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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.