Evan Schuman's StorefrontBacktalk

If a retailer is sued, the first instinct is to find out whatever it can about the person suing the company. “Who is this guy, and why is he suing us?” This principle may apply to not only the actual litigant but any witnesses or experts that the litigant may call or threaten to call.

Sure, it’s appropriate to scan the Internet for articles or postings by a plaintiff’s expert witness. But are you permitted to pull up their record of alcohol purchases or reading habits or other records in an effort to discredit them? If you can do it, can third-party litigants then subpoena the same records from you for the same purposes, merely on a showing of possible relevance?

The way most privacy policies are written, the answer may be yes. If you say, “We can use any information we have collected about you in any way to protect ourselves, our assets or our property,” then you at least have a colorable argument that the consumer has “consented.” So if a witness shows up to testify against a retailer, impeccably dressed, the retailer might be able to call up the videotape of the same witness acting belligerently to a store clerk on a Saturday night four years ago (depending on the retention policies of the retailer.) If a retailer has affiliate agreements with other third parties, then their databases may be ripe for mining about potential litigants or witnesses.

Maybe that person who claims to have seen the slip and fall at Costco also got (or failed to renew) a prescription for eyeglasses. Maybe the “unrelated” witnesses were observed coming into the store together (or making purchases) years ago. The same data could also be used by retailers seeking to affirmatively initiate litigation.

If you disagree with me, I’ll see you in court, buddy. If you agree with me, however, I would love to hear from you.