HIPAA & Social Media in Discovery

Some cases are a two for one deal. This one covers HIPPA and social media.

No End-Run Around HIPAA

The Defendants sought a protective order to communicate directly with the Plaintiff’s health care providers without notice to the Plaintiff’s attorney and outside of the attorney’s presence. Ford v. United States, 2013 U.S. Dist. LEXIS 104030, at *2 (D. Md. July 25, 2013).

The Court said no.

Doctors Confer Together

The medical information could still be requested through normal discovery. As a prior Court explained, “there are ‘significant public policy reasons for keeping a plaintiff’s sensitive medical information restricted,’ which HIPAA protects by allowing disclosure of only “expressly authorized, limited, and specifically identified protected health information,” rather than unlimited communications.” Ford, at *2, citing Piehl v. Saheta, Civ. No. CCB-13-254, 2013 U.S. Dist. LEXIS 79401, (D.Md. June 5, 2013).

Social Media Discovery 

Rubick's Cube with social media logosThe Government sought the production of “any documents[,] postings, pictures, messages[,] or entries of any kind on social media within the covered period relating to [c]laims by Plaintiffs or their [e]xperts.” Ford, at *3.

The Court held the Government’s request was not narrowly tailored, thus overly broad and vague.

The Court explained, “[The Request] does not describe the categories of material sought; rather, it relies on Plaintiffs to determine what might be relevant.” Ford, at *5.

The Government’s request covered from September 2009 to present. It also defined claims as follows:

[A]ny factual allegation made by Plaintiff, Plaintiff’s husband[,] or any hired or treating expert in either their report or deposition. These include, but are not limited to: a lack of fluency; inability to initiate conversation; headaches; seizures; general malaise; pain; memory loss; loss of ability to work; loss of ability to continue education; inability to express thoughts or feelings; inability to name or label pictorial items; general inability to communicate; difficulty with semantic expression or usage; difficulty describing events in the past; inability to organize thoughts; inability to do more than one task [at] a time; depression; marital discord or relationships; inability to do activities outside of the house; inability to do activities with kids; inability to go places; inability to interact with friends or family.

Ford, at 3-4.

The Government had also requested “more pointed” discovery requests that would require the production of social media responsive to those requests, so any responsive social media would have to be produced pursuant to the valid requests. Ford, at *5.

Bow Tie Thoughts

Litigants do not have the right to unrestricted access to everything an adverse party ever said or thought. It is time for relevancy to become a trending hash tag in drafting requests for social media.

The Federal Rules of Civil Procedure and case law do not allow direct access to an opposing side’s hard drives as a matter of right. Moreover, even if you got everything (like every email message for three years) that is by no means a victory. It now has to be reviewed.

The same can be said for social media.

Judges have been a steady bulwark of restraint for social media requests. There are a few exceptions of entire profiles being produced, but I think those will be the exception and not the norm.

Requesting social media conceptually is not different than other ESI. The issue is knowing where to look and recognize the different types of social media that an opposing party can have responsive ESI.

One thought on “HIPAA & Social Media in Discovery

  1. Pingback: HIPAA and Social Media in E-Discovery and More E-Discovery News of the Week | E-Discovery Beat

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