United States: Discovery Evolutions Hold Promise For Greater Privacy Benefits For Litigants

For most civil litigants, discovery is an unprecedented invasion of privacy. Private letters, notes to one's self, off-the-cuff emails, financial details and transactions, photographs, and all other forms of memorializing one's and life become fair game for review and follow-up questioning by a presumptively bitter rival.

Even criminal investigations respect the privacy of a suspect to some extent, requiring authorities to have probable cause when that suspect stores such documents in a place where he has a reasonable expectation of privacy. Yet in civil discovery under American law, the concept of privacy barely warrants mention, except in the limited context of trade secrets or privileges.

This silence is at odds with client complaints about discovery. For all of the understandable discussion over the unreasonable financial burdens discovery imposes upon litigants, lawyers routinely field complaints from clients not just over the cost of discovery, but about its invasiveness. Over the past decades, lawyers have been forced to counsel their clients that it comes with the territory; if a civil litigant was entitled to ask a sitting President of the United States about unrelated extramarital affairs in the late 1990s, what reassurances can a lawyer give her client regarding personal privacy in the face of civil discovery?

The lack of discussion is somewhat understandable, because promoting the protection of privacy is often seen as inconsistent with the full and frank disclosures demanded in civil discovery. To an opponent in litigation, one's desire to protect privacy is proof positive that he has something to hide that is worth uncovering. That is an unfortunately narrow interpretation. Concerns for privacy in civil discovery do not necessarily stem from a desire to hide relevant material to gain an unfair advantage, but are much broader and more benign: to avoid disclosing private information to anyone (including one's own lawyers) that has no bearing on the dispute at hand. These amount to a loss of privacy without any corresponding gain in determining the facts or assuring the parties and the court that full disclosure has occurred.

Perhaps inadvertently, developments in discovery law and practice may have a pro-privacy impact for civil litigants. While much of the discussion of discovery changes rightfully focus on the costs of discovery, spoliation and document preservation, and enhancing cooperation, discovery's evolution to address many of its recognized problems promise to also alleviate the unrecognized problem of unnecessarily broad invasions of litigant privacy.

1. The Privacy Benefits of Predictive Coding

The first area of improved privacy protection is technological. Technological developments in recent years have generally had a privacy-reducing effect, leading to people storing more data, sharing more personal information more broadly, and allowing others to glean more conclusions from that personal data through aggregation. But the development of predictive coding technology, coupled with the courts' recent growing acceptance of its use, may have the opposite impact in discovery, because it can dramatically reduce the number of non-responsive documents actually seen and reviewed by anyone else.

All document disclosure in discovery entails a loss of privacy to some extent, but the loss of privacy involved in turning over non-responsive documents is more difficult to justify as just another cost of our civil litigation system. These documents have little or no bearing on the reason the client is in court. They may deal with the mundane (a grocery list or a fantasy football update) or more sensitive matters (inter-personal disputes with non-parties, or health or family matters that have no bearing on the case), but either way most clients are not eager for others to dig through such personal and irrelevant information unnecessarily, even their own lawyers.

Because predictive coding can dramatically reduce the total number of documents reviewed by human eyes, it accordingly carries a significant privacy benefit. While benefits in efficiency, accuracy, and cost likely remain predictive coding's greatest selling points to clients, individual clients and company officers are likely to prefer having fewer of their irrelevant emails and other documents reviewed by outside eyes.

2. Indications of Reasonable Judicial Approaches to Discovery of Social Media

Second, while clients are accustomed to viewing email as fair game in discovery, and may have conditioned themselves to draft their emails with that possibility in mind, for many that conditioning that has not yet taken hold when it comes to the latest targets in discovery: social media and text messaging. Likely because they are relatively new and informal modes of communication, people tend to have a greater expectation that personal Facebook messages or private texts to non-parties will not find their way into legal proceedings.

While arguably relevant texts and Facebook messages remain subject to disclosure and penalties for spoliation, as litigants discovered firsthand in two high profile cases earlier this year involving deletion of Facebook accounts after litigation commenced, a recent ethics opinion from the New York County Lawyers Association counsels against overreaction to the harsh results in those cases. While the law of spoliation applies to social media generally, the NYCLA noted that courts have expressed caution in permitting opposing counsel to engage in "fishing expeditions" of opposing party's social media pages. In addition, it noted that there is no ethical bar in advising clients to remove certain posts prior to the duty to preserve, to help clients implement a social media policy, and even to review draft posts or messages on social media prior to their posting by the client.

Moreover, a recent Pennsylvania decision denied sanctions for the deletion of text messages even after litigation commenced, finding that the demand for a complete litigation hold on all text messages would be unreasonable: "Because of the volume of text messages that are frequently exchanged by cell phone users and the limited amount of storage on cell phones, it would be very difficult, if not impossible to save all text messages and to continue to use the phone for messaging."

Thus, while the law regarding social media and texts remains in its early stages and it is clear that the regular principles of spoliation apply, it does appear that courts are approaching these forms of communication with an eye toward practical reality and a recognition that an opponent's entitlement to discovery of such materials is not automatic. Both principles, if they take hold, would operate to provide some reassurances of protection of private social media and texts of dubious materiality.

3. Proposed Rules Amendments May Further Benefit Privacy

Finally, and more directly, proposed amendments to Rules 26 promise additional privacy protections in the discovery process. The proposed amendments to Rule 26, currently in their request-for-comment stage, turn the federal courts' current ability to limit disproportional discovery in Rule 26(b)(2)(C)(iii) into a mandate limiting the scope of discovery generally to that which is "proportional to the needs of the case," including "the importance of the issues at stake in the action," the "importance of the discovery in resolving the issues," and "whether the burden or expense of the proposed discovery outweighs its likely benefit." While the drafters emphasized their hope that the rule will be enforced more frequently to reduce the cost of discovery, there is room in the rule (particularly its language requiring consideration of the "burden or expense" of the proposed discovery) for arguments that the privacy implications of proposed discovery constitute a burden that outweighs its marginal relevance to the case. Thus, as courts take a more watchful eye over proportionality, privacy may benefit.

In addition, the proposed rule amendments make linguistic changes to emphasize that proper discovery is limited to "matter[s] that [are] relevant to any party's claim or defense." While this limitation exists in the present Rule 26, the drafters noted that courts had read another sentence of Rule 26—which noted that discovery "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence"—too broadly in favor of permitting discovery of irrelevant matters. Therefore, the proposed Rule 26 deletes the "reasonably calculated" provision, and instead notes only that "[i]nformation within this scope of discovery"—i.e., both relevant and proportional—need not be otherwise admissible.

Both changes should, if implemented in accordance with the drafters' intent, limit the broad fishing that accompanies many discovery requests—fishing that causes not only an increased cost to discovery, but also a needless invasion of litigant privacy.

In sum, while an argument that "these measures will protect my client's privacy" may not yet be one that courts or opposing counsel are ready to acknowledge as a meaningful factor in narrowing discovery, the privacy-protecting effects of discovery's evolution are worth monitoring, and may provide some comfort to clients reluctant to undertake the extraordinary privacy invasion that civil litigation has in recent history required.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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