A Right to Privacy for Modern Discovery

Abstract

Recently, the Supreme Court found that a person has a Fourth Amendment right to privacy in historical cell phone records because of the comprehensive nature of the compilation they provide. As with detailed, encyclopedic GPS information, the nature of these chronicles of their users’ lives implicates privacy despite the traditional notion that a person lacks a privacy interest in his or her location or movements. The comprehensive nature of that location information also led to the Court’s rejection that the information lost its private nature because it was in the hands of a third party. The view that individual pieces of information which would not implicate privacy transform into a “mosaic” when compiled into a broad picture of an individual’s life over a span of time, was first expressed by the Supreme Court in 1989 in the context of a FOIA exemption. The Court found that, despite the fact that individual items of a person’s “rap sheet” are publicly available, their combined power when gathered together into a single, comprehensive dossier deserves privacy protection. These decisions have direct relevance to privacy in another realm that is being tested by changes in technology: civil discovery. Here too the nature of discovery itself is very different from a pre-digital set of communications or files in the hands of a litigant. Discovery now includes information prepared automatically by a device that the litigant wears or carries. It includes records of all manner of interactions with websites and applications, and implicates health, finances, sexuality, and other aspects of a litigant’s life. In addition, there is clear precedent for protecting civil discovery when requests implicate federal statutory protections like FOIA’s exemptions. This article analyzes caselaw reaching back to the adoption of the Federal Rules of Civil Procedure to find a strong precedent for protection of privacy in discovery based on Supreme Court doctrine and public policy represented in federal and state statutes. The article traces this history to current subjects of e-discovery – cell phone data, social media content, wearable devices and so on – whose scope and subject matter implicate broad privacy concerns. Recent Supreme Court doctrine adopting the mosaic theory of privacy has direct application to discovery requests for modern digital chronicles of a person’s life.