Part Two: When do you fight, and when should you not fight, for your Right to Privacy? (See Part One here.)
In the words of Kenny Rogers, “you have to know when to hold ‘em, and know when to fold ‘em….” Same is true for the Right to Privacy. Just because the right exists and can be enforced doesn’t mean it should be enforced in every situation.
There is a strategy at work here that should be considered to determine whether disclosing private information is better for your case then trying to protect it.
First, let me acknowledge the fact that most parties to a lawsuit want to do everything possible to keep private information from the other side just out of principle. I understand that. Opposing parties tend not to like each other.
But consider this: what if your private information tells a good story? What if that information tells such a compelling story that any Judge or Jury seeing that information would side with you in your lawsuit? That just might change your mind about disclosing private information.
For example, so many times cases revolve around a joint account—money goes into the account and money comes out prior to the decedent’s death. Was the money used for the benefit of the decedent or did the other joint account holder withdraw the money for his own benefit? Allegations fly in each direction and the Court must decide who is right and who is wrong.
A joint account holder may be able to assert a right to privacy over the financial information contained in the joint account and could potentially hide that information from other parties. But what if the bank information can establish that the money in the account was used exclusively for the decedent’s care? Maybe the bank statements show payments to a care facility or nursing home, hospital bills and doctor bills being paid, prescriptions being filled, etc. If this is the case, then the bank information tells a compelling story that even though money went into a joint account, it ultimately benefitted the decedent.
Keep in mind that if you refuse to disclose information under the right to privacy, and if that information is protected from disclosure by the Court, then you cannot use that same information at trial. The law does not allow you to use your rights as both a shield and a sword. If you refuse to disclose it, you can’t use it…period.
Under this example, waiving the right to privacy may be better for the case overall then trying to hide behind it. Keeping good and valuable information under wraps can hurt your case because you then won’t be able to use that evidence at trial.
This is just one example, there are hundreds of other scenarios where the information sought could be either helpful or hurtful to your case. The point is to consider waiving the right to privacy at times. Don’t just assert the right because it’s there. Assert it when needed and let it go when its advantageous to you.
When you do decide to fight for your right to privacy, however, then fight as hard as you can. So many times the right is waived unintentionally or because people think it won’t be upheld. While you can’t guarantee that the Court will uphold your right to privacy, most Judges will give the right fair consideration, and will even protect the right to privacy in many cases.
What do you need to do to assert and protect your right to privacy? That’s the subject of part three of this three part post.