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Several months ago, new rules governing discovery in Utah cases took effect, as part of an effort to increase judicial efficiency and to speed the personal injury litigation process. (Side note: Discovery is the process by which parties to a litigation exchange evidence that would likely be relevant to the claims or defenses in a lawsuit.) The court’s goal is certainly a laudable one — requiring parties to a lawsuit to disclose information earlier in litigation can be helpful in reaching early settlements, and could help reduce the court’s growing civil dockets.

Among the many changes included in the discovery rules (Utah Rules of Civil Procedure 26.2 — Disclosures in personal injury actions) is the requirement for plaintiffs in personal injury actions to disclose their Social Security numbers or Medicare health insurance claim numbers. One rationale behind this requirement is to alert Medicare of any outstanding personal injury claims so that the agency can place a lien against the plaintiff’s potential judgment. Furthermore, personal injury defendants often use a plaintiff’s social security number to perform a background check to determine whether a particular plaintiff has multiple personal injury claims in their history.

The danger for undocumented immigrants who become personal injury victims is that they are unable to comply with the rule requiring disclosure of their social security number because they simply do not have social security numbers. Prior to the rule, plaintiff’s attorneys were able to either object to any discovery requests that asked for the plaintiff to disclose their social security number, or they would provide a federal tax identification number, which many undocumented immigrants do have. The fear among many plaintiff’s side attorneys is that by disclosing that their undocumented clients do not have a social security number could lead to trouble for their clients with Immigration and Customs Enforcement (ICE).

As it stands, many undocumented immigrants who are injured by the willful or negligent acts of others are hesitant to assert claims against tortfeasors because they fear the system. So when they do assert their rights, it becomes incumbent upon their attorneys to act professionally in protecting their confidential information, including their immigration status. Additionally, attorneys occupy a position of trust with their clients, in which confidentiality is sacrosanct — this professional duty is owed to the client, regardless of that client’s legal status in this country.

The new Utah rule certainly poses challenges for the undocumented plaintiff and his attorney. It is up to the plaintiff’s attorney to ensure that he or she is doing his best to act within the scope of his professional obligations, while still remaining substantially compliant with the new rules. It should be interesting how creative plaintiff’s attorneys become in addressing this issue.

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