California Trust, Estate & Probate Litigation

Part 3: What to do and when to do it.  (See part one and part two.)

So your private information is being sought, what are you going to do to protect it?  That depends on the manner in which information is being requested by the opposing party.  Private information will either be (1) requested directly from you through the use of interrogatories (a fancy word for “questions”) or document demands—both of which are forms of written discovery—or (2) requested from a third-party (such as a bank or medical provider) using a subpoena.

1.  Information Requests sent directly to you. 

     A.        State your Objections.  If you receive written discovery, such as interrogatories or document demands directly from the opposing party, you must state your objection based on the Right to Privacy within the deadline provided—that’s usually 30 days after being served with the discovery.  If you fail to state your objection, you waive it!  Let me say that again: if you fail to state your objection to producing private information based on your Right to Privacy, then you are waiving that right.  Therefore, you must ensure that your objection is timely made in writing by responding to the discovery requests with the stated objection.

A Right to Privacy objection goes something like this “The information sought violates the responding party’s Constitutional Right to Privacy and no further information will be provided on that basis.”  You can say it however you like, just be sure it clearly is expressing your Right to Privacy objection.

After you object, the opposing party has the right to bring a Motion to Compel, asking the Court to force you to answer the questions or produce the documents regardless of your Right to Privacy.  You then must respond to the Motion and explain to the Court why your rights should be respected in your case.  The Court then uses the balancing test (discussed in Part One of this series) and decides who is right and who is wrong.

     B.        Move for Protective Order.  As an alternative to serving objections and waiting for a Motion to Compel, you can be proactive and bring a Motion for Protective Order asking the Court to rule that your Right to Privacy should prevail over whatever information is requested.  Typically, a party does not bring a Motion for Protective Order because it’s much easier to simply object and then see if the opposing party wishes to force the issue by filing a Motion to Compel. 

If, however, you want to be the first one to bring the issue to the Court’s attention, you can file your Motion seeking a protective order—which would protect your private information from being disclosed.

2.  Information Requests made to a Third-Party (such as a bank or medical provider)

At times, an opposing party will seek your private information from third-parties by serving subpoenas on entities that record your private information, like banks and medical providers.  When a third-party is subpoenaed for your private information you, as a party to the lawsuit, are required to file a Motion to Quash the subpoena.  You do not have the luxury of simply serving written objections as you would with written discovery sent directly to you.  You must take action in Court by way of a Motion.  If you fail to file the Motion, then the information can be produced even though it is otherwise private information. 

As soon as you file your Motion to Quash, there is an automatic stay of the subpoena until the Court hears and rules on the underlying Motion.  So once your Motion is filed, you’ll want to serve a copy of it on the third-party entity so that they know the subpoena should be put on hold until the Court rules.

By the way, if you are NOT a party to a lawsuit, but you receive notice that someone is going to subpoena your bank, medical, or other private records, you can object to that by simply serving your written objections using the form that is required to be given to you along with the notice of the subpoena.  Non-parties can protect their rights by simply objecting—they do NOT need to file a Motion in Court.  Once written objections are made by a non-party, the party seeking the information would have to bring a Motion to Compel in Court in order to overcome the objection.

The bottom line: you must take action to protect your Right to Privacy.  When the time comes to protect your rights, make sure you act promptly!

My approach to depositions using Motions in Limine

Part 1: What is the right to privacy?

Do you have a right to privacy anymore?  in this age of ubiquitous information and password breaches, its hard to imagine that anything is confidential.  

In California, an individual's right to privacy is contained in our State's Constitution--so it is a Constitutional right.  And the Court will uphold that right, even in litigation where parties typically are allowed to request information and documents on any topic that is “reasonably calculated” to lead to admissible evidence (referred to as “discovery”).  That's an important standard to understand because the information requested in discovery does not, in itself, have to be seeking admissible evidence.  Rather, the discovery standard allows an opposing party to obtain any information that is reasonably thought to lead to evidence.  In short, it's a pretty wide open standard.

The right to privacy, however, cuts that standard short where the information requested falls into the definition of "private" information.  This post is the first in a three-part series to discuss the right to privacy in California Trust and Will litigation.  As a party to litigation you need to know (1) what the right to privacy is, (2) when you should assert it, and (3) when you should consider not asserting it even where the right exists.  But so often the right to privacy is trampled without any thought as to whether it should be asserted and defended, where necessary.

What is private information?  The right to privacy is contained in Article I, § 1 of the California Constitution.  Private information includes things like medical records, bank accounts, financial information, and other personal, non-public information. 

In Trust and Will litigation the right to privacy is often involved in a party’s attempt to gain access to bank information and tax records.  At times, such information can be accessed and must be disclosed to other parties.  But that’s not to say it must be disclosed in every instance.  There are times and circumstances where the right to privacy will prevail (or at least should prevail) to keep private information private.

For example, a case that we see time and again is the use of joint accounts between a decedent and his children.  Legally speaking, once the account is titled as joint tenants each named account holder is presumed to be a part-owner in that account and therefore has a right to privacy in that account information.  Even though the right may not be upheld by the Court, there is a right that needs to be discussed. 

Who does the right protect?  The right to privacy protects everyone—including parties to a lawsuit and nonparties whose information would be affected by the disclosure.  However, the right only applies to actual people, meaning natural persons, not to corporations.

When is the Right to Privacy upheld?  While the right to privacy is Constitutionally protected, its protection is not absolute.  The protection afforded by the right to privacy is qualified, and can be set aside after the court “carefully” weighs the right to privacy against the need for discovery in a given case.

The court must limit discovery of private information unless the Petitioner can meet the burden of showing that:

(1)  the private financial information is directly relevant to issues before the Court;

(2) The need for discovering the private information outweighs the individual’s fundamental right of privacy; and 

(3)  the scope of the discovery is drawn with narrow specificity.

(See Board of Trustees v. Superior Court (1981) 119 Cal. App. 3d 516, 525)

In other words, the private information must be something directly related to the case, which the parties cannot have a fair trial without, and the request must be limited so as not to expose all private information of a party—only so much information as is relevant.

What does this all mean?  It means you do have a right to keep private information private, but it's not an absolute right.  There will be times when private information will have to be disclosed and so much depends on how a particular judge sees these issues and chooses to enforce, or not enforce, the right to privacy. 

That begs the question: should you fight for your right to privacy?  I have fought to maintain privacy for clients, and have even won that fight at times, but there are times when waiving the right to privacy may be your best option from a strategic point of view. 

In part two we will discuss some of the practical concerns that you should consider in deciding whether to fight for your right to privacy or not. 

And then in part three we will discuss what actions you need to take, and when you need to take them, if you choose to fight for your right to privacy.

We have created various handouts for our clients to explain certain aspects of a lawsuit.  In an earlier blog post I shared our handout describing the overall process of a lawsuit.  We also have created handouts on what to expect at a deposition and what to expect in written discovery.  We have decided to make these forms available to you as well by posting them on our website.

Again, these are not meant to provide an exhaustive listing of everything that occurs during the litigation process, but it does provide some basic information so that people who are not familiar with the legal system will have some idea of what they can expect.