70 Pages Posted: 27 Apr 2017 Last revised: 7 Jul 2017
Date Written: March 5, 2017
Big data has affected American life and business in a variety of ways — inspiring both technological development and industrial change. However, the legal protection for a legal person’s right to his or her own personal information has not matched the growth in the collection and aggregation of data. These legal shortcomings are exacerbated when third party privacy interests are at stake in litigation. Judicial orders to compel sensitive data are expressly permitted even under the few privacy statutes that may control data transfers. Historically, the Federal Rules of Civil Procedure favor generous disclosure of information. But as litigation becomes more technical and data collection and transfer costs are decreasing, this Article argues that the judiciary must take an invigorated role in discovery — in particular when ill protected, third party privacy interests are at stake.
First this Article explores the existing legal support for informational privacy rights in constitutions, statutes, and tort. As explained, the legal protections that exist are slim. This Article employs a novel theoretical model to illustrate that the current law is particularly ill suited to protect third party privacy rights in discovery because the law does not penalize parties for acquiescence to overreaching discovery requests. Therefore, with the current legal backdrop, to protect informational privacy rights, the judge’s role as the discovery gatekeeper is imperative. To emphasize the need for a privacy sensitive judiciary, the Article examines an ongoing litigation Morgan Hill Concerned Parents Assn v California Department of Education, where the otherwise FERPA-protected school records of an estimated ten million students were ordered to be disclosed—including addresses, social security numbers, birthdates, disciplinary records and test scores.
This Article proposes a historically based, three step framework to protect the privacy interest of litigants and effected third parties. The time is ripe for renewed judicial focus on privacy interests in the courts, a recent amendment to the Federal Rules’ was made precisely to encourage litigants and the court to limit the size and scope of civil discovery. In addition to discovery reforms, this Article proposes changes to the law to incentivize collectors of data to either decrease collection of sensitive data or increase investment in privacy protections.
Keywords: privacy, information privacy rights, discovery, FERPA, HIPAA, Brandeis, cybersecurity, FRCP 26, Brandeis, brand risk, sovereign immunity
JEL Classification: A12, A13, C80, D62, D81, I00, K00, K13, K20, K23, K41, L14, M15
Suggested Citation: Suggested Citation
Boliek, Babette, Prioritizing Privacy in the Courts and Beyond (March 5, 2017). Cornell Law Review, Vol. 103 (Forthcoming); Pepperdine University Legal Studies Research Paper No. 2017/11. Available at SSRN: https://ssrn.com/abstract=2959636