Civil Lawsuits & Privacy: What Activists Need to Know
Protecting Your Privacy When You Want to Sue the Government for Harming You
by Marianne Dugan, CLDC Senior Staff Attorney
Civil litigation is a useful tool in the activist toolbox—and like all the tools, it has pro’s and con’s that must be realistically assessed prior to deploying it. Being prepared – and fully understanding that your rights to privacy can be subject to different interpretations than you are accustomed to – is key to making it a stronger, more successful tool for social and political change. As part of CLDC’s commitment to educating activist communities as to how civil litigation works, how it benefits individuals and movements, and what potential risk factors exist, this article includes some further information and tips on how activists can both prepare to undertake these endeavors and minimize the potential for their private information becoming public through the course of the lawsuit.
Imagine the following familiar scenario; you’ve decided to head out to a rally or demonstration, either as a participant, a legal observer, or even a reporter. As you prepare, you remember to bring water, perhaps the jail support hotline number, a hat for the sun, and lots of other items that provide resilience against the elements you may encounter. What you’re probably not thinking about is, what if I’m harmed by the cops when I’m out there, and end up with a potential civil rights lawsuit to redress your injuries?
Although it’s not possible to prepare entirely for that complicated situation, there are some key steps you and your community can take when deciding whether to sue the government.
Most people who talk to an attorney about filing a lawsuit against the government (which includes cops of all stripes) are shocked to find out that being a plaintiff or victim of unlawful force or government misconduct can take away your right to keep certain things private. There’s an assumption that we have a right to privacy, that the government has no right to our innermost thoughts, our communications with our friends about how we are feeling, and so on. It’s also assumed that if we file a lawsuit because we are harmed by someone, we are the victim, and therefore those inherent privacy interests should be protected. Unfortunately, that is not the way the courts see it.
It is important to know that all of this is handled very differently in criminal cases. When the government prosecutes you for a crime, they are not allowed to dig into your private life (except to the extent they can locate information on social media or with warrants issued by a judge). In the criminal courts, you are not required to answer questions or turn over any information (unless you take the stand in your defense), because of the Fifth Amendment to the U.S. Constitution, which prohibits the government to make you “be compelled in any criminal case to be a witness against [your]self.” But in civil cases, where you are the one deciding to file in court, the courts see the situation quite differently.
The courts in the United States — both the state courts and the federal courts — have ruled that a person who decides to file a lawsuit has voluntarily given up their privacy rights to information that is relevant to their claims — with a few important exceptions.
Your discussions with your attorney(s) are almost always kept private or “privileged” from disclosure, as well as communications with your spouse. Note that this “spousal privilege” unfortunately does not apply to unmarried partners, despite the progress that has been made in other arenas for recognizing the validity of such relationships. So for the spousal privilege to apply, you have to have the government’s stamp of approval on your partnership.
Where civil lawsuits can get uncomfortable or even re-traumatizing for the victim is when the court orders you to turn over diaries, medical records for the same (or related) body part(s), mental health records, social media posts (even the “private” ones), emails, text messages, and anything else that is not “privileged” as noted above, if those documents relate in some way to the claims you are making.[1] So, if you claim in your lawsuit that because an officer beat you, you now suffer from severe emotional distress, it is likely the court will order that your life become an open book, because you have “voluntarily” put your emotional health at issue in the case. So, for example, in a lawsuit I litigated many years ago for a woman whose employer discriminated against her and then fired her, basically ruining her career, the court ordered that the defendant employer’s attorney was allowed to dig into the employee’s emotional state for many years back, and was allowed to take her psychologist’s deposition (the process of giving sworn evidence in a legal proceeding), and look at that counselor’s notes about the details of what the employee had discussed over the years.
I emphasized the word “severe” in that discussion, because we work hard to fight against such intrusive “discovery” when the lawsuit claims what the courts have called “garden-variety emotional distress.” If the injured or harmed person does not claim in their lawsuit that they have suffered emotional harm that is permanent or long-lasting, many judges will shut down abusively overbroad discovery about such things. This issue is a top priority for the CLDC and we have a long list of cases to cite to the judges, and have been successful in protecting our clients’ privacy rights in many such situations. We don’t want bully cop lawyers to deter people from seeking accountability for abuse by scaring them out suing bad cops.
Similarly, if a cop breaks your arm, you will have to reveal anything else that ever happened to that arm; if your head is slammed to the ground and you claim a head injury of any sort, the government attorneys will dig into any prior claims of injury to your head. Some attorneys will push even further, trying to get information about “head and neck” injuries, for example. We always push back and try to keep the disclosures limited to information that is clearly relevant to the current injury alone. [2]
We have also been successful in pushing back against the government attorneys’ outrageous requests that people turn over their entire cell phone or social media accounts. So, if you have filed a lawsuit and you receive such a request, it’s important not to become too freaked out. Even though the courts have required injured people to reveal very private information, most judges will not put up with such “overreach.”
However, if you were texting with someone (unless it was your spouse or attorney) while you were at a protest, or headed to a demonstration, or if you were live-streaming, the government attorney will argue to the judge that they are entitled to that data, and if the court believes it is at all relevant, you will be ordered to turn it over. You may also be forced to turn over contact information for any friends who may have been witnesses, even from afar (through texting), and then those people may be subpoenaed for a deposition to tell the government attorney what they observed or read.
If the information is very private (such as medical records), judges will usually require that the information be shared under a “protective order,” meaning that the defendant can’t share the information with anyone other than the people who are being sued and their attorneys and experts, and if the government attorney wants the court to look at that information, it must be filed “under seal” so that the general public cannot read it. But, most of our clients would rather have the “public” read their personal info rather than the State! Don’t forget that normally, anything filed in court is “public” meaning anyone can access and read it.
Another crucial point to understand is that, once you start thinking about suing someone, you must be careful not to get rid of any documents, photos, videos, texts, social media posts, or other information that could be relevant to the lawsuit — even if it is harmful to your case. The reason for this is that, if you do file suit, and you then disclose that you deleted information (or even got a new cell phone, losing access to old text messages), the court may rule that you “spoliated evidence,” and may take a variety of steps to “sanction” (punish) you for doing that.
It is not yet clear how the courts are going to rule regarding the use of automatically disappearing messages in apps such as Signal or Keybase. At this time, we’re not aware of that being prohibited, but keep your ears open since that is a developing issue in civil litigation.
One of the take-aways here is, if you are harmed by the government and contemplating filing a lawsuit, take a second when you are writing an email, a text, a social media post, taking photographs, and so on, and consider that you may have to turn over that information to the government. Even better, keep those considerations in mind when you are involved in some forms of activism generally; for example, if you livestream or video record during a protest, you may create evidence that could be helpful or unhelpful to someone who is harmed by the government. If you get contact information for someone who becomes a key witness in a civil lawsuit you file, you will have to turn that contact information over to the government’s attorney.
If you are physically injured, be careful with how you present that information to the world in social media. We represented someone who was significantly injured by a “less lethal” weapon, and in social media wrote that “t’is but a flesh wound” — a jocular reference to Monty Python and the Holy Grail, in which a knight makes that statement after his arm is cut off by another knight. The government attorney of course tried to imply that this person was therefore not really injured. Although we scoffed at that ridiculous attempt to downplay the injuries, this was a good example of an otherwise perfectly understandable communication with friends that would have perhaps made some jury members skeptical, if the case had gone to trial instead of settled.
The point of this blog is not to dissuade you from filing a civil rights suit against the government—a necessary way to hold the line on what cops are allowed to do or not do. Rather, we hope that by being grounded in this legal knowledge, activists and others will feel confident in their choice to fight back against injustices. The government doesn’t make it easy to fight back. However, at CLDC we believe suing cops, digging into the discovery about them and their policies, practices, and disciplinary histories, are a powerful and worthwhile tactic when you are well informed and well prepared. Knowledge is power. Assert your rights, we’ve got your back.
Footnotes:
- See CLDC’s document destruction and retention guide here.
- Under HIPAA, you have the right to review your medical records and make corrections if they are inaccurate (which they often are). Making sure your medical records are accurate will help smooth out potential bumps in your case. But you should know that anything you say to your medical professionals for the purposes of treatment may end up in a record that could be disclosed to the other side; so always clearly and accurately describe to your medical providers the full extent of pain or discomfort you are feeling.