The Privacy Paradox in Discovery

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 outsi...

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Bibliographic Details
Published inVanderbilt journal of entertainment and technology law Vol. 26; no. 4; p. 615
Main Author Stuart, Allyson Haynes
Format Journal Article
LanguageEnglish
Published Vanderbilt University, School of Law 22.09.2024
Subjects
Access control
Confidential communications
Data security
Discovery (Law)
Discovery abuse
Electronic records
Electronic surveillance
Laws, regulations and rules
Personal information
Privacy, Right of
Technology application
Work product privilege (Law)
Online AccessGet full text
ISSN1942-678X

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Summary: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.
ISSN:1942-678X