The Privacy Paradox in Discovery
Allyson Haynes Stuart | 26 Vand. J. Ent. & Tech. L. 615 (2024)
US citizens enjoy strong protection against criminal searches pursuant to the Fourth Amendment, but they must produce a diary entry from a bedroom drawer or a text message to a romantic partner if it is relevant to a civil case and not privileged. The reason for this paradox, long a mystery to outsiders, is a complex mixture of history and culture. Understanding the paradox is particularly important now. In the absence of any other check on discovery, federal and state courts have relied on persuasive sources to protect privacy in pretrial practice, none of which are reflected in the discovery rules. The Supreme Court gutted one of those sources, the federal constitutional right to privacy, in Dobbs. At the same time, technological advancements and increasingly intrusive discovery requests push the boundaries of the rules. It is time to strengthen individual privacy rights in the context of civil discovery requests that implicate intimate and even incriminating details.
The early history of discovery rules in the federal system shows no intent that parties to a civil lawsuit waive any privacy rights they might otherwise possess. Rather, the breadth of discovery—intended to prevent secrecy before trial—resulted from grafting equity procedures onto legal claims without retaining equitable guardrails. As technology changed the discovery landscape from designated paper documents to broad categories of electronic databases, broad disclosure became akin to a constitutional right. While digital invasions of privacy were a primary issue for legislative protection and Fourth Amendment concern, no concomitant change occurred in the discovery rules. Instead, courts protected against discovery into private matters by reference to persuasive privacy laws and by use of protective orders, which are increasingly ineffective.
This Article proposes a revision to the civil discovery rules that would give explicit protection to information when it is subject to a reasonable expectation of privacy. The revolution initiated by the broad discovery rules did not result in transparency and justice but instead provided tools for abuse. Simply because sensitive information housed in a database or on the cloud is potentially relevant to broad issues in litigation does not mean that it should be presumptively discoverable. Instead, courts should require production only based on a showing of substantial need. Given the erosion of constitutional protection in Dobbs and its intimations for other rights, the legal system must prevent the use of broad discovery to harass, embarrass, and deter access to the courts.