CaliforniaIt is no secret that a personal injury plaintiff's medical and employment records can reveal critical information about his or her claims. Most of the time, these records contain information that plaintiffs actually want defendants to see. But what about other information plaintiffs may prefer to keep hidden? Are there other types of records defendants should consider obtaining that may shed light on a plaintiff's case? In short, the answer is yes.

SocialSecurityAdminLogoDefendants should explore whether records exist pertaining to a plaintiff from organizations such as the Employment Development Department, the Department of Social Services, or the Social Security Administration. Records from these types of entities may contain information not only relating to a plaintiff's alleged injuries, but may reference pre-existing conditions, prior claims, and admissions by plaintiffs or other witnesses supporting a statute of limitations defense, all of which may be relevant to the lawsuit at issue and can be used to reduce or even eliminate a defendant's liability.

One avenue by which defendants may obtain these types of records is directly from the record holders via records subpoenas. An obstacle to subpoenaing records directly from the record holders is that the record holders often require an authorization signed by plaintiff to release the records. Indeed, the record holders typically respond to such subpoenas by refusing to produce the records without an authorization signed by plaintiff, citing to state and federal privacy laws. Plaintiffs, in turn, regularly refuse to sign these authorizations based on their right to privacy.

Nonetheless, defendants maintain that records pertaining to these claims are discoverable. In order to resolve these disputes, assuming informal meet and confer efforts are unsuccessful, defendants may seek judicial intervention in the form of a motion to compel the record holders to comply with defendants' subpoenas and/or a motion to compel plaintiff to sign the applicable authorizations, depending on whether defendants are attempting to obtain records from a state or federal agency. For example, only a federal court can issue a binding order to a federal agency, such as the Social Security Administration. In doing so, defendants rely on a body of California law standing for the proposition that by filing a personal injury lawsuit, a plaintiff places the issue of his or current alleged injuries and past medical history squarely at issue, and such records often contain information relevant to such injuries. As a result, defendants argue that an objection on the basis of a plaintiff's right to privacy is overcome by a defendant's right to obtain relevant information in connection with plaintiff's claims.

The rulings on any such motions brought about by the record holders' objections or plaintiff's objections vary both by judge and jurisdiction. Regardless, defendants should continue to think beyond current medical or employment records and look to these other types of organizations when investigating a plaintiff's claims as such information can be valuable to the defense.


Dee Cohen KatzSadaf A. NajatFeel free to contact the authors with any questions:  

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Sadaf A. Nejat at
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