Litigation over an insurer's refusal to pay health benefits for anorexia or bulimia may turn on what is revealed from the alleged sufferers' e-mails and postings on the social networking sites MySpace and Facebook.

The plaintiffs are suing in federal court in Newark, N.J., on behalf of their minor children, who have been denied benefits by Horizon Blue Cross Blue Shield of New Jersey.

Horizon claims that the children's online writings, as well as journal and diary entries, could shed light on the causes of the disorders, which determines the insurer's responsibility for payment. New Jersey law requires coverage of mental illness only if it is biologically based.

Horizon claims the eating problems are not biologically based and that the writings could point to emotional causes. It contends that access to the writings is especially important because the court has barred taking the minors' depositions.

The cases, Beye v. Horizon, 06-Civ.-5337, and Foley v. Horizon, 06-Civ.-6219, have been consolidated for discovery.

In December, U.S. Magistrate Judge Patty Shwartz ordered the plaintiffs to turn over by Jan. 15 the 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 Web sites such as 'Facebook' or 'MySpace.'"

On Tuesday, Shwartz ordered the plaintiffs to certify by Feb. 15 whether they have produced everything in their possession in response to the discovery order and what steps they have taken to comply.

Shwartz's December order narrowed the scope of an October order that was not restricted to writings shared with other people. The plaintiffs had asked Shwartz to reconsider the October order on the ground that the writings were therapy tools, not meant to be shown to others, and that their disclosure would cause anxiety and possibly even a relapse.

In a joint letter to Shwartz filed on Jan. 24 by both sides outlining discovery disputes, Horizon complained that the Jan. 15 compliance date came and went without disclosure. The insurer said it heard nothing from the Foley plaintiffs, and got a letter from the Beye plaintiffs saying they had no responsive documents.

The Beye letter's assertion is "an outright misrepresentation," Horizon said in the Jan. 24 letter, because medical providers for Dawn Beye's daughter have produced e-mails from Beye on her Yahoo account.

Noting there must be corresponding e-mails as well as e-mail from the computers of other plaintiffs, Horizon accused the Beye plaintiffs of "hiding the ball" or failing to conduct a diligent search.

Horizon asked Shwartz to sanction Dawn Beye with an adverse inference that her daughter's problems had psychological and emotional causes.

It also requested that all the plaintiffs be required to identify their e-mail accounts, and those of their families, and produce at their own expense a mirror-image copy of the hard drive for every computer used by their family.

In opposing Horizon's request, the Beye plaintiffs referred to the December order's mandate that writings shared with health care professionals be produced as part of the medical records, which they said had already been done and shouldn't have to be duplicated.

The Foley plaintiffs said they had already indicated they had no responsive documents and likened Horizon's requests to "killing a gnat with an atomic bomb."

Shwartz's Tuesday order denied the sanctions sought by Horizon and required only the certifications of diligence.

David Mazie, who represents the Beye plaintiffs, says they have produced whatever they have and have no Facebook or MySpace pages. Mazie, of Roseland, N.J.'s Mazie, Slater, Katz & Freeman, adds that disclosing personal writings would harm the fragile health of his clients.

The Foley plaintiffs lawyer, Bruce Nagel, of Roseland's Nagel Rice, says he believes his clients have no Facebook or MySpace pages. Nagel has filed similar class actions against two other insurers, DeVito v. Aetna, Inc., 07-Civ.- 418, and Kamer v. Cigna Healthcare, 07-Civ.- 1134, in which he says similar requests for minors' journal and Internet writings have not been made. Last October he agreed to a dismissal without prejudice in Kamer for what he terms "technical issues," but he says he plans to refile soon.

Horizon's counsel, Philip Sellinger of Greenberg Traurig in Florham Park, N.J., declines comment.

Horizon might get another crack at the journals, diaries and writings that have been kept private and are thus not currently subject to discovery. In her December order, Shwartz told the plaintiffs to preserve the writings in the event defense experts believe they need them.

Last year, a Union County, N.J., judge denied request for access to a plaintiff's MySpace and FaceBook sites. The Union Township Board of Education asked for the disclosure in a student's suit seeking emotional distress damages, T.V. v. Union Twp. Board of Education, UNN-L-4479-04. Superior Court Judge Kathryn Brock held that the student's privacy interests prevailed, absent a particularized showing of relevance, but left open the possibility that ongoing discovery might provide a basis to change her mind.

Horizon moved Tuesday to dismiss Beye and Foley on the ground that the court should abstain from deciding them because pending state legislation would resolve the issue.

The measure, S-607/A-2077, would amend the Mental Health Parity Law to remove any doubt that eating disorders must be covered like other illnesses. It was approved on Jan. 24 by the Senate Health, Human Services and Senior Citizens Committee and is before the Budget and Appropriations Committee.

An identical measure, S-807, passed the Senate during the past session and was approved by the Assembly Appropriations Committee before it stalled.

-------------------------------------------------------------------------------------------

By Mary Pat Gallagher, New Jersey Law Journal

Copyright © 2008 Yahoo! Inc. All rights reserved.  Copyright © 2008 NLP IP Company. All rights reserved.

Presented by InsuranceHeadlines.com