Citing Google for the very first time

One always remembers the “first time” and citing a Google search in an appellate brief is no exception. At least for me.

The context has to do with my day job as a practicing lawyer. One of the myriad things I do is represent a special “long-term care ombudsman” program that investigates and mediates allegations of abuse, neglect and mistreatment of nursing home patients and other long-term care residents. The investigations are highly sensitive and highly confidential, and under California constitutional and statutory law are also highly privileged. Predictably, the ombudsman investigations are viewed as a target-rich repository of potential evidence by some, and so the ombudsman program frequently gets served with subpoenas to compel disclosure.

That’s where I come in. In the normal course, discovery attempts are readily deflected once counsel and the court are appraised of the claims of privilege and confidentiality that shield the ombudsman—always a non-party to the litigation—from discovery.

But not always, and in a major way not in a recent case in which a California trial court ruled against the ombudsman program and entered an unprecedented, sweeping order requiring the disclosure of all the ombudsman’s investigatory records in a particular nursing home. Yipes! But LSNC was all over it and pursued an extraordinary writ from the appellate court to get a stay order stopping the discovery cold. Done! But it ain’t over ’til it’s over, right? As it turns out, there is no reported decision in any jurisdiction in the country on this particular type of ombudsman claim of privilege and confidentiality, and the discovery dispute has come to a head with full-on briefing and oral argument in a case of national first impression.

We had already briefed this puppy to the max, but the appellate court a few weeks ago requested a supplemental “letter brief” (code: keep it short … really short) from all involved about whether the case is moot and even if so whether the public interest character of the case warrants the court proceeding to decision. Well, not surprisingly, from our point of view as the “non-party” being dragged constantly into this case and so many others like it there was a very practical argument to be made: The issue is one of broad public impact because, among other things, there is this huge number of attorneys motivated to attempt this type of discovery. Fair enough observation, but how do we actually establish that fact as a non-party appearing before the appellate court in an extraordinary proceeding without a conventional record?

That’s where Google comes in. Here’s the single footnote we dropped into our letter brief:

There is a very large segment of the plaintiffs’ bar, not to mention any number of defense counsel, that would jump at the opportunity to compel disclosure of ombudsman records. Should the Court have any lingering doubts about the potential for recurrence of the type of discovery attempted in this case, petitioner invites the Court to do a simple search at Google using these six keywords—california attorneys nursing home abuse neglect mistreatment—and view the search results.

Ya gotta love the Google!