The Right to Privacy in Modern Discovery: a review of a great, new law review article – Part 1

Ralph Losey. Published August 29, 2022.

Summary and analysis of Professor Allyson Stuart’s much needed law review article on privacy in ediscovery in civil litigation. The article is supplemented with written and video interviews of Professor Stuart on ediscovery and privacy issues. In Part 2 there will be a special focus on the impact of the Supreme Court’s overturn of Roe v Wade, which was rendered after the article’s publication.

This blog is the first part of my review of one of the most informative and useful law review articles I have read in a long time. A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022). The article is by Professor Allyson Haynes Stuart of the Charleston School of Law. I encourage you to download and read A Right to Privacy for Modern Discovery and keep it handy for its many good case citations. Professor Stuart is a bona fide expert in this area. She specializes as both a scholar and legal practitioner in information privacy, e-discovery and Internet law; three of my favorite subjects.

This is my second venture this year into review of law reviews. For the first on another of my favorite subjects, artificial intelligence, see the May 2022 blogs, Robophobia: Great New Law Review Article – Part 1, Part 2 and Part 3 and Professor Wood’s article, Robophobia. Woods, Andrew K., Robophobia, 93 U. Colo. L. Rev. 51  (Winter, 2022). These highly intelligent, engaging law professor attorneys, Woods and Stuart, give me renewed hope for the profession in general and, especially, for the key areas of technology law.

About Professor Allyson Hynes Stuart

Allyson Haynes Stuart joined the Charleston School of Law faculty in 2004. Allyson is a 1995 magna cum laude graduate of the University of South Carolina. Upon graduation she clerked for David C. Norton, District Court Judge for the District of South Carolina in Charleston. She then worked as an associate for Cleary, Gottlieb, Steen and Hamilton from 1997-2002, and then as a director of the legal department at Sony Corporation of America, 2002-2004. At Charleston School of Law Stuart Professor Stuart teaches contracts, civil procedure, evidence, information privacy law and e-discovery. She has also taught as an adjunct professor at Brooklyn Law School and at the Institute Empresa (I.E.) Law School in Madrid, Spain.

Professor Stuart has written many other articles of interest to readers, including:

• Social Media, Manipulation, and Violence, South Carolina Journal of International Law and Business, Vol. 15 Iss. 2 (2019) p. 100 – 132.
• “Sign-In Wrap” on Mobile Apps, South Carolina Lawyer (2017).
• Making Sure BYOD Does Not Stand for “Breach Your Organization’s Data”, South Carolina Lawyer (2016).

Allyson Stuart has also served as Of Counsel for the Crystal law firm, since 2015. The firm has an intriguing slogan: “Lawyers for Lawyers and International Matters.” The firm says that it is primarily a transactional law firm that offers some litigation services.

To conclude the personal introduction, Allyson, like me, has her own YouTube Channel, focusing on legal instruction. Professor Stuart’s videos, made in 2013, are on what she calls “flipping the classroom.” They address most first semester Contracts issues as well as some difficult aspects of Evidence.

Introduction to Professor Stuart’s Article

Privacy in discovery has been largely ignored in rules of civil procedure and left to the courts and lawyers to come up with their own solutions. The result is a hodge-podge of case law and local rules. This area of the law is, as Professor Stuart aptly describes, buried in “surprising obscurity.” Her article is a much needed unearthing and organization of the law. As Professor Stuart explains in her introduction after discussion of federal civil procedure rule changes:

Amid all these changes, little attention has been paid to privacy as opposed to time and expense.¹⁰ The Rules do not provide for explicit protection against discovery based on privacy,¹¹ with the exception of redaction of personal information under Rule 5.2.¹² There has long been the idea that privacy protection exists against government searches and seizures, but that there is no such concept in civil discovery.¹³ However, close analysis of cases reaching back to the adoption of the Rules shows that federal courts have in fact used privacy rationales to protect against discovery in many areas. District courts in particular have developed an interpretation of the Rules that protects litigants and non-litigants from discovery; courts have developed certain categories of protected information based on a balancing of the right to privacy against the need for the information in the context of the litigation.¹⁴ This law derives from Supreme Court precedent, from public policy represented in federal and state statutes, and from discretionary judicial application of the Rules. This Article unearths this body of law from its surprising obscurity. With a firm grounding in the foundations and justifications for federal protection of privacy in discovery, and in light of recent Supreme Court doctrine, the Article describes how privacy arguments can address increasingly intrusive discovery demands.

Overview of Professor Stuart’s article, A Right to Privacy for Modern Discovery

After an Introduction, A Right to Privacy for Modern Discovery begins with a historical overview of privacy in civil discovery, including the landmark case of Hickman v. Taylor, 329 U.S. 495 (1947). Professor Stuart observes that discovery protections can be divided into two broad categories. One is protection for information or communications deemed confidential, including attorney-client, trade-secret, business records, tax returns. The other is protection for personal privacy reasons, which professor Stuart explains:

is based on Supreme Court interpretation of the constitutional right to privacy in intimate or otherwise highly personal matters, including marriage, contraception, sexual activity, medical information, family relations, and other personal information. In addition, the Constitution protects against compelled disclosure of information that would violate a person’s First Amendment rights, such as freedom of association.

As to the Constitution based privacy protection provided to discovery in civil proceedings (criminal proceedings are not discussed directly in this article), Professor Stuart notes three broad areas:

1. Freedom from Compelled Disclosure of Association: NAACP v. Alabama and Seattle Times v. Rhinehart.
2. Privacy of Intimate Matters: Griswold v. Connecticut, Whalen v. Roe, and Roe v. Wade.
3. Freedom from Compelled Disclosure of Personal Matters: Whalen v. Roe, Nixon, and Reps. Comm.

Next the article considers the public policy of privacy in discovery and identifies three basic grounds:

1. Statutory Publication Shelters
2. Persuasive State Law
3. Balancing the Privacy and Litigation Interests

As to the balancing used to provide privacy to litigants, four factors are considered:

1. Clear Relevancy Rather Than Mere Impeachment
2. Evidentiary Influences
3. Third Party Protection
4. Protective Measures

The next section is Privacy in Modern Discovery, discussed in detail below, followed by the Conclusion. The Privacy in Modern Discovery section, which is the real meat of the article, is divided into three main parts:

1.  Discovery Today, which includes E-Discovery and Proportionality, Modern Subjects of Discovery such as cell phone and social media, Fitbits and other smart trackers, and other discovery from the Internet of Things.
2. Supreme Court Case Law on Privacy and Technology, including the impact on civil discovery of issues arising in criminal cases, such as cell-phone searches, GPS tracking and the “mosaic theory” of collective personal data accumulation.
3. A Modern Framework for Privacy Protection in Discovery, examining the current arguments about privacy in discovery.

Discovery Today

Professor Stuart’s Privacy in Modern Discovery section begins, as noted, with the Discovery Today overview (II.A.). Most readers here will already be familiar with these topics and discussion, so I will not go into them in depth. One important insight she provides pertains to the omission of “privacy” as an express factor for proportionality consideration under the Rule 26(b), FRCP.

While the Rules revisions generally addressed the tremendous rise in ESI volume and costs with emphasis on judicial intervention, cooperation, and reduction in scope, they did not give specific attention to issues of privacy.²¹⁹ However, as discovery’s intrusiveness has pervaded not just vast storage databases and email but chronicles of individuals’ personal lives, privacy has received more attention. Commentators have advocated for privacy to be a factor in the proportionality equation,²²⁰ and courts have followed suit.²²¹ Privacy has also featured prominently in recent Fourth Amendment case law, which has in turn influenced discovery decisions.

In a recent email exchange with Allyson Stuart on the interesting point of Rule 26(B), I pressed her on whether she thinks the Rule should be changed again. Here is her response, which, I should add, she gave me permission to include in this blog post:

I have mixed feelings about yet another revision to the Frankenstein that is Rule 26.  As it is, many practitioners fail to pay attention to the revisions, treating the scope as still including anything that would lead to the discovery of relevant evidence and failing to recognize that proportionality is nothing new.  I think instead the culture needs to be curbed, and attorneys should not try to obtain a vast amount of e-discovery simply because it is accessible. The casual nature of email, text and some social media content make them catnip for attorneys, but I really believe there is a chilling effect on litigation because of it.  In particular, if the only relevance for certain discovery is impeachment value, it should be weighed less strongly against competing privacy interests.  All that said, I would love it if the word privacy were included in the proportionality factors.

Author’s Correspondence 8//9/22 with Professor Stuart

I love how she describes Rule 26 as a Frankenstein. The question remains should privacy be added as another body part to the proportionality considerations. In a video conference with Professor Stuart on August 23, 2022, she expanded on this point. Here is the relevant excerpt, which, I should again add, Allyson Stuart gave me permission to record and publish.

Aside from Rule 26(b) and including privacy factors as part of a proportionality analysis, another hot issue today practitioners is cell-phone discovery. It is found at II.A.2.a. Professor Stuart’s article and case citations and discussion on this point are a helpful starting point for your research. Be sure to look at the article itself for the all-important footnotes.

As the Supreme Court has recognized, cell phones are ubiquitous.²²² Courts find a strong privacy interest in the content of those devices, particular when a party seeks a forensic examination of the phone.²²³ Like inspection of litigants’ hard drives and other computer systems,²²⁴ inspection of cell phones implicates privacy rights, privileged communications, and non-relevant information.²²⁵ Courts are therefore reluctant to order litigants to submit their cell phones to their opponent for purposes of forensic examination absent necessity for purposes of finding highly relevant evidence, or proof of spoliation.²²⁶ Courts also find a strong privacy interest in cell phone records.²²⁷ Courts have been strongly persuaded by recent Supreme Court Fourth Amendment doctrine in finding privacy rights in this data.²²⁸

Professor Stuarts discussion of case law is also very interesting in the Fitbit and Internet of Things sub-sections of Discovery Today (II.A.2.c.&d.). She points out that:

All of these subjects of modern discovery push the boundaries of privacy. Technology enables the gathering and storage of vast amounts of information that create digital chronicles of individuals’ personal lives. This phenomenon has been the focus of recent Supreme Court decisions in the Fourth Amendment context.

In Part 2 of this blog series I will go on to next section of her article, II.B., entitled Supreme Court Case Law on Privacy and Technology. This is very interesting, especially considering the Supreme Court bombshell case on abortion that came down after her article. Dobbs v. Jackson Women’s Health Organization, 597 U.S. _ (2022). Part 2 will go into all of this, along with criminal law considerations, and several more written and video interviews of Professor Stuart, including an interview that goes beyond discovery issues to consider the general privacy implications of Dobbs. I will also consider the privacy implications and other issues raised by the recent Donald Trump criminal warrant.

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