Beye v. Horizon Blue Cross Blue Shield of New Jersey (D.N.J. 2007)

In this class action lawsuit, Plaintiffs sued for health insurance benefits for their minor children who allegedly suffered from anorexia or bulimia. Defendant insurers had denied the claims on the ground that the conditions were emotionally based, rather than biologically based. New Jersey law requires coverage of mental illness only if it is biologically based.

In discovery, the insurer sought the online writings, such as e-mails and postings on Facebook and MySpace, of two of the minors. The insurer believed that such writings could provide evidence supporting its position that the minors’ eating disorders stemmed from an emotional cause. Plaintiff-parents of these two minors balked at these discovery requests and the insurance company sought an order from the Court compelling production of the discovery.

The Court agreed with the insurance company and ordered these Plaintiffs to produce their children’s e-mails, diaries, and other writings about their “eating disorders or manifestations/symptoms thereof, and related health conditions” that had been “shared with others, including entries on Websites such as ‘Facebook’ or ‘MySpace.’” Opinion at pp. 5-6. The Court noted that “[t]he privacy concerns are far less where the beneficiary herself chose to disclose the information.” Opinion at fn. 3.

Plaintiffs failed to produce any documents in response to the Court order. The insurance company sought further relief from the Court, including the sanction of an adverse inference against one set of parents due to their representation of possessing no responsive documents despite the production of responsive documents by their daughter’s medical providers. The Court flinched. The Court denied the request for sanctions, and instead only required plaintiffs to certify to the Court whether they had complied with the discovery order or if not, the steps taken to comply.

While the insurance company’s efforts to obtain the minors’ Facebook and MySpace postings did not ultimately pan out here, this case nonetheless illustrates the potential value of these types of online communications in an insurer’s defense arsenal.

Read unpublished Opinions filed December 14, 2007 and January 30, 2008