A technophile lawyer rediscovers the joys of pen and paper

Tuesday, July 13, 2010

How private is your journal?

Private journal, Diary of Henriette Dessaulles...Image via Wikipedia
Leave it to a lawyer to come up with this, but . . .

I've run across a lot of journaling blogs in the course of pursuing my pen and paper hobby. I don't keep a journal, but from my reading of blogs, it seems to me that many people write in their journals about their innermost feelings, confident in the privacy of their journal. But how private is it?

I'm not wondering how private you keep your journal -- whether you keep it under lock and key, in a hidden location, etc. No, I'm asking the question in a legal sense. In other words, could you be compelled by a court to disclose the contents of your journal if you were a party or a witness in a lawsuit and one of the parties had reason to believe that it contained information relevant to the case or to your credibility?

The scenario isn't that far-fetched. Consider the following examples:
  • Someone involved in an automobile accident "confesses" in her journal that night that she was so distracted -- by the kids in the back seat, by a cell phone conversation, by an elephant on the sidewalk,  whatever -- that she caused the accident. If she is sued by the other person in the accident, would the court -- should the court -- honor a demand to produce the journal? 
  • A doctor accused of malpractice writes in his journal about how personal problems in his life are making it difficult to concentrate when with his patients. Should the patient be able to introduce those journal entries as evidence?
  • A distraught divorced parent writes in his journal about how difficult he finds it to raise his children and how he sometimes wishes he didn't have them. Should those journal entries be evidence in a custody battle?
  • You are a witness in a case and your testimony heavily favors one party. Should the other party be able to impeach your credibility by pointing to your journal entries of your unrequited, secret love for the party who is helped by your testimony?
Are any of these genuine risks?

I have no idea. I do know that in California (where I live), the state constitution specifies a right to privacy, but I don't know if that provision provides privacy for journals. I also know that in those cases where privacy clearly applies (such as tax returns), and even where it is provided for by statute (such as bank or medical records), the privacy interest is not absolute; it may be overcome by a compelling need for the information in the lawsuit. I suspect the same would be true for a personal journal.

Privileges, on the other hand, are nearly absolute. The attorney-client, doctor-patient, and spousal privileges are based on the public policy favoring full and complete communication between the parties to the privileged communication. For example, the doctor-patient privilege exists not just as a matter of privacy but so a patient is not reluctant to disclose all information necessary to receive effective treatment. Spousal privilege exists because the public has an interest in fostering the stability of marriage, which requires that spouses be able to communicate frankly with their spouses about anything. It seems doubtful to me that the state would find a similar interest in promoting the writing of one's thoughts in a journal.  Don't expect to see a Journaler-Journal privilege established any time soon.

I know there are a few lawyers, at least, that follow this blog. Have any of you run across this issue in your practice? If so, what was the outcome?

UPDATE: Well, while I had this post in draft mode for the past few days, Nifty posted a real-life example at Notebook Stories. While the example cited there is extreme (war crimes), it illustrates the point may apply to the much more mundane examples I posit above.



  1. I don't know if you remember during the Clinton years when all sorts of investigations were going on a number of officials and other individuals were compelled to supply their journals--which presumably they kept for some sort of memoirs--without even a question or fight about it. Also, where I practice several people used their journals to "support" claims of sexual harassment et cetera, the entries seemed quite self-serving.

  2. In my jurisdiction (New Zealand), where we have no constitutional right to privacy, there is no specific protection given to journals or other private materials against their discoverability in court proceedings. There is an ability to get some protection against disclosure of confidential information but generally speaking, if there is relevant information in a journal, it must be disclosed. This is largely true of Australia and the UK as well.

  3. I'm in Energy Law, so I've not come across this issue. But if I leave for lunch, and I don't want to carry the journal with me (the feeble locks in our government office drawers mean nothing to a serious snoop), I write little post-its, naturally in Diamine Oxblood, that say, "You Loser! Stop Snooping!" and "P!$$ off & Go to H3<<."

    If they're not snooping, they won't see it...