The loss of privacy in injury litigation is one of the things that surprises people. “Why do I have to give them those records? Those are not relevant.” I could not estimate the number of times we’ve heard something like that from a client in an injury case.
Discovery is Intrusive
A person pursuing a money recovery in an injury lawsuit is required to provide access to anything that the defendant’s lawyers seek that is “reasonably calculated to lead to the discovery of admissible evidence” and is within their custody or control. This is what leads to the loss of privacy in injury litigation. This happens in the discovery phase of litigation. The legal term used is “discoverable information.” It is not the same as “relevant evidence.” And it is not the same as evidence admissible at trial. Lots of things that are not relevant or admissible are discoverable. This can be one of the unpleasant lessons that a first-time injury litigant learns as they go through a lawsuit.
This is an incredibly broad standard. It allows the defense lawyer hired by the insurance company to make all sorts of intrusive inquiry. For example, records that require a person’s signed release to obtain (medical, employment, mental health care, school etc.) are considered within their control. For many injury claimants, it is frustrating, annoying and at times feels degrading. Unfortunately that is the law.
Insurance Company Hired Lawyers Are Empowered to Dig Into Your Background
The unfortunate reality is that a personal injury plaintiff’s past history is pretty much an “open book” in litigation. For example, a person’s employment history and records fall within the standard of discoverable information. Sometimes, clients do not want to provide us a release to get those records to respond to the defendant’s request to see them. We explain then that the most likely next thing is the records would subpoenaed directly by the defendant, or the defendant would go to court to get an order for the records. In those instances, the bad guys get to see the records before we do.
And, If the court gets involved it can make a client pay the defendant for the lawyer’s time in getting the records and preparing all the papers required to make that happen.
That’s the unpleasant reality.
There Can Be Some Protections Of Your Privacy
The good news is that if in your employment records (or any medical or other health care records) there is material that is of a highly-sensitive nature and is not relevant then your lawyers have the ability to go to the Court and have the judge authorize it being withheld. Certainly, in some cases a history of sexual or other abuse can in an appropriate instance be kept away from the insurance company lawyers. BUT, your lawyers see everything. And there is no guarantee the judge would authorize holding back everything you might wish was held back.
You Have to Be Willing to Go Through the Litigation Process If You Want a Fair Recovery
The process that a plaintiff goes through in discovery can feel invasive and be disturbing. Often it feels like you, the injured person, is the one on trial. That is because, in part, you are even though you did nothing wrong. But, under the law, it is your obligation as a plaintiff to prove the harms and losses incurred because of the defendant’s action. The defense-via its insurance company hired and paid lawyers– wants to minimize them.
A person contemplating an injury lawsuit needs to let go of the belief that as far as within the suit you can maintain personal privacy. The bigger your injury the truer that becomes.
You should consider the loss of privacy in injury litigation. Ultimately, if maintaining your privacy is more important to you than being fairly compensated for your losses than you should make the decision to walk away from litigation.
Before you make that decision, though, call us to discuss your concerns. Zach Zollinger or one of our partners can help you understand your full situation.