What makes American litigation unique is the very powerful discovery tools available to any party in the litigation. The tools include sets of written questions that must be answered under oath (interrogatories) and demands for production of documents that must be delivered to opposing parties for copying. Even more powerful is the right to compel a party or witness to appear before a court reporter and answer questions that are recorded and may be used in court (depositions.) Such depositions are often videotaped.

No other nation allows such rights to a party and conflicts over what is appropriate discovery abound in our legal system. Most cases are won or lost in discovery and since over 90% of cases settle before trial, it is in discovery that most attorneys develop the evidence to convince a mediator, settlement judge, or the other parties to make appropriate offers of settlement.

One of the areas that can be in dispute is the right of a witness or party to preserve privacy rights in the midst of such discovery. Such a right does exist, and balancing those rights with the right of a party to seek discovery of relevant evidence is the scope of this article.


The Right to Privacy.

Federal courts in California have held that there is a right to privacy that can be raised in response to discovery requests.  Johnson by Johnson v. Thompson, 971 F.2d 1487, 1497 (10th Cir.1992); DeMasi v. Weiss, 669 F.2d 114, 119-120 (3rd Cir.1982).  The right to privacy in, “California primarily derives from the California Constitution's declaration that individuals have an inalienable right to privacy. Art. I § 1.”  Davis v. Leal (E.D. Cal. 1999) 43 F.Supp.2d 1102, 1110–11. 

This right to privacy is not the same as a privilege and is therefore, “not an absolute bar to discovery.”  Allen v. Woodford (E.D. Cal., Jan. 30, 2007, No. CVF051104OWWLJO) 2007 WL 309485, at *6–7.  By contrast, courts must balance the need for information against the claimed right to privacy.  Ragge v. MCA/Universal Studios (C.D.Ca.1995) 165 F.R.D. 601, 604 (right of privacy may be invaded for litigation purposes).  In other words, the right to privacy is not absolute and the courts will engage in a balancing test weighing the right to privacy against the right to reasonable discovery.

Under federal law, the right to privacy involves a balancing of interests.  “When the constitutional right of privacy is involved, ‘the party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.’  [Citations.]”  Artis v. Deere & Co. (N.D. Cal. 2011) 276 F.R.D. 348, 352. 

And “fishing” for evidence is not encouraged. “Compelled discovery within the realm of the right of privacy ‘cannot be justified solely on the ground that it may lead to relevant information.’  [Citations.]  ‘Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a ‘careful balancing’ of the ‘compelling public need’ for discovery against the ‘fundamental right of privacy.’”  Id.  Courts have employed the following considerations when balancing the parties’ interest:

  1. The burden to demonstrate the validity, or conversely, the invalidity of the privacy privilege, is hybrid. Where there is no doubt that the information requested implicates traditional notions of what is private information, such as associational records, the burden is on the requesting party to demonstrate that the information is directly relevant to the case, and that the information needs of the case outweigh the need for non-disclosure. Britt v. Superior Court, 20 Cal.3d 844, 859, 143 Cal.Rptr. 695, 704, 574 P.2d 766 (1978). 


  1. However, where the privileged status of the information is unclear or doubtful, such as publicly known business contracts, the party asserting the privilege has the initial burden to establish that the information is encompassed within the privacy (or any) privilege. Gonzalez v. Superior Court, 33 Cal.App.4th 1539, 1550, 39 Cal.Rptr.2d 896, 902 (1995). Only then would any burden shift to the requesting party. Davis v. Leal (E.D. Cal. 1999) 43 F.Supp.2d 1102, 1110–11.


  1. In determining what information is protected by the privacy interest, courts have found that Information and documents which implicate private financial information are of the type that have been declared presumptively privileged.  The court utilizes the term “financial privacy” broadly and encompasses within that term not only bank records, but also documents generated in one's business affairs, e.g., contracts, business records and the like that have not received widespread dissemination, or have not been publicly filed.


  1. Court have also found that sexual privacy is an accepted privacy right under the California Constitution.  Fults v. Superior Court In and For Sonoma County (1979) 88 Cal.App.3d, 899, 152 Cal.Rptr. 210; see also Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (finding a similar right to sexual privacy under the United States Constitution).



Powers of the Court.

The parties may seek a protective order under Federal Rules of Civil Procedure, rule 26, subdivision (c) in order to protect the relevant privacy interest.  Federal Rules of Civil Procedure, rule 26, subdivision (c) states that the court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including:

1.         Prohibiting disclosure or discovery;

2.         Conditioning disclosure or discovery on specified terms, “including a designation of the time or the place”;

3.         Permitting discovery be had by a method other than selected by the party seeking discovery; or

4.         Limiting the scope of disclosure or discovery to certain matters.


California courts have roughly the same tools available to them if a party in State court seeks a protective order.

Both Federal and State court mandate that the parties meet and confer to agree upon appropriate and reasonable steps to allow discovery while balancing the rights to privacy. Only if the parties cannot achieve a negotiated method will the court step in to impose it upon motion of the party.



While parties are subject to discovery, they have rights to privacy that will be considered and protected by the courts in a balancing test. This has become particularly relevant in the days of e mails and social media where parties are prone to have personal items intermixed with business communications.