How to Invade Someone's Privacy 101

• Publication year: 2021
• Author: By Erin A. Norcia, Esq. and Hengameh Kishani, Esq.*

HOW TO INVADE SOMEONE'S PRIVACY 101

By Erin A. Norcia, Esq. and Hengameh Kishani, Esq.*

MCLE Article

I. INTRODUCTION

Your medical and financial information is private. There is a reason you need to verify your identity, seemingly excessively, to view your medical and financial records. Your documents are shielded from those trying to gain access to them under the right to privacy granted not only by the U.S. Constitution, but also the California Constitution.

The right to privacy is mentioned in the Fourth Amendment of the U.S. Constitution, which reads:

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.¹

The California Constitution protects the right to privacy with more express language. Article 1, section 1 of the California Constitution directs "[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy" (emphasis added).² Interestingly, the phrase "and privacy" was added to the California Constitution almost 50 years ago after Proposition 11, sometimes referred to as the "Privacy Initiative," was passed by California voters.³

With the protection of the supreme law of the land and the state's fundamental charter, can your privacy ever be infiltrated by a litigant compelling disclosure of your most private medical and financial records? The answer? You guessed it. It depends.

This article explores both the mechanics for compelling production and arguments for preventing disclosure of private records in the trusts and estates litigation context. A significant percentage of trusts and estates litigation involves lawsuits alleging lack of capacity, undue influence, and/or misappropriation of trust and/or estate assets typically via financial abuse of an elder or dependent adult. Of course, there are many other claims that fall under the "trusts and estates" umbrella, but many cases in this area of the law include these three categories of allegations, in one form or another.

Not surprisingly, asserting and refuting allegations of this nature often requires the examination of medical and financial records. For example, in a will or trust contest where Sibling 1 is alleging that Sibling 2 took advantage of Mom's dementia by procuring a will and/or trust that leaves all of Mom's assets to Sibling 2, Mom's medical records will be key evidence that will be used by the attorneys and experts to analyze Mom's level of mental functioning and susceptibility to undue influence. As another example, in an action where Sibling 1 is alleging that Sibling 2 misappropriated Mom's assets for Sibling 2's own personal use, Mom's financial records will reflect whether funds from Mom's account were going to or for Sibling 2's benefit.

Lawsuits of these sorts can be initiated before or after Mom's death. As discussed below, the rules for obtaining the records apply somewhat differently depending on whether Mom is alive. In addition, in the misappropriation example above, not only would Sibling 1 seek Mom's personal financial records, Sibling 1 may also seek to compel production of Sibling 2's personal financial records. The rationale for seeking Sibling 2's records is commonly based on the argument that Sibling 2's records are necessary in order to determine whether any of Mom's income, such as from a rental property, was being deposited directly into Sibling 2's bank account as opposed to being routed through Mom's account. Funds rightfully belonging to Mom that were deposited directly into Sibling 2's bank account would not be evidenced in Mom's financial records alone. Further, consider that one or more of Sibling 2's banks accounts may be held jointly with a spouse who is not a party to the action. This article addresses the varied application of the rules where a party versus a non-party's records are sought.

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These are obviously just a few examples where medical and financial documents may be sought. However, these examples provide context for instances wherein a litigant may seek to invade an individual's privacy to obtain their medical and/or financial records. In considering whether to permit production of the records over an asserted right to privacy, the court applies the balancing test set forth in the seminal case of Williams v. Superior Court (discussed more fully below), whereby the court weighs the expectation and seriousness of the invasion of privacy against the litigant's interest in disclosure of the records.⁴ It is important and somewhat shocking to note that a litigant is not required to prove any portion of their case or present evidence of wrongdoing in order to obtain someone's medical and financial records. The litigant must only do enough to convince their particular judge or discovery referee that the information sought is directly relevant to a cause of action or defense and is essential to determining the truth of the matters in dispute.⁵

II. SCOPE OF DISCOVERY

The primary purpose of discovery is fact finding. The intention is to remove the gamesmanship element of litigation.⁶ Under both statutory and case law, the right to discovery is broad and must be construed liberally in favor of disclosure so that parties may ascertain the strength of their cases and, at trial, the truth may be determined.⁷ In the absence of a court order to the contrary, a civil litigant has a right to discovery regarding any matter that is not privileged and that is relevant to the subject matter involved in the pending action, if the matter is itself admissible in evidence, or appears reasonably calculated to lead to the discovery of admissible evidence.⁸ California's pretrial discovery procedures are designed to minimize opportunities for fabrication and forgetfulness, and to eliminate the need for guesswork with regard to the opposing side's evidence.⁹ All doubts about discoverability are to be resolved in favor of disclosure.¹⁰

However, discovery does have boundaries. For instance, discovery is only permissible if it is relevant to the subject matter involved in the pending action.¹¹ "Relevant" in this context is interpreted broadly, but it is not unlimited. Discovery must, at a minimum, aid in the party's preparation for trial.¹²

Furthermore, the court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery, such as into one's privacy, clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.¹³ Privacy is an inalienable right protected by the Article I, section 1 of the California Constitution.¹⁴ California courts have held that the right to privacy extends to one's confidential financial affairs¹⁵ and medical records.¹⁶ The California Supreme Court has explained that informational privacy is the provision's central concern, with financial data being more sensitive than other personal records.¹⁷ With regard to medical records, the California Supreme Court recognized that "[a] person's medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected."¹⁸

However, under certain circumstances, even privacy rights may be overcome by a litigant's right to discovery. "On occasion [a party's] privacy interests may have to give way to [the] opponent's right to a fair trial. Thus, courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery."¹⁹ This article explains in detail the balancing test established by the California Supreme Court, but first provides the context in which the privacy right is asserted and the manner for getting the issue before the court in order to obtain a determination as to whether the discovery is permissible.

III. METHODS FOR OBTAINING MEDICAL AND FINANCIAL RECORDS

To obtain medical and financial records, parties may propound written discovery on other parties demanding the production of such documents under Code of Civil Procedure section 2031.010 et seq. Parties may also elect to subpoena the records of parties and/or non-parties directly through a records custodian under Code of Civil Procedure section 2020.020, et seq.

The use of one method does not preclude the use of the other with regard to discovery into the same matter.²⁰ Both options have their own advantages and disadvantages. For example, there is no limit to the number of document demands that can be served pursuant to Code of Civil Procedure section 2031.010 et seq., which means a party can seek a wide range of documents through a single set of requests. On the other hand, a separate subpoena must be issued for each institution from which a party subpoenas records under Code of Civil Procedure section 2020.020, subdivision (b).

Subpoenas issued directly to a records custodian may ensure production of a more complete set of documents. A financial institution likely maintains more complete records of bank statements, check images, etc., than the parties to an action may maintain themselves. Realistically, a records custodian is also less likely to have any incentive to make responsive documents "disappear."

A. Written Discovery - Document Demands

Inspection demands, often referred to as demands for production of documents, are a form of written discovery wherein a party can demand documents in another party's possession, custody, or control that are related to the action. The demands can request the production of categories of documents, and can be tailored to seek the relevant medical and financial records. The...