Occasionally, a subpoena is issued on behalf of a defendant doctor for diaries maintained by a plaintiff patient.
The NSW Supreme Court considered such a case in December 2021 in Haragli v Tan [2021] NSWSC 1581.
The plaintiff underwent a double mastectomy on 18 November 2011 and alleged that her general practitioner had been negligent in treating her properly from May 2008.
The defendant denied that he had been negligent.
The matter was listed for hearing on 1 February 2022.
In late November 2021, the plaintiff applied to strike out a subpoena issued by the defendant for the production of the plaintiffs diaries and journals from 1 October 2010 to date.
Harrison J heard the application on 3 December 2021 and delivered judgment on 7 December 2021, shortly before the end of the Supreme Court term.
Four main issues arose, being:
- The legitimate forensic purpose of the subpoena;
- The breadth of the subpoena;
- Privacy issues; and
- Practicality of production.
Legitimate forensic purpose
The plaintiff submitted that the subpoena had no legitimate forensic purpose and was no more than a fishing expedition to discover something that may or may not exist. She also argued that the defendant only became aware of the existence of the diaries and journals in correspondence exchanged between the parties after the subpoena was issued.
The defendant maintained the subpoena had a legitimate forensic purpose. The plaintiff had filed a statement of particulars alleging various injuries and disabilities for which she claimed damages. These included loss of feeling feminine, attractive or sexual; strained relationships with her children; restricted ability to engage with her children in the activity such as bike riding, swimming and walking; restricted ability to perform household duties; significant reliance on family members for personal and domestic care; marriage breakdown; the need to have someone present at all times due to sudden blood pressure drop, to assist in using the bathroom at night and getting out of bed, particularly in the morning; and inability to work.
Harrison J. agreed that the document sought in the subpoena had an apparent relevance.
Breadth of subpoena
The plaintiff submitted that the document sought covered an 11 year period which would enable the defendant the opportunity to trawl through it in the hope of finding something that may assist his case.
The defendant contended that the subpoena was only directed to the timeframe after the plaintiff underwent treatment for breast cancer.
Harrison J. agreed with the defendant’s submission, remarking that the period covering the documents was generously constrained.
Privacy issues
The plaintiff submitted that the very nature of the document asked for carrying the unacceptable risk that they may contain sensitive personal information unrelated to this claimant.
The defendant submitted that it was well known within personal injury litigation that subpoenas were frequently issued to treating practitioners including psychiatrists and psychologists and regularly involved access to highly sensitive information which was obtained by local practitioners.
Harrison J. concluded that in a case in which a plaintiffs contemporaneous recollection of events was or may be relevant to an issue of proceedings then the documents were in the first instance amenable to production.
Practicality
The plaintiff contended that her legal advisers would be required to review 11 years of diary entries before making judgment calls on each and every entry as to whether or not they fell within the scope of the subpoena.
The defendant contended that the plaintiff would not be required to expend the time or energy complained of in limiting the scope of the request if the subpoena was answered by production in full of her documents requested.
Harrison J. concluded that the issue of whether or not some of the material might contain inadmissible material was a question for the trial judge but did not arise at the point of production.
Outcome
Harrison J. dismissed the application to set aside the subpoena.
Conclusion
A defendant should be careful in choosing cases requiring the production of a plaintiffs diary.
The basic tenet is that there must be a legitimate forensic purpose.
Examples may include:
- Seeking to challenge a claim for domestic assistance by family or friends;
- Seeking to challenge the breadth of alleged injuries and disabilities which appear to be drawn from a plaintiffs lawyer’s precedent template; and
- Seeking to challenge a plaintiffs compliance with recommended treatment regimes by treating doctors in relation to rehabilitation.
This article was written by Kylie Agland, Partner and Don Murno, Consultant.
