You get a line, I'll get a pole, we'll go fish'n in the plaintiff's gene pool.

• Author: Ballard, Rebecca A.

THE ADVENT of genetic technology has been utilized by creative defense counsel to argue the presence of a preexisting genetic condition as a superseding or contributing cause to a plaintiff's personal injuries. On August 12, 2004, the California Court of Appeals in Cruz v. Superior Court of Orange County (1) affirmed an order authorizing the infant's mother, serving as the guardian ad litem, to submit to genetic testing under California's version of Federal Rules of Civil Procedure (FRCP) Rule 35. (2) The complaint alleged that doctors cared for the mother during her pregnancy, delivery, and postnatal care in a negligent manner, causing the infant plaintiff serious injuries, including brain damage. (3) The defendant argued genetic testing, requiring twenty milliliters of blood to be drawn from the mother, was needed to inquire as to whether the plaintiff's brain injury was caused by a genetic condition in either the plaintiff or his mother that results in genetic alterations of blood clotting factors. (4) Plaintiff's counsel opposed the order for genetic testing on two accounts: First, the genetic testing is irrelevant to the case because the standard of care for managing the mother's condition would be the same regardless of whether the underlying cause of the infant plaintiff's injuries were genetic or not, and, secondly, there is no indication in the infant's medical records suggesting "thrombotic events" that were part of the defendant's medical expert hypothesis and the "supposed genetic testing that [the defendant's medical expert] is requesting ... does not address what this child suffered--a bleed in his brain." (5)

The Cruz court liberally applied the rule in favor of discovery, stating, "fishing expeditions are permissible in some cases." (6) As genetic tests become less expensive, more reliable, and more capable of detecting an increasing number of conditions, (7) this litigation strategy will become more attractive to defense counsel. However, there is some intangible difference between a physical examination and a genetic examination, leading to uneasiness in allowing the use of FRCP Rule 35 in this manner. This perceived distinction between genetic information (8) and general medical information, has given rise to the movement of genetic exceptionalism, (9) which has lead to a feeling that current rules protecting its confidentially are inadequate and heightened protection for genetic information (10) is needed to subdue the fears of repeated discrimination (11) and eugenic abuses. (12) The genetic exceptionalism has lead to the recognition of a moral right to genetic privacy. Its impact on the political landscape is evident by the numerous introductions of "genetic privacy" bills in both the U.S. Senate and House of Representatives and state legislatures across the country. (13)

Given this social and political environment, defense counsel's attempt to procure a genetic exam under FRCP Rule 35 is likely to be confronted with strong resistance by plaintiff's counsel. This dilemma requires courts to decide between two juxtaposed ideals deeply rooted in our legal tradition: a plaintiff's right to privacy versus the defendant's right to search for the truth. Part I of this article discusses these competing values. Part II addresses various privacy rights that plaintiffs are likely to raise and the strength of those challenges. In attempts to aid the court in reconciling the opposing values of privacy and discovery, Part III proposes how defense counsel may present their request for a genetic examination to alleviate the court's reluctance in ordering the discovery of genetic information.

1. The Plaintiff's Right to Privacy v. The Defendant's Right to the Truth

   1. The Value in Privacy

      A claim to privacy generally captures the broader ideal of self-determination, specifically the claim of an individual to determine what personal information should be known by others. (14) No one wants to live in a glass house. Legal descriptions of privacy represent our society's shared understanding that walls are needed for the creation and preservation of one's personal space. The degree of protection afforded to a certain type of information reflects a social and political value placed on that information. For example, privacy protection surrounding reproduction, sex, and healthcare represent areas where social and political consensus exists for respecting such information. Moral respect for broad protection of privacy, enabling a person to consist of a rational, self-determining, and morally autonomous individual, seems to be the most influential account of the value of privacy.

      Furthermore, the creation of privacy rights aids in enforcing the concept of a limited, non-invasive government. Providing for a collective tolerance of a wide range of popular and unpopular choices empowers individuals to keep in check a potential totalitarian government or tyrannical majority. (15) These very themes resonate in the heart and soul of the Bill of Rights. While privacy is not explicit in the Constitution, privacy protection has a long and complex history in the United States. The Supreme Court in the landmark decision Griswold v. Connecticut (16) handed down the first recognition of a constitutional right to privacy in 1965. Subsequently in Whalen v. Roe, (17) the Supreme Court recognized the distinction between the "interest in avoiding disclosure of personal matters" from the "interest in independence in making certain kinds of important decisions," acknowledging that both of these interests are protected by the Constitution. (18) This distinction is also reflected in the differing tort theories of the "right to privacy." The recognition of a right to privacy has provided the hook upon which we hang some of our most precious rights. (19)

   2. The Value of Discovery

      Discovery is the tool by which truth is sought, the goal being to ensure full disclosure of all evidence necessary and material to the prosecution or defense in an action. (20) "The greatest problem for the human species, the solution of which nature compels him to seek, is that of attaining a civil society which can administer justice universally." (21) Lady Justice adorns our courts to symbolize the desire to attain that lofty ideal. The blindfold covering her eyes represents justice as impartial and giving weight only to the evidence in a trial, so that truth may be discovered without corruption, avarice, prejudice, or favor, leading to the fair and equal administration of the law universally.

      In efforts to foster the pursuit of justice, the discovery process provides litigants with the chance to review all pertinent evidence prior to trial. The discovery rules prevents any "Perry Mason" moments at trial by reducing the chances of an ambush. This process facilitates the resolution of cases upon their merits, rather than counsels' ability to hide crucial evidence and to create a dramatic moment during cross-examination. (22) The discovery process promotes settlement by enabling parties to assess the merits of their case, well before trial, so that each party can determine when to fold, before money is spent and time is wasted. Furthermore, judicial resources are spared because discovery educate the parties and often narrows or sharpens the issues in dispute to decrease the complexity and reduce the time spent at trial.

      Accomplishing these goals require the discovery rules be accorded broad and liberal treatment. (23) Generally speaking, the FRCP Rules entitle a party to demand the discovery of any matter that is relevant to the subject matter and "reasonably calculated to lead to the discovery of admissible evidence." (24) Finding roots in the pursuit of justice concept, the violation of one's privacy in the litigation setting is justified on the rationale that the defendant, being hauled into court against his or her will, has the right to fully explore the plaintiff's claim and to defend his or her integrity. To trump this becomes an uphill battle for plaintiff's counsel to convince the court that discovery is so unrelated to the subject matter of any claim, defense, issue, statement, document, or other discoverable matter in the case.

      Yet, granting the discovery rules such broad and liberal treatment is in direct conflict with the plaintiff's freedoms of privacy, confidentiality, and autonomy. Philosopher Immanuel Kant clearly expresses that freedom does not stand in need of any justification, for it is good in itself. (25) Rather coercion is in need of justification, and the burden of proof lies on the man who would advocate coercion and interfere with the freedom of another. (26)

      This balance is reflected in FRCP Rule 35 requiring the defendant show that the information sought is "in controversy" and for "good cause." (27) The promulgators of FRCP Rule 35 deemed that the opportunity to cross-examine was an "insufficient test of truth" and as a result, independent examinations were prescribed. (28) However, they also appreciated that independent examinations were more offensive to the privacy rights of the plaintiff than other discovery devices. In recognition of this, FRCP Rule 35 provides that the movant be burdened with the additional requirements of showing the matter is "in controversy" and affirmatively demonstrating "good cause." (29) The good cause language has been found to be a plainly expressed limitation to the use of FRCP Rule 35, such that not only incorporates the relevancy requirement, satisfied upon showing the matter is relevant to the subject matter or "reasonably calculated to lead to the discovery of admissible evidence," but also adds the additional burden of showing the examination is necessary to the defendant's case. (30) Error in favor of the value of discovery can erode legislative and common law provisions aimed at fostering confidentiality and privacy rights. (31) Yet, error in favor of the value of privacy might...