Friday, December 2, 2022
Allyson Haynes Stuart (Charleston School of Law), Privacy in Discovery After Dobbs, Va. J.L. & Tech. (2022):
Modern 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.