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.