From BIPA to GIPA: Another Four-Letter Word in Illinois Class Action Litigation, Part 5

ABSTRACT: A fresh wave of litigation has recently emerged in Illinois commonly known by the four-letter acronym GIPA—the Genetic Information Privacy Act. In a five-part series of posts, we examine GIPA’s background, key provisions of the Act, the remedies available under GIPA, certain types of GIPA cases being filed, and considerations for companies regarding GIPA litigation.

This week, Baker Sterchi is dedicating this blog to a discussion of the Genetic Information Privacy Act (‘GIPA”). In a five-part series of posts, we examine GIPA’s background, key provisions of the Act, the remedies available under GIPA, certain types of GIPA cases being filed, and considerations for companies regarding GIPA litigation.

For our final post, we examine GIPA’s impact outside of the GIPA litigation context, potential strategies for companies named in GIPA litigation, and considerations for companies hoping to avoid GIPA litigation:

Admissibility of Genetic Testing and Information

GIPA has the potential to significantly impact parties and counsel in non-GIPA litigation. Specifically, GIPA may prohibit the discovery or admission of certain types of medical records and medical information.  Pursuant to Section 15(a), except as provided in Section 15(b) and Section 30, genetic testing and information derived from genetic testing “shall not be admissible as evidence, nor discoverable in any action of any kind in any court…”  Section 15(b) indicates that genetic testing and genetic information derived therefrom is admissible as evidence and discoverable, subject to a protective order, in actions alleging a violation of GIPA, seeking to enforce Section 30 of GIPA through the Illinois Insurance Code, alleging discriminatory testing or use of genetic information under the Illinois Human Rights Act or the Illinois Civil Rights Act, or requesting a workers’ compensation claim under the Workers’ Compensation Act.  Finally, all information and records held by a State agency, local health authority, or health oversight agency pertaining to genetic information shall not be admissible as evidence nor discovery in any action of any kind in any court, except in limited circumstances, including when made with the written consent of all persons to whom the information pertains.  410 ILCS 513/30(b). 

In cases where a party’s medical history is relevant, counsel should be aware of these provisions, particularly when genetic mutations, genetic predispositions, and histories of genetic-related conditions are at issue.  The provisions discussed above will impact the process for obtaining medical records and information, inquiring into a party’s and a party’s family medical histories, and admitting evidence at trial.     

GIPA Considerations

For parties named in GIPA litigation, there are few GIPA court opinions to provide guidance.  Counsel, however, should consider some of the strategies employed in litigation involving the Illinois Biometric Information Privacy Act (“BIPA”) given certain similarities between the Acts and the litigation arising from them.  For example, non-Illinois entities should consider asserting a personal jurisdiction defense.  If the defendant’s conduct at issue occurred outside of Illinois, the defendant should have a general personal jurisdiction defense, which is an extremely limited form of jurisdiction typically reserved to a company’s state of incorporation and state in which its principal place of business is located.  

Additionally, defendants should evaluate the possibility of a preemption defense.  See, Big Ridge, Inc. v. Fed. Mine Safety & Health Review Comm’n, 715 F.3d 631 (7th Cir. 2013) (Federal Mine Safety & Health Act preempted plaintiffs’ GIPA claims).  To the extent applicable, defendants may be able to compel arbitration of GIPA cases.  For a discussion of this issue, see Coatney v. Ancestry.com DNA, LLC, No. 21-cv-1368-DWD, 2022 U.S. Dist. LEXIS 179873 (S.D. Ill. 2022) (defendant’s motion to compel arbitration denied); Melvin v. Big Data Arts, LLC, 553 F. Supp. 3d 447 (N.D. Ill. 2021) (defendant’s motion to compel arbitration denied); Manor v. Copart Inc., No. 17-cv-2585, 2017 U.S. Dist. LEXIS 175702 (N.D. Ill. Oct. 24, 2017) (granting defendant’s motion to compel arbitration).  Similarly, in the employment context, defendants should evaluate whether any claims are encompassed by collective bargaining agreements.  Finally, defendants should consider removal to federal court, as plaintiffs will need to satisfy federal pleading requirements and establish standing (i.e., establish a concrete harm or injury).  As BIPA litigation has shown, however, plaintiffs may argue that no actual harm is required to pursue a GIPA claim and, therefore, remand is appropriate.

Companies doing business in Illinois also should evaluate their current business practices to ensure compliance with GIPA.  Employers, for example, should review their hiring and pre-employment screening practices to avoid violating BIPA.  Similarly, employers should be familiar with the practices of any third-party medical providers that screen or evaluate applicants or employees.  Insurers, particularly accident and health insurers, should review their screening, underwriting, and actuarial processes. 

Regarding insurance, companies should consider evaluating their current liability insurance coverage given the rise in GIPA lawsuits.  As with BIPA litigation, insurance coverage disputes are likely to coincide with GIPA litigation.  Insurers may argue that GIPA lawsuits do not satisfy the insuring agreement and/or trigger the employment-related practices, violation of law, or access or disclosure exclusions. 

Conclusion