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A plaintiff is accusing her former company’s defense counsel at Paul, Hastings, Janofsky & Walker of humiliating her by putting her medical information into the public eye while litigating a workplace discrimination suit. Caron Rakich filed suit last week over an insurance form the law firm attached to one of its court filings during a discovery dispute. She names Paul Hastings, two of its lawyers and her former employer, EMC Corp. The breach-of-privacy complaint does not elaborate on the medical information contained in the insurance application. Within days of the filing, Rakich’s lawyer asked Paul Hastings associate Katherine Kettler to agree to seal the exhibit, and she promptly agreed. But Rakich claims that even the document’s brief disclosure caused her “severe embarrassment and humiliation.” The law firm maintains her complaint is without merit. “Paul Hastings at all times acted properly in its representation of EMC in that litigation,” said Eileen King, the firm’s PR manager. “And we expect the claim to be dismissed by the court in short order.” A spokeswoman for EMC, an information storage company, said the company would not comment on ongoing litigation. Rakich’s original suit against EMC Corp. continues as well, though Paul Hastings is no longer defending the company. The insurance document entered the case during a discovery argument over Rakich’s medical information. According to a magistrate judge’s order in the federal case against EMC, the company pointed to the emotional distress claim and asked for “all information” related to her emotional state since her employment there. That included a description of Rakich’s distress, the names of her doctors, and her medical and psychology records. Rakich objected on privacy grounds. As the two sides briefed the issue, Paul Hastings filed a declaration by Kettler, with the “evidence of insurability form” attached. U.S. Magistrate Judge Howard Lloyd ultimately turned down EMC’s discovery request last year, saying the company hadn’t shown the information it wanted was “directly relevant” to Rakich’s claim. Rakich’s attorney, San Francisco solo Alden Knisbacher, said in an interview this week that claims for emotional distress damages are routine and don’t necessarily call for a look at someone’s medical background. “This case has nothing to do with disability. It has nothing to do with anything medical.” Generally speaking, once a plaintiff sues, he or she waives their right to their own personnel records, as well as their medical records if a medical condition is at issue, said Dennis Huie, a senior associate in the employment practice group at Rogers Joseph O’Donnell & Phillips. If there’s a complaint about one side improperly disclosing information, he added, it usually comes from a third party, because plaintiffs often ask for the personnel records of other people in their company. Pamela Phillips, who leads the same firm’s professional liability practice group, says there seems to be split authority when it comes to whether one party’s constitutional privacy claim should trump the protection given under the state’s litigation privilege. In a case like Rakich’s, Phillips said, “if in fact what they attached is directly relevant to the dispute, it seems to me there’s a pretty good chance … that the firm will have the protection of the litigation privilege.”

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