Judge Approves Insurer's Access to Kids' Web Postings

A New Jersey judge has allowed an insurance company that denied benefits to children with eating disorders to conduct a “cyber-investigation” into the children's postings on social networking websites.

Such investigations are becoming more common in lawsuits and U.S. Magistrate Judge Patty Shwartz's decision isn't likely to calm the fears of privacy advocates. The potential injury to the children from disclosure of their postings, she ruled, did not outweigh Horizon Blue Cross Blue Shield of New Jersey's need for the information.

Shwartz is handling discovery issues in two insurance coverage cases brought against Horizon by the parents of children suffering from anorexia or bulimia. The cases are Beye v. Horizon and Foley v. Horizon.

“The Court will require production of entries on webpages such as 'MySpace' or 'Facebook' that the beneficiaries shared with others,” Shwartz said in a Dec. 14 order.

In Washington state, Chrysler has taken a similarly intrusive approach by requesting access to the MySpace account of a woman who is suing the auto giant over injuries suffered in an auto accident. Marissa Schneider's MySpace page includes an admission that she smoked pot in the past.

“To say that anything posted on MySpace is gospel is ludicrous and it really paves the way for you to say, 'I can never post anything on this site because it's going to be used against me,'” her attorney told KING 5 News in Seattle.

The New Jersey cases hinge on a state law that requires coverage of “biologically-based” mental illnesses. In requesting disclosure of the children's postings, Horizon argued they could show that their disorders have emotional causes.

After Shwartz initially ordered the plaintiffs in October to “provide emails, journals, diaries, and communications concerning the [children's] eating disorder(s) or manifestations/symptoms thereof,” they moved for reconsideration, citing the “serious harm” that disclosure would cause the children.

“[C]ompelling disclosure of the Children's private writings, even in redacted form, will be harmful to their health, negatively impact their recovery and place them at risk for relapse,” they argued in the motion.

The parents also said Shwartz had put them in an “untenable” position:

No parent should have to sacrifice their child's health and the sanctity of trust within their parent-child relationship in order to maintain the right to legally fight for their contractual rights to insurance coverage to treat their child.

Shwartz responded by narrowing the scope of the discovery to the information that the children shared with others. But she refused to grant “a total bar on the production of the writings” and suggested the parents had only themselves to blame for any moral conflict.

“While the plaintiffs suggest that [the discovery] may require the plaintiffs to have to choose between pursuing this litigation or disclosing private information about their child,” she said,

that decision was made when the plaintiffs decide to file an action which required them to disclose information concerning their children’s eating disorders, something that they have described as an extremely sensitive topic.

Shwartz has also ordered the plaintiffs to certify that they have produced everything in their possession in compliance with the discovery order and what steps they have taken to comply.

By Matthew Heller
2/21/08