The Importance of Protecting the Confidentiality of Information Found in Discovery
By Evangelina M.
Discovery is the formal fact-gathering process in civil litigation and criminal cases. Discovery of materials pertinent to a case can include information like a defendant’s factual basis for claims, the identity and location of witnesses, as well as formal documents and records pertaining to the defendant’s claims.1 Discovery is designed to facilitate the finding of information relevant to both the defendant’s and the plaintiff’s case. Learning about discovery has prompted me to ask the following question: Under what context does a party need to uphold the confidentiality of information found during discovery (e.g., a witness’s identity or address)?
To help contextualize this question I will provide information about a sanction recently issued as a result of not protecting the confidentiality of discovery materials. Danny Masterson, most famously known for playing Hyde in That 70’s Show, was recently sentenced to 30 years to life in prison for the rape of two women between 2001 and 2003.2 Relevant to our discussion, two of Masterson’s former attorneys, Thomas Mesereau and Sharon Applebaum, were sanctioned (fined $950.00) for providing materials obtained during the discovery process to the Church of Scientology.3 This discovery material consisted of over 500 pages of sensitive information including police reports and the addresses of the women Masterson was convicted of raping.4 During the trial, Judge Charlaine Olmedo was especially vigilant in informing the defense not to provide any discovery material to any of the parties in a parallel civil case concerning Masterson’s victims accusing the Church of Scientology of harassment.5 According to prosecutors, several of the women said it took them years to come forward because the Church of Scientology discouraged them from reporting the rape to the police.6
Olmedo ruled that Masterson’s former attorneys violated a court order and Marsy’s Law protections when they provided discovery material to the Church of Scientology.7 Marsy’s Law protects victims against the sharing of their personal information.8 With the information outlined above, I ask you the following question: What information found during discovery do you think should have an inherent right to confidentiality outside of the courtroom?
Trying to think like a lawyer or member of a legislative body, I came up with: "No information used during discovery in a case may be released if it risks the privacy, health, safety, or wellbeing of anyone involved in that case." Learning to paint with broad strokes with language has been valuable, because if I tried to make a list of specific types of information that should not be allowed to be released, I would have a very long list and inevitably miss something. Regarding this case against Masterson, it sounds as though you imply the Church of Scientology is at fault as well, and the victims of sexual assault may also be able to claim injury against the Church. Whether this is true or not, you just got yourself on a list out there somewhere for writing this blog post.
ReplyDeleteI definitely did not mean to imply that the Church of Scientology is at fault for Masterson’s crimes, but they definitely are at fault for possessing confidential materials that aid in their defense in the going civil case involving Masterson's victims (in my opinion). Thomas Mesereau and Sharon Applebaum provided sensitive material to the Church after they were specifically not to under a court order, for that reason I think the Church of Scientology should be held accountable.
DeleteMaintaining the confidentiality of certain discovery information is crucial not only for the integrity of the legal process but also for the protection of individuals involved. Personal information such as survivors' addresses, phone numbers, information of minors and other family members, and personal health information should unquestionably have an inherent right to confidentiality outside the courtroom (in my opinion). Also, 500 pages of sensitive information and only a $950 fine seems disproportionately lenient...
ReplyDeleteI agree that the sanction of $950.00 was disproportionately lenient especially since the information leaked was so personal. The information provided to the Church of Scientology included police reports, banking information, emails, and addresses. Even in a case that didn’t involve accused harrasment and rape, the release of such sensitive informtation should be sanctioned heavily.
DeleteFirst I can't imagine what would posses the attorneys to share information with the Church of Scientology. It seems highly unethical and deserves more than just a fine.
ReplyDeleteWhen you go to trial it seems like all sorts of unsavory and personal information is generally brought up to destroy credibility, or to make a case. That being said, I do think personal information such as addresses, and other sensitive material not relevant to the case should be prohibited from being disclosed. I'm curious now if there are guidelines about what is absolutely not fair game to be shared.
I was also very curious about what orders or statutes are in place to protect the confidentiality of information found during discovery. From my research, I didn’t find any overarching statutes that would apply to the courts as a whole. It appears that courts have the ability to make orders regarding confidentiality on a case by case basis.
DeleteIf my memory serves me correctly, there are certain things that you have to give up to join a practicing branch of Scientologists. Beyond signing a "billion year" contract with the core leadership group, Sea Org, you have to undergo constant "audits" that are more intensive than the confessionals seen in Christian faiths. Simply put--take all you fear about "Big Brother" and mix it with Buddhist practices, and you get Scientology. Would jokingly imply that it's just one hive-mind away from being a real life version of the Borg...but want to respect people's freedom to practice (or not practice) their spiritual beliefs so long as no human sacrifices are involved.
DeleteGreat job, Evangelina. This is such an interesting topic in the "information age." We're able to have access to so much information, that there's often a sense of entitlement to information. It's important to ask questions like this and to remember our humanity.
ReplyDeleteIn healthcare, maintaining patient confidentiality is a huge part of my job. The laws I have to abide by include managing patient privacy from multiple angles and situations. Annual training classes are required in order to properly protect patient information. The rules I follow include how I send emails, how I lead weekly Zoom meetings, how I conduct phone calls, how I interact with other healthcare facilities, and even how I interact with patients outside the hospital.
Simple practices can go far in helping to preserve confidentiality. Something as simple as documenting a certain altered way or restricting access to specific documentation without authorization can make a big difference.
6 years ago, a University of Utah nurse was arrested after she refused to give the blood sample from a patient to Salt Lake City police officer. (link w/ video listed below)
I'm inclined to err on the side of all information being private unless there is a compelling reason to share it, or permission has been granted.
In the example you shared, why were the addresses or personal information about the victims shared at all? Those victims have the right to privacy.
I think that any protections or limitation to information should not protect criminals, but should offer complete protection to victims. If evidence of a crime is found on discovery, that should be able to be shared and pursued. Addresses are irrelevant.
In healthcare, the patient has the right to share any information they choose, while healthcare professionals are highly restricted in their access to or ability to share information.
With as much effort as is spent on patient privacy within healthcare, it makes sense that there should be attention spent on that same protection in legal matters.
https://www.sltrib.com/news/2017/10/31/utah-nurse-arrested-for-blocking-cop-from-drawing-blood-from-patient-receives-500000-settlement/
To clarify: It was determined that the U of U nurse was arrested IMPROPERLY and later won a lawsuit against the city of Salt Lake.
DeleteI remember seeing on the news that video of the nurse being arrested! As unfortunate as that situation was, I am proud that nurse took her responsibility to protect confidential information seriously. Thank you for sharing your experience with protecting patient information at work.
DeleteTo answer your question, the addresses and personal information of the victims were unrightfully shared by Mastersons attorneys. By sharing this information the attorneys broke a court order and protections under Marsy’s Law which provides protection to the victim of crimes in the state of California.
To answer that question, I have to say that identities including information that could tip off their identities should be kept confidential until all cases civil/criminal in all jurisdictions and sovereigns have been finalized.
ReplyDeleteThis brings back memories of DCFS and my undergrad. The Sixth A. guarantees the accused to face their accusers. I wondered how a child victim would testify against an adult perpetrator. When I became a child abuse investigator I found out that even with a child forensic interview an attorney and judge could compel them to take the stand. The older the minor the more likely that could happen. It usually never happens for younger victims. When it's a small town it can be extremely hard for the victim.
https://www.ksl.com/article/46456349/charges-cedar-city-restaurant-manager-raped-17-year-old-employee
As far as religion goes, I used to be Catholic. I used to be for obvious reasons. There was a case where a victim did not want to press charges despite her interview being compelling to the detective and myself. The alleged perpetrator was a gang member and she feared what he might do to her family. I was upset, but I understood and respected her decision. On the other hand there were other cases where victims here in Utah were pressured by their family and clergy to say anything because the alleged perp was from a good family, a good boy, he was going on a mission, the church was taking care of it. I could never understand that, especially, when I could see that the victim wanted/needed to say something.
Wow, it is hard to believe that a child can be compelled to take the stand when testifying against their abuser. That must place so much undue burden on their ability to heal from the abuse they experienced. Your personal experience working with victims makes me realize even more how important it is to protect their identity and personal information from the public and their perpetrators.
DeleteThis conversation is taking me back to a philosophy class from my undergrad where we discussed what privacy is within the law. Because there isn't really anywhere in the law that says that everyone has a right to privacy and defines what is private, it's hard to pin down exactly where that line is. This lack of clear definition reminds me of what Supreme Court Justice Potter said about pornography: "I know it when I see it."
ReplyDeleteTo answer the question you posed, I think personal records, health information, and information about minors is a good place to start when it comes to confidentiality. However, I think- because of the lack of clear definitions of privacy in the law- there's a lot of leeway in this issue for judges to decide on a case to case basis what is confidential and private and what isn't.
I think that any type of discoverable information should be used to support cases' claim/defenses only during trial, and the category needs to be carefully classified. Like what type of information is appropriate to collect and what is not. Personally, I absolutely hate disclosing anything related to my personal information to random people. And certainly don't want to my mouth closed when I want to do a lawsuit against someone if the prosecutor tries to get into my private information too much.
ReplyDeleteI guess it all depends on the case situation, but personally I don't see a reason how addresses, medical records, personal life, and even social security numbers can be useful for a lawsuit.
I definitely understand why police reports, medical records, addresses, and personal information were obtained in the Masterson case. The prosecution and defense needed sufficient evidence to plead their cases in an effective way, or in a way that wouldn’t result in a mistrial like it had previously. But, I do think we need solid statutes in place to protect the information that is found during discovery and presented at trial.
DeleteWorking for big law firms, usually during discovery we reach a point where we go "okay, bury them." Conference rooms end up being devoted for all of the boxes of discovery material they provide and when it's that large, things can be missed. I don't want to say that this was the case especially since I don't know how much was provided, but to me it seems that someone was not good at redacting. I've had attorneys who when they were provided with something in discovery we weren't supposed to see, notified the court and the opposing side and they didn't use it against them.
ReplyDeleteTo your question, I think all personal information (names, addresses, SSN) should always remain private - especially in cases re rape. Let the victims come forward after the case if they so chose, but don't force them to become the spotlight.
Fun fact (as an FYI, I'm agnostic to religious practice)--there's been a lot of controversy over the use of basic fMRI scans in communities that primarily practice Islam because they view it as an invasion of one's privacy. To my knowledge, the Qur'an is the only religious text to fully explicate the rights of believers to privacy while also establishing social norms for non-invasive action. Plenty online that will tell you as much (not going to force religious text on people if they don't want to read it). Mostly note that because I don't see similar text in the LDS version of the Bible and extended doctrine.
ReplyDeleteNot going to say that it's legal to perform a criminal act and store the evidence in such a manner that people would need your permission to access it. I will say, however, that there is no possible way for you to go your entire life without inviting a breach of confidence. Because we need to have faith that our rights and wellbeing will be protected, we necessarily cede some of our innate rights to respect the confidence of someone who would perform acts that disrupt public order by virtue of the social contract. If I can't trust that the person performing human sacrifices is judged under the full force of the law after their spose discovers them in action, I necessarily cannot trust that the system has the authority to grant me protections in return for the obligatory acts I perform. Not quite the same as the overturning of Roe v Wade--which brings into question whether the Federal government actually has the interests of women's health in any sort of regard--but more that our social system can't exist if public trust in the system is fully lost.
Hence, I'm of the mind that you should only be obliged to provide information if it is either in your best interest to prove innocence or as the result of a court order that finds the circumstantial legal claim valid enough to justify an investigation into one's innocence.
Great Blog Evangelina. Rape is such a trigger word. Bring in Hollywood, the Church of Scientology, a television sitcom, and famous folks like Danny Masterson, and all I think of is publicity and it feels like a true crime series on television. Does that mean that just because there are forces in the background such as money, power, and fame, should rape victims have their information shared? No. Also, what is with the $950 fine, is that a statutory fine, and if so, why wouldn't the lawyers give the Church of Scientology the evidence?
ReplyDeleteDoes the limited fine suggest a weakness in our legal system or an inherent risk of no right to privacy, was this found in your research? I couldn't find anything.
What a great topic and post! First, I am really struggling with the $950 fine for the attorneys, that is a slap in the face to those two victims. Second, when it comes to preserving confidential information, especially in a rape case. Attorneys, regardless of who they represent are officers of the court and as such have an absolute duty to uphold and preserve confidential information of the parties they formally represent and those who are connected to a case.
ReplyDeleteFinally, when it comes to the confidentiality, including the identities of the most vulnerable victims this case makes me physically sick to my stomach. If you are not aware of the statistics behind rape cases they are astounding. According to an analysis by the justice department, out of every 100 rapes, 31% are reported. Of those 31% of reported rapes 5.7% result in an arrest. Of the 5.7% that are arrested 1.1% are referred for prosecution. Of the 1.1% referred for prosecution 0.7% result in a felony conviction. Of the 0.7% that are convicted 0.6% are incarcerated. (Figures from 2010-2014)
Disclosure of personal information on the identity of a victim of rape by an officer of the court should result in more than a fine. It is unconscionable that a member of the legal community would betray the trust of not just these two women, but they did so to every future victim who is too scared to report, who is courageous enough to report, and for all those who will never see justice.
Great post and great comments! We could spend the entirely of our Saturday class discussing this post and the issues raised. However, due to limited time, I will only have a few brief comments on a select few of the issues raised.
ReplyDelete