the disclosure of records that contain highly personal and private information when production would be prejudicial and/or the information sought can be obtained from less intrusive sources.

“We take privacy of our clients very seriously and our position was the CAS records are highly invasive in terms of the personal information they contain, and disclosure of that information wasn’t relevant to the litigation,” Sampson says. “To the extent there may be some relevant information in those records, it could be obtained elsewhere from records that had already been produced.”

While in civil litigation, plaintiffs are required to disclose private information they otherwise would’t have to — such as their medical records — Sampson says that disclosure can at least be restricted to what’s relevant to their case, especially when it comes to minors. 

While not typically used as an outright fishing expedition, when you refuse to disclose something the reaction from the other side is often to question why not, with an assumption that there must be something in the requested information that is bad for your client, but that’s not necessarily the case.

“It’s just not relevant — they don’t need it to adjudicate the dispute,” Sampson says. “Yes, some disclosure is necessary for the litigation but just because our clients are injured doesn’t mean they lose all of their privacy rights. We should take a look at what is being requested and make sure it actually is relevant before we agree to produce it.”

Judges also want to protect privacy rights, and that came across in the motion Sampson recently argued. It’s not the only time the issue had been adjudicated from a discovery perspective “and from the caselaw we found and the judge relied upon in our case, it’s apparent judges are hesitant to order broad disclosure of documents that could contain highly sensitive private information unless relevancy to the issues in the litigation is established,” Sampson notes, adding the proportionality of disclosing highly sensitive information should be considered before agreeing to production requests.

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