17 research outputs found
The Privacy Paradox in Discovery
No full textThe author proposes a revision to the civil discovery rules that gives affirmative protection to information subject to a reasonable expectation of privacy. Given the erosion of constitutional protection in Dobbs and its intimations for other rights, Allyson argues that we must prevent the use of broad discovery to harass, embarrass, and deter access to the courts
Challenging the Law Online: Southwestern Law Review Symposium on Nancy Kim\u27s Wrap Contracts
No full textIn this essay, the author suggests the role of public opinion could be better harnessed to galvanize opposition to oppressive online terms. Because of the way websites have used this power to impose their own territorial laws, ordinary contract doctrine is ill-equipped to handle any type of review of those laws’ legality. Instead, as Professor Kim notes, other solutions are necessary that focus on true agreement to terms, the existence of choice, and substantive limits on websites’ ability to dictate the law
Finding Privacy in a Sea of Social Media and Other E-Discovery
No full textThis article looks at the case law governing discovery of social media and finds several problems. First, many courts improperly require a threshold showing that relevant information exists in public portions of the user’s social media account before allowing such discovery. Second, courts allow overbroad discovery, often requiring a litigant to turn over his or her username and password to the other party. At the same time, parties seek such information directly from social media sites, attempting an end-run around the relevancy requirement and increasing motion practice. The article argues that, instead, social media discovery should be treated like other party-driven discovery where litigants are entitled to request relevant information that exists on social media accounts and are in turn responsible for providing that information just as they would other discovery in their possession, custody, or control. There is a promising new line of case law following that path. The article then looks more broadly at the emerging issue of privacy in e- discovery and sets forth the existing methods of restricting undue attempts to invade that privacy. Finally, the article argues that the scope of e-discovery dictates a new look at the way our discovery rules protect privacy and finds encouragement in the latest proposed amendments to Federal Rule of Civil Procedure 26(b)(1) to limit the scope of discovery based on proportionality and relevance to existing claims and defenses
A Right to Privacy for Modern Discovery
No full textA Right to Privacy for Modern Discovery Recently, the Supreme Court found that a person has a Fourth Amendment right to privacy in historical cell phone records because of the comprehensive nature of the compilation they provide. As with detailed, encyclopedic GPS information, the nature of these chronicles of their users’ lives implicates privacy despite the traditional notion that a person lacks a privacy interest in his or her location or movements. The comprehensive nature of that location information also led to the Court’s rejection that the information lost its private nature because it was in the hands of a third party. The view that individual pieces of information which would not implicate privacy transform into a “mosaic” when compiled into a broad picture of an individual’s life over a span of time, was first expressed by the Supreme Court in 1989 in the context of a FOIA exemption. The Court found that, despite the fact that individual items of a person’s “rap sheet” are publicly available, their combined power when gathered together into a single, comprehensive dossier deserves privacy protection.These decisions have direct relevance to privacy in another realm that is being tested by changes in technology: civil discovery. Here too the nature of discovery itself is very different from a pre-digital set of communications or files in the hands of a litigant. Discovery now includes information prepared automatically by a device that the litigant wears or carries. It includes records of all manner of interactions with websites and applications, and implicates health, finances, sexuality, and other aspects of a litigant’s life. In addition, there is clear precedent for protecting civil discovery when requests implicate federal statutory protections like FOIA’s exemptions.This article analyzes caselaw reaching back to the adoption of the Federal Rules of Civil Procedure to find a strong precedent for protection of privacy in discovery based on Supreme Court doctrine and public policy represented in federal and state statutes. The article traces this history to current subjects of e-discovery – cell phone data, social media content, wearable devices and so on – whose scope and subject matter implicate broad privacy concerns. Recent Supreme Court doctrine adopting the mosaic theory of privacy has direct application to discovery requests for modern digital chronicles of a person’s life
Privacy in Discovery after Dobbs
No full textModern discovery in civil courts has been criticized for its overbreadth and expense, leading to a series of changes in the Federal Rules of Civil Procedure focused on proportionality. At the same time, there has been increasing interest in privacy in civil discovery, given the rise in litigants’ requests for broad production of social media, cell phone data, and wearable technology. Aside from other compelling reasons to establish privacy bounds for discovery, there are two developments, both deriving from the Supreme Court’s recent decision in Dobbs, that make this issue crucial. First, by overruling Roe v. Wade, Dobbs deals a blow to the constitutional right to privacy, which protects against unfettered discovery. Second, with legislatures across the country rushing to criminalize abortion, women and those who support them face threats that discovery will be used to uncover evidence that they have violated those laws. This article argues that (1) the constitutional right to privacy against compelled disclosure of personal information survives Dobbs. While Roe did provide precedent for privacy protection in discovery, Dobbs does not implicate the privacy interest in shielding from disclosure information concerning intimate matters. (2) In addition, other Supreme Court precedent supports the right to privacy against disclosure of intimate information, including reproductive matters. (3) Third, the right to privacy is protected by reference to other federal legislation and public policy, including FOIA and HIPAA protections. (4) Finally, state constitutional privacy, privileges and case law are not implicated by the Supreme Court decision in Dobbs, and provide protection in state law cases. Together, these principles give courts strong precedent to use their discretion to deny requests for discovery of information whose relevance is outweighed by privacy interests
