Reasonable Doubt: Filing a lawsuit means giving up some privacy

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      When you start a lawsuit you automatically waive substantial privacy rights. Why? Because the person you’re suing has a right to investigate the “case they need to meet”, which is fancy lawyer talk for: why do they owe you money and how much money do they owe you?

      The easiest example is a personal injury lawsuit. My personal injury clients are often surprised how much personal information they need to disclose when they start a lawsuit.

      Imagine that the minimum wage employees at Wal-Mart do a poor job of shoveling the parking lot and you slip and break your tailbone. Or you’re rear-ended because the person behind you was using their smartphone to find out the latest gossip that his favourite Game of Thrones character is actually off of the show (don’t worry, he’s not, that was just an April fool’s joke). Whatever happens, you’re hurt, you can’t work, and you need to start a lawsuit.

      One of the first things that the person you sue (or usually the insurance company of the person you sue) will do is request your medical records from your family doctor and everyone who has treated you for your accident injuries. And they will probably get them.

      Normally, you have a legitimate expectation that your doctor will keep what you tell them confidential. It’s even a part of your doctor’s code of ethics. That’s because it is important that you tell your doctor the truth and are forthcoming with them about your health.

      Starting a lawsuit effectively waives patient-doctor confidentiality over issues that are relevant to your accident injuries and losses. This means that the defendant is able to look at relevant medical records and is even usually able to interview your doctor about issues relevant to your lawsuit.

      If you’ve had past injuries that are similar to or overlap with your accident injuries, then the defendant will probably seek medical records that date back to before your accident.

      In some cases, clinical records from your psychologist or therapist can also be shared with the defendant; for instance, if you develop depression from experiencing chronic pain from your injury. The defendant is entitled to investigate how much of your depression was caused by the accident and how much of your depression was caused by other things.

      If your lawsuit is started in Supreme Court, then you will likely have to participate in an examination for discovery. This means that you will need to sit down with the defendant’s lawyer and answer questions about the accident and your personal injuries. The defendant’s lawyer will be able to ask you many private questions. They might even ask for contact information for people who know you well since they are potential witnesses at a trial.

      If your case goes to trial, then you will likely have to testify in a public courtroom about your injuries and other private issues if they are relevant to your injuries. The judge will render a decision that may be published in books and on websites. Other lawyers might write blog posts or articles about you. Your case might show up when people Google your name.

      Not all private information is relevant to your lawsuit. If it is irrelevant, and especially if it is private, then you probably don’t need to disclose it to the defendant or talk about it at a trial.

      If you are worried about needing to air embarrassing issues in order to start a lawsuit, talk to a lawyer about it. It is your lawyer’s job to protect private and irrelevant information from being released to the defendant or raised at trial.

      Since recent amendments to the Supreme Court Civil Rules in 2010, the law has been more vigilant in protecting injured people’s privacy. It is now more difficult for defendants to get access to your personal information.

      You should also be aware of private information that you’re already sharing. One of the first things I do when I take on a new client is Google the opposing party’s name. I look them up on Facebook. Check out their LinkedIn. It is incredible what you can find out about someone with nothing more than an Internet connection.

      Joseph Fearon is a civil litigation lawyer at Stevens Virgin practising in the areas of personal injury and commercial litigation. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

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