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Will "Discovery" Invade My Right to Privacy?

Posted by William K. Thayer | Apr 01, 2019 | 0 Comments

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Sometimes in the course of discussion about the pros and cons of proceeding into litigation a client will ask me, “Will the discovery process invade my right to privacy?

The short answer is – “Yes”. If “right to privacy” means an expectation on your part that you would be able to avoid having to discuss or reveal personal details about your life including private, sensitive, and intimate aspects of your day to day world, then yes, the process of discovery may very well result in a “invasion” of your right to privacy. When I explain that to clients, I usually hear two additional questions, which I will address, in turn, below.

First – What kind of things might I be asked about or required to obtain and produce in discovery during litigation of my case?

Some or all of the following topics may be inquired into by opposing counsel, either by way of written interrogatories and requests for production served upon you, or when your deposition is taken by the opposing attorney.

Background questions – including regarding any and all names and aliases you have ever used, your marital status, children's names and ages, lifelong residence history, educational background, work history and current employment, criminal convictions, drug and alcohol history and usage, mental health issues, prior medical conditions, prior accident and injury history, hospitalizations, etc.

Prior medical, accident, drug and alcohol, mental health assessment or counseling, school, work, jail or prison, or other records may be requested – including covering several years prior to the event at issue and depending on the nature of the lawsuit brought and the specific claims at issue as a part of it. It is not unusual, for example, for the courts to require a plaintiff to obtain and produce at least 5 years of prior medical and counseling records in a typical personal injury case if requested by the defense, and a broader production may be ordered in some cases.

How the accident or event at issue occurred questions – including what witnesses were identified, who or what caused the accident or event at issue, did police arrive and investigate, what impact forces were involved, descriptions of property damage, etc.

Mechanics of injury questions – as in how did your body move or get injured and what if anything in the way of body parts struck anything or were afflicted, etc.

Describe all injuries being claimed questions – including when did pain/symptoms first onset, detail all medical care sought and which helped or didn't help with symptoms, itemize all costs of care and prescriptions and mileage traveled for care, etc.

Was any treatment recommended that you didn't obtain or complete – including what care that was recommended did you fail to do and why, etc

What wage loss or impaired earnings capacity are you claiming – including what doctor prescribed time off from work and for which specific days or time periods, employer verification of your wage amounts and hours missed and why, could you have worked light duty, can you corroborate your wages independently of your own and your employer's testimony (typically 5-10 years of taxes returns are requested), etc.

Employment and personnel files and school or college records – employment records, applications for jobs, personnel files, school records, grade transcripts, scholastic testing documentation, etc., may be requested and the court will likely require production of, in cases that involve either a wage loss claim or an impaired earning capacity claim.

Tax returns – as noted above, tax returns or at least W-2s, schedule Cs if a person is self-employed, and other documentation is routinely requested when a wage loss or impaired earning capacity claim is being made (and in wrongful death cases where the deceased's earnings are at issue).

Describe your course of recovery from your claimed injuries and any activities you claim were or are still affected – including at work, home, family, socially, recreationally, sports, at the gym, and even intimately (if your claim included the contention that your sex life was or is affected by your injuries), etc.

Current status – including what all healed versus what are you left with in the way of pain or other symptoms that you attribute to your injuries from the event at issue (and if some things got better, how long did it take for them to improve and go away), etc.

What have your doctors said about your prognosis – including what you believe your future may hold with respect to having to live with a permanent condition, or whether you feel you will be able to get back to how you were before the injury, etc.

How much money are you asking for in your lawsuit and why – including what economic losses are you asserting and in what amounts (such as property damage, past and future medical bills, prescription expenses, mileage to and from medical treatment, wage loss or impaired earnings capacity, and domestic help expenses), and what non-economic losses are you asserting and in what amounts (such as pain and suffering, mental and emotional distress, inconvenience, disability, disfigurement, loss of society and companionship, or loss of consortium), etc.

Social media – defense requests often include that plaintiffs provide their Facebook login and password so that counsel can access and download their account, whether it is on a “private” setting or not.  Requests are broad enough to include Twitter, Instagram, and other social media posted on since the injury at issue occurred, etc.  Note – just because social media is inquired into and we may have to turn over certain relevant portions of items that were posted to one social media forum or another, it won't necessarily result in the plaintiff actually having to turn over their account passwords to the defense; and, motions for a protective order can be filed objecting to overly broad disclosures and arguments that such would be too invasive may be successful, depending on the case and the judge monitoring the case. 

And the above is just a taste of what the defense may inquire into, and request documentation concerning, as the litigation discovery process proceeds in a typical personal injury or wrongful death case.

So, will your privacy rights be compromised if you file a lawsuit? Obviously, yes, at least to some degree. Again, the above is but a partial list of all of the topics that opposing counsel may try to delve into, and typically will succeed in doing so with the court's blessing – even if you don't want to have to cooperate with producing some or all of that requested information and documentation. Which leads to the second question I am often asked.

Second – Why does the other side get to pry into my private matters in discovery – will the court really let them do so?

The rules governing discovery in Washington and Oregon are broad, and allow attorneys to inquire into any area that they might wish to cover, so long as it is reasonably calculated to lead to admissible evidence at trial. The reason the courts tend to allow such broad discovery ties into the notion that a party claiming damages from another bears the burden of proving the losses and harms claimed. Perhaps the thinking is that if someone is going to bring a lawsuit and seek damages against another, they cannot pick and choose what they will reveal to the accused party in the way of information and documents within their control and possession. In any event, courts have long-protected the right to challenge a party or witness through cross-examination, and the modern if not the traditional view has been that cross-examination can only successfully aid in the truth-finding process if all parties have equal and fair access to any and all documents and information that may be reasonably calculated to lead to admissible evidence.

Having said that, as is alluded to above, there is a process by which your attorney in the course of litigation can seek a protective order from the court, if you believe that certain questions or document requests have been put to you unfairly and unnecessarily, or are being brought only to harass you, intimidate you, or to invade your right to privacy for no good reason. That process is the motion for a protective order

Finally, it is important to note that while discovery rules may allow inquiry into some or all of the above, discovery is much broader than what may necessarily be admissible at trial, and your attorney can file pre-trial motions and voice verbal objections during the trial, to challenge and limit what private information acquired from the discovery process actually ends up being admitted at trial.

If you have any questions regarding the discovery process, your privacy rights, or whether or not a motion for a protective order might be successful if brought by your attorney on your behalf to shield some sensitive aspect of your past or present life from disclosure as part of litigating your personal injury claim or a fatal accident case involving a loved one, please feel call one of our attorneys at Schauermann Thayer. We always appreciate the opportunity to answer questions concerning any aspect of personal injury, wrongful death, and insurance claims including cases arising out of automobile, trucking, motorcycle, bicycle, and pedestrian accidents in the states of Oregon and Washington.

About the Author

William K. Thayer

Bill Thayer is one of the founding partners of the Schauermann Thayer Jacobs Staples & Edwards law firm. Bill is licensed in both Oregon and Washington, and has been practicing law since 1980. Bill advises and represents clients in personal injury and wrongful death claims and litigation, including automobile collision, motorcycle, bicycle, and pedestrian injury and death cases, dog bite cases, construction site injury claims, and a myriad of other types of injury and death claims. While many claims are settled through negotiation or mediation, Mr. Thayer has litigated, arbitrated and/or tried to verdict many cases for his clients. He is also frequently appointed by courts and other lawyers to serve as an arbitrator of tort claims. Bill enjoys writing as one of his varied recreational interests when he is not working.

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