Utah Court Rules – Published for Comment
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Posted: October 9, 2011
URCP 026.02 Disclosures in personal injury actions. New. Described special disclosures in personal injury actions.
URCP 083. Vexatious litigants. New. Establishes the standards and procedures for declaring a person to be a vexatious litigant. Establishes management of cases involving vexatious litigants.
1. I think the Supreme Court should take a hard look at the constitutionality of the “pre-filing order” concept. We all know people we would like this applied to, but I’m not sure that it would pass the constitutionality test as now written.
2. The term “prefiling order” should be defined in section (a). I had to read the whole rule before I could figure out what it was.
CJA04-0202.02.pdf
Your amendments to make certain records non-public fails to assign that designation to a class of records that are confidential as a matter of federal law and state law — education records —- but which do sometimes wind their way into court files in given cases, including when parents use the state administrative and/or appeal process under 20 USC 1415.
Further all medical records should be in the non-public category even when they are used as exhibits in a particular case. No one should forfeit their privacy as a condition of access to the court.
URCrP004
This is completely unfair to defendants as it allows prosecutors to avoid their obligation to give notice of the charges. Inherently it affects the substantive rights of defendants (since decisions are made by families all the time about posting bail and obtaining private counsel based on the nature of the charges. Further, this is coercive in nature because it discourages thoughtful consideration of pleas (and even factually compels defendants to plead early when it may be impossible to have effective counsel). It also gives prosecutors multiple opportunities to charge which while not technically violating double jeopardy, certainly violates the purpose of it by forcing a defendant to come back and back to answer for the same facts or incident. Since prosecutors tend to overcharge cases anyway (particularly when the lesser includeds do fit the facts), this rule will mean that more innocent people will be found guilty after a prosecutor goes looking for something that will stick because they don’t like a particular defendant. This amendment should not pass because it eliminates the fairness of the required notice and speedy trial.
PS. I tried several times to find this box on the comment section of the URCrP 4, but it never appeared there. So I used a comment section without comments.
I would like to know where this proposed rule originated. Who is responsible for pushing this rule? Setting a limit of five unsuccessful cases within five years is arbitrary and is very unfair esp. to people who actually have a need to litigate such as builders, lenders and constitutionalists.
These constraints and restrictions are very onerous. Why aren’t lawyers subject to the same constraints? Labeling lawyers as vexatious litigants might actually result in a broad public benefit.
What does the phrase “have been finally determined against the person” means? What if they dismiss at the last minute after having run someone through the ringer for two years? Are they off the hook?
I think this is a really bad rule which is poorly drafted and which is designed to force people to hire lawyers instead of exercising their constitutional rights to litigate and have access to the courts.
We all need to know who proposed this rule in order to fairly evaluate whether it has merit. Anonymous rule enactment is dangerous. People and groups seeking to abuse the public through court rules need to be identified.
I think we all know that tax protester types will be the primary victims of this rule.
Rule 83 (a)(1)(A) attempts an entirely objetive standard which may result in unfair determinations for persons (or organizations treated as persons) such as banks, property rental managers, “pay day” small lenders, pawn shops, collection agencies, or others who must frequently litigate. Their record may show that perhaps out of hundreds of suits, that they lost only 5 cases in 7 years. This should not result in a determination that these litigants are “vexatious”
The current text reads:
“In the immediately preceding seven years, the person has filed at least five claims for relief, other than small claims actions, that have been finally determined against the person.”
I would recommend deleting (a)(1)(A), or perhaps should be edited to include to the effect,
“and has not in the immediately preceding seven years filed an equal or greater number of claims, other than small claim actions, that have been finaly determined in favor of the person.
In other words, a record of 5 wins 5 losses, might still be vexatious, but only if one of the other situations in the remaining clauses exists.
I am in favor of the proposed Rule 26.02. It would expedite personal injury cases, especially automobile accident litigation. These proposed disclosures would expedite discovery as parties would not have to use their few interrogatories and requests for production to obtain basic information about the injury claims. The disclosure requirements proposed are very similar to the requirements for Uninsured and Underinsured Motorist claim arbitrations under 31A-22-305 and -305.3. These basic disclosures are relevant to every personal injury action. By including these among the required initial disclosures, the parties can consider settlement possibilities quickly. Discovery will then proceed on issues particular to the case. This will prevent parties from having to issue interrogatories for basic information common to every personal injury action.
URCP 026.02(b)(3) should not be adopted. The rule requires the plaintiff to give his/her social security number or HICN number prior to resolution. There are several reasons this disclosure should not be required.
1) The federal statute does not require disclosure prior to trial or settlement. Section 111 of the MMSEA reads, “TIMING- Information shall be submitted under subparagraph (A)(ii) within a time specified by the Secretary after the claim is resolved through a settlement, judgment, award, or other payment.” Both cases cited in the comment admit as much. The Seger court stated, “[a]lthough the Extension Act does not require this information be submitted to CMS until after a final settlement or judgment is issued, there is no harm to the plaintiffs in providing the information sooner.” The Hackley case involved a dispute that arose post settlement.
2) Early disclosure will harm some plaintiffs. Some of those reasons are:
a) If the plaintiff loses the case, the disclosure will have been unnecessary. The unecessary disclosure of a social security number and date of birth to a third party is risky to the plaintiff. The plaintiff becomes vulnerable to identity theft.
b) The requirement will have a chilling effect on access to the court for non-U.S. Citizens. Some people who reside in this country do not have social security numbers. In Utah, many of them are minorities. Many of those people also lack a HICN number. To require them to disclose a social security number, or lack of such number, in a required court document will discourage at least some of them from accessing the court system. Some may be worried about deportation or other negative ramification that may result by being forced to disclose this type of information in a court document. This requirement will have the effect of closing the court house doors to those seeking personal injury damages that do not have social security numbers.
It may be argued that because they will eventually be forced to disclose the information, requiring it early is not harmful. I disagree. In my experience, the plaintiff can approach medicare prior to payment of a judgment or settlement and obtain a letter stating that the person is not eligible. This does not require disclosure/non-disclosure of a lack of social security number in an official court document.
3) The requirement is one sided. The plaintiff has a similar interest in obtaining the social security number of a defendant. If the plaintiff gets a judgment, the plaintiff should file a judgment information statement. That document asks for the defendant’s social security number.
For these reasons, the proposed rule should not be adopted.
Proposed Rule 26.2 addresses many of the concerns we had in applying the new discovery rules to personal injury claims. The new rules should not go into effect until Rule 26.2 is also effective. Is there any way to make certain that the rules all go into effect at the same time — either by speeding up the approval process for Rule 26.2, or delaying the effective date of the new discovery rules? If not, there will be a period of time where discovery in personal injury cases will be problematic and unnecessarily contentious.
URCP 083 Vexatious litigants should expand its definition of “Claim for Relief” to include complaints to the Utah Bar about opposing counsel, administrative hearings i.e. consumer protection, PSC, etc. Often times the vexatious litigant just takes his case to another forum and never stops.
If the Supreme Court insists on chilling the rights of citizens to obtain access to the courts, as guaranteed by the Constitution of Utah, then first it should insist that all secrecy protections afforded to government agencies and corporations be lifted as well–and in full. Do we need more lop-sided legislation from the courts to protect the power structure from full disclosure while penalizing citizen attempts to secure disclosure–a process which often requires several unsuccessful attempts even to find out who the right party is–regarding the withholding of information regarding toxic waste, political contributions, secret investigations of private citizens, and the like?
Proposed Rule 83 is good start, but does not go far enough. The proposed rule sets up too many loopholes a represented party will have to go through in order to have a pro se litigant declared a vexatious litigant. For example, the requirement of proving how many different times a pro se litigant has filed meaningless motions is too much of a barrier. The district courts should be given greater leeway to determine that a pro se litigant is vexatious and thus be able to impose appropriate sanctions under the circumstances of the case.
The requirement that plaintiffs disclose social security numbers and HICN (which are essentially social security numbers with an added alpha character) is unnecessary, harmful and countrary to the Federal requirements.
It is unnecessary because if the purpose is to comply with Medicare requirements for payback of medical costs, the purpose is more than adequately met by the existing statutory scheme wherein the plaintiff attorney is liable if a lien goes unpaid. Moreover, the plaintiff attorney is required to obtain and can provide to the liability insurer (which is where this rule change apparently originated) all the information necessary for the insurer to determine whether or not a Medicare lien exists. Finally, although liability insurers apparently read the MMSEA law as rendering them liable for failure to satisfy a Medicare lien, that is a misinterpretation of the law. “[F]ederal law does not mandate that a primary payer (or insurer) make payment directly to Medicare. . . Tomlinson v. Landers 2009 WL 1117399, 5 (M.D.Fla.) (M.D.Fla.,2009) (pointing out that insurers are liable only if the payee of the liability payment does not make proper reimbursement to Medicare)
Disclosure of these numbers is also unnecessary because the numbers are commonly included on all hospital admission records, copies of which the insurer undoubtedly possesses. The disclosure to hospitals (and redisclosure to insurers) is protected by Federal HIPAA Privacy Rule regulations. No such protection is afforded a mandated disclosure in a civil proceeding.
That lack of protection points up the danger of identify theft. It is a simple matter to obtain voluminous financial and personal information in the digital age, using only the simplest of tools and data. Adding a social security number to the available data obliterates any vestige of privacy and security, all the more so because a social security number is practically impossible to change even when it has been fraudulently used by another.
Finally, this rule change is contrary to the recent change in the online docketing system in the Federal courts, which now requires any user to attest to redaction of social security numbers and other private information upon every system login. Adopting this Rule would return Utah to the period before the Information Age, when people could rely for their privacy upon difficulty of obtaining private information. This proposed rule change is a giant step into the past.
Re Proposed Rule 83:
This is not a problem that can be solved by Rule. It requires legislative action. The import is to limit access to the courts, and so involves the Utah Constitution. Propounding a rule puts the courts in the position of later passing on the Constitutionality of a rule the courts adopted.
I am against the way URCP 83 is drafted. It is unconstitutionally overly vague and broad.
What is meant by “claims for relief” .. are they different claims. same claims. same federal statutes. same state statutes. What ‘claims’.
What is meant by ‘finally determined’? Is that ‘finally determined’ with an evidentiary hearing? In another court of ‘proper subject matter or personal jurisidiction’?
What is meant by “in ANY action”? where, in Utah courts or in federal administrative hearings, where? What kind, under what statutes?
What is ‘unmeritorious pleadings’? A pleading can be supported by fact and law, but lose. If that is the definition, then half of all Utah attorneys can be so classified if a Judge simply says ‘unmeritorious’ three times?
Why three times? Why not one time, or five times, or two times? Does this mean a Court cannot use its contempt powers after one time if the damages are great, or must it wait for the magic three times?
What is meant by ‘immaterial’? immaterial to whom?
Rule 11 and 10 cover immaterial or redundant materials.
The Court’s inherent powers covers its ability to sanction an individual based on all the surrounding circumstances, or NOT to sanction them. Are the rule writers attempting to take away from the Court’s their inherent powers?
And, once an attorney, primarily it will always predictably be small firm or solo attorneys is labeled vexatious by one judge in one case, the clerk disseminates that charge to all the Court’s clerks, even if no evidentiary hearing was involved in the initial determination, and without any other Due Process in cite.
The way it is written, one judge in one case can completely destroy an attorney’s professional future, by using this rule, with or without the OPC’s assistance and do so based on subjectivity, and without any evidentiary hearing or other due process protections. It will kill the 1st amendment as there are no clearly defined ways of using it.
It is time the Bar and the Court stopped doing the cost benefit analysis of what it takes to stifle accessibility to the Courts, shorten dockets, particularly for small firm lawyers, solo lawyers, and the medium income citizens or unpopular litigants or those with complex time consuming cases, who have no recourse to poverty firms, and cannot afford high income lawyers.
Constitutional entitlements and open courts entail the only means by which persons can peacefully resolve issues. This rule creates outcasts based on a single judge’s personal opinion. Open court’s provision is destroyed because due process protections are not in it.
If judges lack the training, maturity, and knowledge of how to maintain order in their cases without this rule, then what makes anyone sure such a judge can maintain order with it, where so many other rules provide more than ample means of providing Judges with authority to maintain order.
Factually, there are some Court doctrines an attorney may wish to challenge. Are those lacking meritorious substance? Who will challenge judicial doctrines when this rule allows the attorney to lose their license for such a free speech attempt?
This rule is unnecessary, undermines Judge’s abilities, is ill defined, overly broad, vague, and conflicts with U.S. Constitutional Due Process and Free Speech standards. It is only going to injure and impair the freedoms and entitlements of the U.S. Constitution for all Utah citizens.
I also agree with Clay Huntsman’s perspective below.
Susan Rose Attorney at Law
URCP 26.02 requires that the SSN be disclosed by plaintiff at the beginning of the case. Defendant does not need the SSN at the beginning of the case and only requires it at the close of the case before disbursements are made. Apart from federal MMSEA directives that make clear that the disclosure is only required after resolution and the chilling effect of some litigants is the issue of privacy. One only needs to be abreast of the news regarding identity theft to understand that the publication of one’s SSN is not wise. If this rule is enacted the disclosures should be somehow sealed and assurances made by defendant that dissemination will not be made in any matter not clearly dilineated for the purposes of verifying Medicare / Medicaid coverage and no other purpose. I.E. not to engage in a fishing expedition of insurance databases or other like expeditions.
URCP 26.2(b)(3) requiring initial disclosure of a SSN should not be adopted.
First, requiring the initial disclosure of a SSN for purposes of reporting to CMS is untimely. An insurance carrier’s duty to report to CMS is not triggered until a settlement has occurred. And, any benefit of early disclosure is greatly outweighed by a plaintiff’s privacy concerns, especially where Plaintiff might still lose at trial. Plus, the argument that early disclosure will “expedite personal injury cases” is incorrect. A plaintiff’s SSN is not relevant to any material fact in a personal injury case. And, any record relevant to the case requiring the plaintiff’s identity can be subpoenaed with a plaintiff’s full name and date of birth. Thus, requiring the initial disclosure of a SSN is untimely and violates a plaintiff’s legitimate privacy concerns.
Second, requiring the initial disclosure of a SSN, for a plaintiff who is an undocumented immigrant, raises serious ethical questions since it would force plaintiff’s counsel to essentially violate an attorney client communication regarding immigration status. Even if plaintiff’s counsel were to assert a client’s 5th amendment right against self incrimination or move for a protective order on the very narrow issue of SSN, s/he would have essentially violated the client’s communication with respect to immigration status. And, nothing would prevent a chagrined defendant from providing the same court document to ICE for investigation and enforcement. In addition to the ethical violation, this would have a chilling effect on an undocumented immigrant’s access to the courts.
The most logical solution would be to eliminate R 26.2(b)(3) altogether since the risk to plaintiff’s privacy, plaintiff’s counsel’s ethical concerns and the actual chilling effect greatly outweigh any material benefit to expediting the discovery process. A less favorable but alternative solution would be to require initial disclosure of just the plaintiff’s Medicare number. Although a Medicare number incorporates a SSN, raising serious privacy concerns for the plaintiff, at a minimum, this alternative solution draws a more focused line between Medicare recipients versus non-recipients instead of documented (e.g., USC, LPR) versus undocumented plaintiffs, thereby avoiding the ethical issue and chilling effect.
Rule 26.2(b)(4) should not be adopted because it violates the collateral source rule.
For example, if a person is injured in an automobile accident and misses five days of work, that person will frequently take sick days. It could easily be argued that those sick days are “income-replacement benefits.”
Under the collateral source rule “[i]f the benefit was a gift to the plaintiff . . . or established for him by law, he should not be deprived of the advantage that it confers. . . so long as they did not come from the defendant or a person acting for him.” Mahana v. Onyx Acceptance Corp. 2004 UT 59
Thus, under the collateral source rule, the defendant does not get the benefit of plaintiff’s sick pay.
The proposed “standard interrogatory” seeks precisely the information that the collateral source rule prohibits the defendant from introducing at trial.
This begs the question, “why do they need it?”
In my experience as a personal injury attorney, under the current rules this question is rarely asked by defense counsel. If it is asked, I object because it is not likely to lead to admissible information.
Rule 26.2 should not be adopted without changes because many of the interrogatories are inapplicable to many cases.
For example:
(b)(1) is likely not applicable in wrongful imprisonment cases;
(b)(2) is irrelevant in birth injury cases;
(b)(4) is irrelevant on its face when no lost income is claimed;
(b)(5) is irrelevant to most cases involving children;
(b)(6) is irrelevant when (b)(1) is irrelevant;
(b)(7) and (c)(3) are irrelevant in almost all slip and fall cases.
(c)(1) and (c)(5) are already required and give no additional infomation to the plaintiff.
If adopted, this rule should be modified to give flexibility in each case. A better rule would be to simply give each side an additional eight interrogatories in all personal injury cases. That way, the sides could tailor the interrogatories to seek information that would be the most beneficial to the case at bar.
If it is not changed, it should be amended to be more fair. The rule gives the defense eight interrogatories and gives the plaintiff only five, three of which give the plaintiff nothing new.
URCP 26.2(b)(3) requiring disclosure of a plaintiffs social security number with initial disclosures should not be adopted. There is no CMS requirement that a social security number be disclosed at the onset of litigation. The SSN reporting requirement for the CMS arises only after a settlement has occurred. The proposed rule change puts the cart before the cart. Because an initial disclosure of the SSN is not required by CMS, any conceived value of an initial disclosure of the SSN is far outweighed by the invasion of privacy that it imposes on the Plaintiff.
Clearly there is no “CMS requirement” that a social security number be disclosed at the outset of litigation. However, insurers have certain reporting requirements imposed on them. Additionally, when settlement is reached, there are additional reporting requirements are imposed — a fact that no one can deny. If a Plaintiff refuses to provide his or her SSN until settlement (as well as other required information), then that Plaintiff will likely have to wait months or more to receive the settlement funds.
Additionally, where is the actual invasion of privacy? There are multiple comments that have been submitted about an “invasion of privacy,” but no specific reasoning given. A party making a legal claim must disclose certain information relevant to that claim — including certain identifying information necessary to conduct discovery (obtain medical records, etc.) and effect a timely settlement.
Finally, the claim that “Disclosure of these numbers is also unnecessary because the numbers are commonly included on all hospital admission records” rings hollow. Plaintiff’s are commonly loathe to willingly disclose any of their relevant medical records. With the new limits in place, how, pray tell, is a defendant supposed to get these medical records?
First of all, there are easier ways for defendant’s in personal injury actions to get information required by Medicare under the MSRPC. Second, not all personal injury actions will include and insurance company as the payor on a successful claim, thereby making the disclosure of information required under Medicare’s rules unnecessary.
It would be better to require Plaintiffs to provide to opposing counsel information showing that either the Plaintiff is not entitled to Medicare benefits, or, in the alternative, if the Plaintiff is entitled to Medicare benefits, then and only would the Plaintiff have to provide information necessary for the Defendant to comply with the MSRPC rules.
As far as URCP 83 goes, it is unconstitutional considering the following section of the Utah Constitution:
“Article I, Section 11. [Courts open — Redress of injuries.]
All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party. ”
I certainly understand the privacy concerns of the social security numer, but under the new rules, discovery is not sent to the Court so initial disclosures are not a public document and the information can be protected. However, this number is necessary to obtain medical records from some providers and information from some other sources. Also, everything is under one’s social now. I could not order cable, and some of the other utlitities in my house without one. A personal injury lawsuit asking for thousands of dollars does create the need for information and the privacy concerns are outweighed by the needs for just and speedy resolution as noted by the committee.
As to past history, five years from filing is not proper. The statute of limitatios is four years for negligence cases. So in some cases, one year of previous history will be provided, and in some cases four or more years will be required. If a state agency is involved, with the one year statute (plus time for a denial), a plaintiff will give three and half years usually. In the medical malpractice cases, three years. In sum, the rule should be five years from the date of injury or disocvery of the injury and treat all plaintiffs the same.
Finally, some have expressed concern about insurance that may have paid wages. First, the collateral source rule applies to the admissbility of the information as a set off, not the discovery of same. Further, there is admissible information from these insurers, including confirmation of time missed, rate of pay, work limitations, prior claims, medical work releases, etc. Finally, some of these insurers (like Workers Compensation) may also be seeking reimbursement from one or more of the parties.
The vexatious litigant is, in my experience, pro se. My concern with the proposed rule is that it is too cumbersome, and provides too many loopholes, to offer any meaningful relief to those defendants who have to deal with such litigants. Those vexatious litigants with whom I have had to deal do not care what the rules say. Judges are often reluctant to take decisive action against them, both because they rarely know the history of the litigant, and because they feel constrained by the somewhat contradictory rulings from the appellate courts regarding the degree of flexibility with which they arenrequired to treat the pro se litigant. I think judges are legitimately concerned with the constitutional implications of limiting a party’s access to the courts, even though the vexatious litigant does not seem to share that same concern for the rights of their unfortunate opponents.
I suggest that the rule be a short, plain statement that vexatious litigants will be liable for sanctions. Armed with that kind of authority, the trial court can then make a determination of how best to deal with the vacations litigant on a case by case basis. The various provisions of the proposed rule would certainly be considerations that would inform a a decision, but putting them all into a rule just makes the rule impractical and, in the end, of little value.
I am mildly concerned that “disproportionate” discovery can be a basis for a conclusion that one is a vexatious litigant. The concept of proportionality, while perhaps laudable, is very plastic and it will likely take some time to define it’s contours. It has the potential to become a catch-phrase, like “bad faith”, that gets tossed around in ways that are not helpful.
The committee has correctly recognized that the revised rules do not adequately address the specific discovery requirements of defending a personal injury case and Rule 26.2 is much-needed step in the right direction.
The committee should keep the Medicare disclosure requirements found in (b)(3). As the committee is aware, Medicare’s authority to recover from secondary payers is very broad and there are significant consequences for liability insurance carriers who do not report settlements, including fines and the possibility of having to reimburse Medicare even after the settlement has been paid. In order to give insurance clients an opportunity to take steps to protect their interests (and to facilitate timely settlements), it is reasonable and expedient that personal injury plaintiffs make Medicare disclosures, including disclosure of their social security numbers. The rules adequately address privacy concerns because the disclosures are not filed with the court and do not become public record. I am not aware of any evidence, empirical or anecdotal, to suggest that disclosure of the plaintiff’s social security number in this context poses an increased risk for identity theft.
Generally speaking, the disclosures required by paragraph (b) are very typical of the interrogatories that we sent out in every personal injury case we defended prior to the rule changes. The information required by these disclosures is absolutely necessary to defend personal injury cases, even those that will be tried under Tier 1 discovery provisions. A couple modest changes, however, would make them more effective:
1. In (b)(2), change “before the filing of the action,” to “before the date of the plaintiff’s injury.” The amendment is necessary because we have a four-year statute of limitations for personal injury cases. As such, the relevant date for obtaining information about pre-existing conditions is the date of injury, not the date the complaint was filed.
2. In (b)(5), change “preceding the complaint” to “preceding the injury.” See comments above.
Since Rule 26.2 was proposed, UDLA and its members, the majority of whom practice a substantial amount of personal injury law, have held multiple group meetings and have consulted with numerous individual and business clients in an effort to collect and provide constructive commentary. We have concluded that Rule 26.2 positively addresses some of the unique issues presented by personal injury litigation. In particular, early disclosure of medical providers, medical records, employers and income-replacement benefits is critical to the proper evaluation and defense of personal injury claims. In our view, Rule 26.2 is essential if discovery is to be completed within the default dates set forth in newly amended Rule 26. Without the provisions of Rule 26.2, Rule 26 sharply and unjustly restricts discovery in litigation involving claims of personal injury. UDLA supports amending the Rules of Civil Procedure to add proposed Rule 26.2. However, UDLA also recommends incorporating the following comments and provisions, which it believes will further the intent of the proposed rule.
First, proposed Rule 26.2 specifically applies to “all actions seeking damages arising out of personal physical injuries or physical sickness.” (Lines 2-3.) If the intent of this language is to convey that the proposed rule applies only to personal injury litigation, inclusion of the word “physical” is unnecessary and confusing since it raises the question of whether claims such as loss of consortium or intentional infliction of emotional distress fall within Rule 26.2. UDLA recommends clarifying that all claims for personal injury are subject to Rule 26.2 by deleting the word “physical.” A Committee note should also be included to explain that the phrase “arising out of” is meant to include derivative claims.
Second, proposed Rule 26.2 requires that a plaintiff list “all other health care providers who treated or examined the plaintiff for any reason in the 5 years before the filing of the action” and “employers for the 5 years preceding the complaint if loss of wages or loss of earning capacity is claimed.” (Lines 9-10 and 18-19, respectively.) Medical and employment information generated prior to injury is vital to appropriately defending personal injury claims. The proposed language, which ties disclosure to filing of an action, unduly restricts the ability to obtain such information. Personal injury claims are frequently, if not typically, initiated toward the end of the limitation period. It is not uncommon for litigation to be filed within days of the expiration of the applicable statute of limitation. Given that Utah has a four-year statute of limitation on many actions, the proposed rule could preclude obtaining information beyond a period of one year prior to injury. A long history of relevant medical and employment records may be beyond the scope of disclosure. Accordingly, UDLA recommends that the language be changed to require the identity of “health care providers who treated or examined the plaintiff for any reason during the 5 years before the subject accident, injury or event” and “employers for the 5 years preceding the subject accident, injury or event if loss of wages or loss of earning capacity is claimed.” Any shorter time period would yield inadequate information in injury claims.
Third, proposed Rule 26.2 should include a requirement that a plaintiff disclose any known lien holders on any amount claimed as damages in the litigation. This information would include statutory hospital liens, private healthcare provider liens, health insurance liens, disability insurance liens and governmental program liens such as Medicare and Medicaid liens. Recently enacted federal and state law, such as the Medicare, Medicaid and SCHIP Extension Act of 2007 (“MMSEA”) provides extensive protection for benefits paid under government programs including Medicare, Medicaid, and the Utah Children’s Health Insurance Program. These laws burden both plaintiffs and defendants with affirmatively determining whether liens exist, and impose strict penalties on litigants, insurers, and even attorneys, if liens are not properly accounted for when settlements or judgments are paid. As a result, the identity of lien holders and the amount of any liens and conditional payments is required in order to properly evaluate, defend or settle a claim. UDLA recommends that Rule 26.2 include the following language, which will facilitate the efficient identification of liens that must be accounted for: [in subsection (b)] “The identity of all persons and entities, including governmental entities, who assert a lien or other interest in any amounts claimed as damages as a result of the injury at issue.”
Fourth, UDLA recommends that a plaintiff in a personal injury case be required to identify health insurers and all other entities to which the plaintiff has submitted claims for health care services or other benefits for a period of five years before the accident, injury or event. While there is an ongoing debate as to whether such information is itself admissible in all personal injury cases, a requirement to identify such entities allows a defendant to verify that it has received a complete disclosure of prior health care providers. Although proposed Rule 26.2 currently includes a requirement to disclose prior health care providers, it does not address situations where a plaintiff omits providers. We frequently encounter cases where a plaintiff fails to disclose prior providers, or cannot recall the name of a doctor or other provider who has provided relevant care. Obtaining information from health insurance companies and similar sources is a simple and inexpensive way to confirm that relevant prior treatment has been fully disclosed. Such information can be easily obtained via subpoena well within the deadlines of Rule 26 if insurers and similar entities are disclosed at the outset of discovery. UDLA recommends that Rule 26.2 include the following language: [in subsection (b)] “The identity of all health insurance companies, persons or entities, including governmental entities, to which plaintiff has submitted or could have submitted claims for health care services or benefits for the period from 5 years before the accident, injury or event to the present.”
Finally, we are aware of comments posted on the Committee’s web site raising concerns over the disclosure of Social Security Numbers. UDLA strongly supports the existing requirement in proposed Rule 26.2 that a plaintiff provide a SSN. Discovery of SSNs is routinely upheld in personal injury cases, even absent a consideration of MMSEA compliance requirements. See e.g., Breslin v. Dickinson Twp., 2011 U.S. Dist. LEXIS 44878, 14-18 (M.D. Pa. Apr. 26, 2011) (noting that “the discovery of background information such as name, address, telephone number, date of birth, driver’s license number, and social security number is considered routine information in almost all civil discovery matters”); Saunders v. Knight, 2007 U.S. Dist. LEXIS 44843, 2-3 (E.D. Cal. June 12, 2007) (requiring disclosure of social security number in a civil case stating, “this was an easy one to hit over the fence”); Gober v. City of Leesburg, 197 F.R.D. 519, 521 (M.D. Fla. 2000) (noting that disclosure is routine in civil matters and also stating that the plaintiff failed to demonstrate that the social security number was confidential); Fulmore v. Howell, 189 N.C. App. 93, 97 (N.C. Ct. App. 2008) (finding that disclosure of social security number was not protected under Federal Privacy Act of 1974, 5 U.S.C. 552a in wrongful death case arising out of a motor vehicle accident).[1]
The early disclosure of SSNs is extremely important. It is necessary for the collection of medical records. Most medical providers identify patients by SSNs. Without the SSN, it is very difficult, and often impossible, to obtain any information on a patient via either subpoena or authorization to release information. Social Security Numbers are also required in order to identify and resolve liens such as Medicare and Medicaid liens. Experience demonstrates that such liens typically take months to resolve. Waiting until the time of settlement or judgment to submit a SSN is not workable since the amounts of liens and any conditional payments is necessary to finalize settlements and awards. Disclosure of SSNs early in the discovery process will avoid stalled settlement efforts and delayed resolution of cases and UDLA believes that early disclosure of SSNs for all parties claiming damages is essential in personal injury cases. Any disclosure/privacy concerns can be addressed by redaction and other protective measures such as those currently required under the Federal Rules. Additional language indicating that all parties will avoid unnecessary disclosure of SSNs could also be included in the rule.
We believe the recommendations and positions outlined above will serve to strengthen the intent of both Rule 26 and Rule 26.2.