They are saying that in California everyone’s a star.  Or perhaps, in immediately’s phrases, everyone’s an influencer, has social media, a weblog, or—on this case—an autobiography.  Right this moment we focus on a discovery dispute in a California federal court docket that’s considerably distinctive, however that raises points we see each day in drug and system circumstances. 

The choice, Cooley v. C.R. Bard, Inc., 2024 WL 291339 (S.D. Cal. Jan. 25, 2024), arises from using an IVC filter.  In her deposition, Plaintiff revealed that she had written about her IVC filter in her draft, unpublished autobiography.  Like all good lawyer would, protection counsel requested plaintiff to supply the autobiography (they initially sought the entire thing, then scaled it again to the parts overlaying the scope of medical information discovery).  What they obtained again was a less-than-impressive three-page excerpt of the 258-page draft.  Plaintiff mentioned that this was ample as a result of these three pages have been the one ones that “point out or confer with the Bard IVC Filter.”  Id. *1.  A movement ensued. Plaintiff asserted three objections to any additional manufacturing:  (1) relevance, (2) proportionality, and (3) attorney-client privilege.  The court docket rejected the primary two objections and appears able to reject the third.

First, the court docket held the proof was related.  In drug and system circumstances, we often encounter plaintiffs who allege that the product impacted their enjoyment of life whereas additionally resisting discovery about their private lives.  The court docket accurately understood {that a} plaintiff claiming his or her “life has been negatively impacted” opens up discovery on the state of that individual’s life. 

A part of her technique of exhibiting the allegedly unfavorable impacts on her life has been to testify that, post-fracture, she will be able to not do the issues in life that introduced her pleasure, at the very least in some respects. Thus, depictions of plaintiff’s life, similar to these prone to be contained in an autobiography, are related as a result of they might rebut or bolster her claims about her limitations and the extent of her accidents.

Id.  This reasoning would apply equally to a case involving any form of social media posts. The place a plaintiff claims an impression on his or her life, defendants are entitled to discovery about his or her life actions.

The court docket additionally rejected any proportionality concern.  Given the allegations within the lawsuit, “damages and the alleged limitations on plaintiff’s life-style” could be the dominant points at trial, and defendant had no different technique to entry the data apart from by plaintiff.  Id. *2.  Nor would it not be pricey or troublesome to supply.  Plaintiff additionally argued that there have been privateness considerations with the manufacturing—citing not simply her expectation of privateness, but additionally that of third events she named within the autobiography.  The court docket was not persuaded by this argument, partially as a result of plaintiff had already shared her autobiography with different individuals.  Every other privateness considerations may very well be addressed by the protecting order already in place within the case.

Lastly, the court docket addressed privilege.  To help her argument, Plaintiff offered redacted pages referring to an legal professional.  Though Plaintiff argued that this referred to an attorney-client privileged communication, the court docket famous that (1) arguments of counsel are usually not proof and (2) Plaintiff didn’t submit any precise proof that confirmed privileged communication.  The court docket didn’t know what the substance of the redactions within the autobiography even have been.  The court docket gave the plaintiff a second chew on the apple to meet-and-confer and current proof of attorney-client privileged communication for in digicam assessment.  However the court docket additionally famous that Plaintiff had severe waiver considerations.  Plaintiff already testified that she shared drafts of her autobiography with “a few individuals,” so if she confirmed them the redacted parts, she shouldn’t have a lot hope at avoiding waiver of any declare of privilege.  The court docket ordered Plaintiff to determine the individuals to whom she disclosed her draft autobiography, the dates of the disclosure, and whether or not the parts contained the redacted sentence. We’ll see how the Courtroom finally guidelines, however it’s actually holding Plaintiff to her burden to ascertain privilege.

Not all plaintiffs may have written an autobiography, however this case supplies a pleasant reminder that the place plaintiffs place their enjoyment of life at problem, that features their total life—not simply the elements plaintiffs need to share.