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In addition to its expected slam of the judiciary’s Federal Rules Committee largely toothless proposal for an MDL-specific rule of civil procedure, the LCJ recently did something both innovative and unexpected (at least to us) – on September 19, it proposed amending multiple federal civil rules to address privacy issues.  See LCJ, “FRCP Amendments Are Needed To Guide Courts and Litigants in Proactively Managing Their Shared Obligations To Protect Privacy Rights and Avoid Attendant Cyber Security Risks” (LCJ Sept. 19 2023).  We think that’s an important initiative that our audience should know about, and consider.

The full comment is well worth reading, but here is a synopsis of LCJ’s proposed rules amendments.

  • Rule 1:  Amend to add express reference to protection of reasonable expectations of privacy, particularly as to non-party information.
  • Rule 5:  Amend to discuss role of privacy in the sealing of court filings.
  • Rule 16:  Amend to add privacy and cybersecurity as topics for prompt pre-trial consideration.
  • Rule 23:  Amend to include express protections of the privacy interests of absent class members.
  • Rule 26:  (1) Amend 26(a)(1) to include privacy issues (including cost of redaction) in the proportionality analysis and to exempt legally confidential third-party information from initial disclosure; (2) amend 26(b)(4)(A) to specify protections of personal and confidential information in expert reports (3) amend 26(c) to specify that protective orders can include procedures preventing unnecessary disclosure of legally confidential third-party information; (4) amend 26(e) to exempt legally confidential third-party information from supplementation requirements; (5) amend 26(f) to add privacy and cybersecurity as early discovery topics; (6) amend 26(g) to require certifications that third-party privacy has been preserved in discovery responses
  • Rule 34:  Amend to authorize orders requiring opposing parties to protect the confidentiality of personal or confidential information in documents and electronic data produced under the rule.
  • Rule 37:  Amend to add specific sanctions for failure to “take reasonable steps” to protect personal and confidential information.
  • Rule 44.1:  Amend to prohibit “Catch-22” discovery barred by federal, state, or foreign law or that infringes on the privacy rights of data subjects.
  • Rule 45:  Amend to require that persons seeking subpoenas protect non-parties by prohibiting unnecessary use or disclosure of personal or confidential information, and “Catch-22”

This is the most comprehensive proposal – measured by the number of different proposed rules amendments – that we’ve ever seen from LCJ.  The reason for this effort is both simple and stark.  The Federal Rules of Civil Procedure, written in 1939, almost entirely fail to recognize privacy as an issue in litigation.

Unfortunately, the Federal Rules of Civil Procedure (“FRCP”) fail to provide the needed structure and guidance for proactively considering, avoiding, and managing the complications that arise in most civil law suits related to privacy rights and reasonable expectations, including as to the unique and pervasive personal information that is generated and stored in today’s technology. . . .  The word “privacy” appears only once in the Fed. R. Civ. P. − in the heading of Rule 5.2, which was written before the iPhone was introduced, and is a narrow provision limited to a discrete and outdated list of items such as social security numbers and bank account information to be redacted in paper records filed with the court.

Amendments Needed To Protect Privacy Rights, at 2-3 (numerous footnotes omitted).

We could think of a few other things to add to this list, such as our proposal to amend the technologically outdated federal rules to address:  (1) authorizations for release and production of medical and other relevant records in the hands of third-parties; (2) informal interviews with treating physicians; (3) predictive coding in ediscovery; and (4) provision of blood or tissue sampling for genetic testing.  All of these discovery techniques currently suffer from wildly divergent common-law-type adjudication and could benefit from the uniformity imposed by a rule.  In our product liability sandbox, medical information is the most commonly encountered form of confidential information, but while the LCJ proposal includes “protected health information” in its general definition of “personal information” (see footnote 2) it doesn’t address any issue specific to such information.

That gives rise to another concern.  Just like anything else, “privacy” can be abused in litigation.  The Blog has compiled an “E-Discovery for Defendants Cheat Sheet” (yes, we know, it needs updating) of decisions favoring defendants seeking discovery of plaintiffs’ social media activity.  From reading way more social media discovery cases than is healthy, it is blatantly obvious that plaintiffs habitually raise bogus “privacy” objections to the discovery of information relevant to their personal injury claims, when they have:  (1) put their own medical conditions at issue by initiating litigation in the first place, and (2) disseminated purportedly “confidential” information widely on the internet.  Any proposal addressing privacy concerns in the context of discovery should also state specifically that, in these situations, privacy objections are waived within the context of the litigation, but may (we would go so far as to say “must”) be addressed through confidentiality orders to prevent dissemination outside of litigation.

Another plaintiff-side abuse of privacy is illustrated by the Moline talc “expert” litigation that we discussed here, and that has since resulted in Dr. Jacqueline Moline being sued for product disparagement, fraud and Lanham Act violations for allegedly ginning up a false medical study upon which she based expert testimony against the defendant-turned-plaintiff in product liability litigation.  The court in Bell v. American International Industries, 627 F. Supp.3d 520 (M.D.N.C. 2022), determined that a protective order relating to those study participants (who were all asbestos plaintiffs) should be lifted in light of evidence that the study misrepresented their asbestos exposure history.  Id. at 530-32.  Dr. Moline repeatedly alleged patient confidentiality in her ultimately unsuccessful effort to prevent the defendants from discovering the true, much more extensive, asbestos exposure history, of those study participants.  Id. at 536-38.  We would not want to see rules changes that make it more difficult to for product liability defendants, including our clients, to uncover similar instances of academic and litigation fraud.

We hope that LCJ’s effort to update the Federal Rules to address privacy concerns is of interest to our readers.  It certainly should be.  If so, we encourage our readers to join Lawyers for Civil Justice (like Bexis, who has been active in LCJ for nearly a decade) and to participate in this process directly.