Whereas placing collectively our latest Camp Lejeune submit on deliberative course of privilege, we got here throughout one other discovery dispute that we’ve seen in prescription medical product legal responsibility mass tort litigation – plaintiffs refusing to supply their social safety numbers.  So we determined to check out what’s on the market.  We discovered that “Courts have routinely ordered plaintiffs to reveal their social safety numbers when that data has some relevance to a declare, or protection, within the litigation.”  Karn v. PTS of America, LLC, 2021 WL 307412, at *5 (D. Md. Jan. 29, 2021).

In In re Camp Lejeune Water Litigation, 2023 WL 8824494 (E.D.N.C. Dec. 21, 2023), plaintiffs in over 1,000 lawsuits refused to produce both their birthdates or social safety numbers (“SS#”).  The plain purpose was to forestall defendants from conducting any unbiased investigation, notably into the plaintiffs’ medical histories – although by submitting go well with that they had positioned medical historical past at situation, thereby waiving any privilege.  Camp Lejeune held that each birthdates and SS#s had been topic to instant disclosure underneath Fed. R. Civ. P. (a)(1)(A)(i), although not particularly listed, as a result of it was “fundamental data” essential to “the odd course of investigating every grievance.”  2023 WL 8824494, at *2 (quotation and citation marks omitted).  “[I]t [wa]s undeniably harder for Defendant to decide on consultant ailments and plaintiffs if they can’t acquire information for nearly 90% of [the] plaintiffs” that had failed to offer this data voluntarily.  Id. at *3.  All plaintiffs submitting a brief type grievance had been “eligible for discovery” and subsequently required to product this data.  Id.

Within the class, quite than mass, motion contest, all opt-in plaintiffs in Rodriguez v. Niagara Cleansing Companies, Inc., 2010 WL 2573974 (S.D. Fla. June 24, 2010), had been required to supply their SS#s to the defendant.  Id. at *4.  The category motion opt-in types had been court docket ordered and consented-to by plaintiffs’ counsel.  Id.  “Accordingly, the Plaintiffs might not unilaterally alter the Court docket’s Order by redacting parts of the Consent to Be part of Kind.”  Id.

In Hinkle v. Continental Motors, Inc., 2018 WL 100965911 (M.D. Fla. April 18, 2018), the court docket ordered private damage plaintiffs to show their SS#s over to the defendant.

[T]hey have refused with none good purpose.  Clearly, Plaintiffs ought to have disclosed this and will likely be required to take action.  To safeguard the Plaintiffs’ private identification data, a protecting order is suitable.

Id. at *1. (quotation omitted).  Hinkle adopted Gober v. Metropolis of Leesburg, 197 F.R.D. 519 (M.D. Fla. 2000).  Gober rejected the proposition {that a} plaintiff’s SS# was privileged from discovery:

Plaintiff has not recognized a privilege that seems to be acknowledged underneath [applicable] regulation.  Subsequently, to the extent that Plaintiff’s objection to the deposition query relies on a “monetary privilege,” [it] is because of be overruled and Plaintiff is ordered to reveal the requested data. . . .  Plaintiff’s social safety quantity, is related and is fairly calculated to result in the invention of admissible proof.

Id. at 520-21.  See Id. at 522 (imposing sanctions as a result of “the Plaintiff’s social safety quantity isn’t privileged data and could also be calculated to result in the invention of admissible proof”).

Equally, Breslin v. Dickinson Township, 2011 WL 1577840 (Magazine. M.D. Pa. April 26, 2011), the plaintiffs couldn’t withhold their SS# in an effort to stymie the defendant’s investigation of their medical histories.

Defendants are entitled to acquire the Plaintiffs’ Social Safety numbers. . . .  [Defendants] search this data with a purpose to acquire medical and army information from third events.  These information would comprise data related to the Plaintiffs’ damages claims, . . . since these information would offer medical histories of the Plaintiffs, medical histories which might reveal the extent to which they’ve suffered bodily or emotional misery.

Thus, these medical information have apparent relevance to any damages claims introduced by the Plaintiffs which can be premised upon bodily or emotional misery allegedly attributable to the Defendants’ conduct.  Subsequently, securing the Social Safety account data that’s needed for acquiring these medical information from third events is clearly a related inquiry underneath Rule 26 of the Federal Guidelines of Civil Process.

Id. at *5.  See Katz v. Nationwide Board of Medical Examiners, 2016 WL 2744823, at *2 (Magazine. M.D. Pa. Might 10, 2016) (“reference to [SS#s] is a needed aspect of a third-party subpoena for institutional information regarding a person comparable to these sought by the defendants”).

The plaintiff in Heuskin v. D&E Transport, LLC, 2020 WL 1450575 (Magazine. D.N.M. March 25, 2020), failed to incorporate his SS# in a launch of medical information, thereby stopping the defendant from retrieving any information.  Id. at *9.  Plaintiff claimed this was a mistake, however had not produced the data, so a movement to compel was granted.  Id.  Likewise, in Marks v. U.S. Safety. Associates, Inc., 2008 WL 11337996 (N.D. Ala. Dec. 19, 2008), the plaintiff was compelled to supply her SS#, “offered that the events agree on a protecting order.”  Id. at *2.  Accord Archer v. Metropolis of Winter Haven, 2017 WL 3840435, at *5 (M.D. Fla. Sept. 1, 2017); Love v. Fairfield Inn & Suites by Marriott, 2011 WL 6012970, at *2 n.15 (S.D. Miss. Dec. 1, 2011); Saunders v. Knight, 2007 WL 1287901, at *2 (E.D. Cal. April 30, 2007); Jones v. J.C. Penney’s Dept. Shops, Inc., 228 F.R.D. 190, 197 n.13 (W.D.N.Y. 2005); Goodman v. Metropolis of New York, 2004 WL 1661105 *2 (S.D.N.Y. July 23, 2004); Elkins v. Broome, 2004 WL 3249257, at *2 (M.D.N.C. Jan. 12, 2004), aff’d, 122 F. Appx. 40 (4th Cir. 2005); Magedson v. Fina, 1993 WL 35261, at *4 (N.D.N.Y. Feb. 10, 1993) (all requiring plaintiffs to disclose SS#s, topic to acceptable confidentiality protections).

A plaintiff’s continued failure to adjust to SS# discovery may end up in dismissal of the motion as a sanction.  In Taylor v. Costco Wholesale Corp., 2020 WL 1271579 (D. Nev. March 17, 2020), aff’d, 2021 WL 3721800 (ninth Cir. Aug. 23, 2021), the plaintiff was ordered to reveal her SS# however repeatedly refused to conform.  Id. at *1.  Plaintiff’s failure “render[ed] it almost not possible for [the] case to proceed, as a result of with out this proof, Plaintiff will likely be unable to show her damages, and conversely, Defendant will likely be unable to correctly defend itself.”  Id.  Accordingly, plaintiff suffered dismissal, id. at *2, and the dismissal was affirmed on attraction.  Accord Vickers v. Mt. Morris Township Police Dept., 2022 WL 4820423, at *3 (Magazine. E.D. Mich. Aug. 17, 2022) (plaintiff’s refusal to reveal SS# required dismissal), adopted, 2022 WL 4715589 (E.D. Mich. Sept. 30, 2022).

Way more usually litigated are circumstances the place plaintiffs search SS# data from defendants, normally for current or former staff who could be witnesses or putative class members.  As a result of non-parties have not positioned waived any privateness rights by commencing litigation, “courts are reluctant to order the disclosure of a witness’ social safety quantity.”  Olson v. Lowe’s Residence Facilities, LLC, 2024 WL 25089, at *3 (Magazine. W.D. Ky. Jan. 2, 2024) (footnote omitted).  “Within the case of non-parties, as a result of people have a robust privateness curiosity of their Social Safety numbers, such numbers ought to typically not be disclosed absent a exhibiting of particularized want.”  Karn, 2021 WL 307412, at *5.  Thus, courts “have repeatedly declined to compel manufacturing of social safety numbers absent an indication by the plaintiff ‘with specificity’ that such delicate data is critical.”  Ramirez v. Liberty One Group LLC, 2023 WL 4541129, at *9 (S.D.N.Y. July 14, 2023) (quotation omitted).

Any suggestion that social safety numbers are routinely discoverable as ‘background data,’ is not right, if certainly it ever was” as a result of . . . “the scope of discovery licensed by Rule 26 (with no court docket order) has extra not too long ago been narrowed, and the emergence of identification theft as [a] main downside has led to heightened consciousness of the necessity to take care of social safety numbers with better care.”

Natkin v. American Osteopathic Assn., 2022 WL 19914189, at *4 (Magazine. D. Or. Might 11, 2022) (refusing to use Gober to discovery sought from a defendant), adopted in pertinent half, 2022 WL 3974536 (D. Or. Sept. 1, 2022) (quoting Bacchus v. Benson, 2007 WL 9736176, at *2 (N.D. Fla. Nov. 29, 2007)).

Witness SS#s are solely discoverable when the requestor has demonstrated their necessity by precise unsuccessful makes an attempt to contact such people, after which solely underneath strict confidentiality necessities.  Id.; see Vilella v. Pup Tradition LLC, 2023 WL 7986562, at *10 (S.D.N.Y. Nov. 17, 2023) (Plaintiff “has not proven that the contact data . . ., is inadequate to effectuate discover”) (quotation and citation marks omitted); EEOC v. McCormick & Schmick’s Seafood Eating places, 2012 WL 2577795, at *3 (Magazine. D. Md. July 2, 2012) (“social safety numbers are non-public and may solely be launched on a exhibiting of relevancy and true want for the data.”); Tate v. USPS, 2007 WL 521848, at *3 (Magazine. S.D. Fla. Feb. 14, 2007) (plaintiff not entitled to SS# except exhibiting precise “issue finding a witness”).

Thus, there’s loads of obtainable authority that non-public damage plaintiffs should present their SS#s throughout discovery.  Nevertheless, Camp Lejeune seems to be the primary time the problem has been litigated within the mass tort context.