While putting together our recent Camp Lejeune post on deliberative process privilege, we came across another discovery dispute that we’ve seen in prescription medical product liability mass tort litigation – plaintiffs refusing to produce their social security numbers.  So we decided to take a look at what’s out there.  We found that “Courts have routinely ordered plaintiffs to disclose their social security numbers when that information has some relevance to a claim, or defense, in the litigation.”  Karn v. PTS of America, LLC, 2021 WL 307412, at *5 (D. Md. Jan. 29, 2021).

In In re Camp Lejeune Water Litigation, 2023 WL 8824494 (E.D.N.C. Dec. 21, 2023), plaintiffs in over 1,000 lawsuits refused to supply either their birthdates or social security numbers (“SS#”).  The obvious reason was to prevent defendants from conducting any independent investigation, particularly into the plaintiffs’ medical histories – even though by filing suit they had placed medical history at issue, thereby waiving any privilege.  Camp Lejeune held that both birthdates and SS#s were subject to immediate disclosure under Fed. R. Civ. P. (a)(1)(A)(i), even though not specifically listed, because it was “basic information” necessary to “the ordinary course of investigating each complaint.”  2023 WL 8824494, at *2 (citation and quotation marks omitted).  “[I]t [wa]s undeniably more difficult for Defendant to choose representative diseases and plaintiffs if they cannot obtain records for almost 90% of [the] plaintiffs” that had failed to provide this information voluntarily.  Id. at *3.  All plaintiffs filing a short form complaint were “eligible for discovery” and therefore required to product this information.  Id.

In the class, rather than mass, action contest, all opt-in plaintiffs in Rodriguez v. Niagara Cleaning Services, Inc., 2010 WL 2573974 (S.D. Fla. June 24, 2010), were required to produce their SS#s to the defendant.  Id. at *4.  The class action opt-in forms were court ordered and consented-to by plaintiffs’ counsel.  Id.  “Accordingly, the Plaintiffs may not unilaterally alter the Court’s Order by redacting portions of the Consent to Join Form.”  Id.

In Hinkle v. Continental Motors, Inc., 2018 WL 100965911 (M.D. Fla. April 18, 2018), the court ordered personal injury plaintiffs to turn their SS#s over to the defendant.

[T]hey have refused without any good reason.  Clearly, Plaintiffs should have disclosed this and will be required to do so.  To safeguard the Plaintiffs’ personal identification information, a protective order is appropriate.

Id. at *1. (citation omitted).  Hinkle followed Gober v. City of Leesburg, 197 F.R.D. 519 (M.D. Fla. 2000).  Gober rejected the proposition that a plaintiff’s SS# was privileged from discovery:

Plaintiff has not identified a privilege that appears to be recognized under [applicable] law.  Therefore, to the extent that Plaintiff’s objection to the deposition question is based on a “financial privilege,” [it] is due to be overruled and Plaintiff is ordered to disclose the requested information. . . .  Plaintiff’s social security number, is relevant and is reasonably calculated to lead to the discovery of admissible evidence.

Id. at 520-21.  See Id. at 522 (imposing sanctions because “the Plaintiff’s social security number is not privileged information and may be calculated to lead to the discovery of admissible evidence”).

Similarly, Breslin v. Dickinson Township, 2011 WL 1577840 (Mag. M.D. Pa. April 26, 2011), the plaintiffs could not withhold their SS# in an effort to stymie the defendant’s investigation of their medical histories.

Defendants are entitled to obtain the Plaintiffs’ Social Security numbers. . . .  [Defendants] seek this information in order to obtain medical and military records from third parties.  These records would contain information relevant to the Plaintiffs’ damages claims, . . . since these records would provide medical histories of the Plaintiffs, medical histories which would reveal the extent to which they have suffered physical or emotional distress.

Thus, these medical records have obvious relevance to any damages claims brought by the Plaintiffs that are premised upon physical or emotional distress allegedly caused by the Defendants’ conduct.  Therefore, securing the Social Security account information that is necessary for obtaining these medical records from third parties is clearly a relevant inquiry under Rule 26 of the Federal Rules of Civil Procedure.

Id. at *5.  See Katz v. National Board of Medical Examiners, 2016 WL 2744823, at *2 (Mag. M.D. Pa. May 10, 2016) (“reference to [SS#s] is a necessary element of a third-party subpoena for institutional records concerning an individual such as those sought by the defendants”).

The plaintiff in Heuskin v. D&E Transport, LLC, 2020 WL 1450575 (Mag. D.N.M. March 25, 2020), failed to include his SS# in a release of medical records, thereby preventing the defendant from retrieving any records.  Id. at *9.  Plaintiff claimed this was a mistake, but had not produced the information, so a motion to compel was granted.  Id.  Likewise, in Marks v. U.S. Security. Associates, Inc., 2008 WL 11337996 (N.D. Ala. Dec. 19, 2008), the plaintiff was compelled to produce her SS#, “provided that the parties agree on a protective order.”  Id. at *2.  Accord Archer v. City of Winter Haven, 2017 WL 3840435, at *5 (M.D. Fla. Sept. 1, 2017); Love v. Fairfield Inn & Suites by Marriott, 2011 WL 6012970, at *2 n.15 (S.D. Miss. Dec. 1, 2011); Saunders v. Knight, 2007 WL 1287901, at *2 (E.D. Cal. April 30, 2007); Jones v. J.C. Penney’s Dept. Stores, Inc., 228 F.R.D. 190, 197 n.13 (W.D.N.Y. 2005); Goodman v. City of New York, 2004 WL 1661105 *2 (S.D.N.Y. July 23, 2004); Elkins v. Broome, 2004 WL 3249257, at *2 (M.D.N.C. Jan. 12, 2004), aff’d, 122 F. Appx. 40 (4th Cir. 2005); Magedson v. Fina, 1993 WL 35261, at *4 (N.D.N.Y. Feb. 10, 1993) (all requiring plaintiffs to reveal SS#s, subject to appropriate confidentiality protections).

A plaintiff’s continued failure to comply with SS# discovery can result in dismissal of the action as a sanction.  In Taylor v. Costco Wholesale Corp., 2020 WL 1271579 (D. Nev. March 17, 2020), aff’d, 2021 WL 3721800 (9th Cir. Aug. 23, 2021), the plaintiff was ordered to disclose her SS# but repeatedly refused to comply.  Id. at *1.  Plaintiff’s failure “render[ed] it nearly impossible for [the] case to proceed, because without this evidence, Plaintiff will be unable to prove her damages, and conversely, Defendant will be unable to properly defend itself.”  Id.  Accordingly, plaintiff suffered dismissal, id. at *2, and the dismissal was affirmed on appeal.  Accord Vickers v. Mt. Morris Township Police Dept., 2022 WL 4820423, at *3 (Mag. E.D. Mich. Aug. 17, 2022) (plaintiff’s refusal to disclose SS# required dismissal), adopted, 2022 WL 4715589 (E.D. Mich. Sept. 30, 2022).

Far more often litigated are cases where plaintiffs seek SS# information from defendants, usually for present or former employees who might be witnesses or putative class members.  Because non-parties have not placed waived any privacy rights by commencing litigation, “courts are reluctant to order the disclosure of a witness’ social security number.”  Olson v. Lowe’s Home Centers, LLC, 2024 WL 25089, at *3 (Mag. W.D. Ky. Jan. 2, 2024) (footnote omitted).  “In the case of non-parties, because individuals have a strong privacy interest in their Social Security numbers, such numbers should generally not be disclosed absent a showing of particularized need.”  Karn, 2021 WL 307412, at *5.  Thus, courts “have repeatedly declined to compel production of social security numbers absent a demonstration by the plaintiff ‘with specificity’ that such sensitive information is necessary.”  Ramirez v. Liberty One Group LLC, 2023 WL 4541129, at *9 (S.D.N.Y. July 14, 2023) (citation omitted).

Any suggestion that social security numbers are routinely discoverable as ‘background information,’ is no longer correct, if indeed it ever was” because . . . “the scope of discovery authorized by Rule 26 (without a court order) has more recently been narrowed, and the emergence of identity theft as [a] major problem has led to heightened awareness of the need to deal with social security numbers with greater care.”

Natkin v. American Osteopathic Assn., 2022 WL 19914189, at *4 (Mag. D. Or. May 11, 2022) (refusing to apply Gober to discovery sought from a defendant), adopted in pertinent part, 2022 WL 3974536 (D. Or. Sept. 1, 2022) (quoting Bacchus v. Benson, 2007 WL 9736176, at *2 (N.D. Fla. Nov. 29, 2007)).

Witness SS#s are only discoverable when the requestor has demonstrated their necessity by actual unsuccessful attempts to contact such individuals, and then only under strict confidentiality requirements.  Id.; see Vilella v. Pup Culture LLC, 2023 WL 7986562, at *10 (S.D.N.Y. Nov. 17, 2023) (Plaintiff “has not shown that the contact information . . ., is insufficient to effectuate notice”) (citation and quotation marks omitted); EEOC v. McCormick & Schmick’s Seafood Restaurants, 2012 WL 2577795, at *3 (Mag. D. Md. July 2, 2012) (“social security numbers are private and should only be released on a showing of relevancy and true need for the information.”); Tate v. USPS, 2007 WL 521848, at *3 (Mag. S.D. Fla. Feb. 14, 2007) (plaintiff not entitled to SS# unless showing actual “difficulty locating a witness”).

Thus, there is plenty of available authority that personal injury plaintiffs must provide their SS#s during discovery.  However, Camp Lejeune appears to be the first time the issue has been litigated in the mass tort context.