GOODELL v. MOULTON (2026)

This case presents the question of how the Georgia Constitution's right to privacy applies to civil discovery of medical records. The plaintiff, Maggie Moulton, is suing her ex-boyfriend, William Goodell, for allegedly giving her genital herpes. Goodell asserted the Georgia Constitution's right to privacy as a basis for not providing certain medical records and information in discovery, and Moulton moved to compel production. The trial court agreed with Goodell and denied Moulton's motion. The Court of Appeals vacated that ruling, concluding that the hearing Goodell received in the trial court was sufficient protection of his right to privacy, and remanded for the trial court to determine which parts of the requested discovery Moulton was entitled to, and to craft a protective order if necessary. We granted certiorari to consider the proper legal standard to apply to claims that the right to privacy bars civil discovery, as well as the nature and scope of that right.

Under a straightforward application of unchallenged precedent, the information and records at issue are within the scope of the Georgia constitutional right to privacy. And our answer to the legal-standard question is guided by our decision that long ago recognized a Georgia constitutional right to privacy, Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905). Pavesich recognized such a right while acknowledging that the right would often have to be carefully balanced against a range of other competing rights and interests. Goodell argues that strict scrutiny applies and bars discovery here. We disagree. The nuanced balancing Pavesich called for is a far cry from the blunt instrument of strict scrutiny, which if applied here risks upending civil discovery altogether. We explain the proper balancing approach that trial courts should apply in cases like this, vacate the Court of Appeals's opinion, and remand for the trial court to apply in the first instance the principles we outline.

1. Factual and procedural background

After their long-term relationship ended, Moulton brought various claims against Goodell, including a tort claim alleging that he gave her genital herpes without disclosing his infection status. See Long v. Adams, 175 Ga. App. 538, 539–41, 333 S.E.2d 852 (1985) (plaintiff who claimed that defendant negligently and intentionally infected him with genital herpes stated cause of action); Beller v. Tilbrook, 275 Ga. 762, 762, 571 S.E.2d 735 (2001) (“[Civil defendant] recognizes that he could be held liable in tort for negligently or deliberately infecting [the plaintiff] with herpes, a sexually transmitted disease. See Long[.]”). In discovery, Moulton sought identification of Goodell's primary care providers and records for all medical visits over the course of more than a decade, as well as the identification of and records for all medical lab reports since 2020. Goodell objected to the discovery requests, asserting that the information and records in question were protected by his right to privacy under the Georgia Constitution.

After Goodell objected, Moulton filed a motion to compel. She also moved for qualified protective orders. Moulton argued that (1) discoverability of certain medical information necessarily follows from Georgia law's recognition of the tort of negligent transmission of an STD; (2) Goodell placed his health care status at issue both by having unprotected sex with Moulton and by denying in his Answer that he has herpes;¹ and (3) Goodell waived his medical privacy as to Moulton by naming her as his health care agent, allowing her to accompany him into exam rooms at medical appointments, and leaving medical documents and medication in open view in their home. Moulton also argued at a hearing that the Court's precedent on the State's ability to obtain a criminal defendant's medical records meant that “[y]ou just have to go through the right process[,]” and “here I think that we've gone through the right process.”

The trial court denied Moulton's motion to compel to the extent that it sought Goodell's medical records and also denied the corresponding motion for qualified protective orders. The trial court relied on the notion that medical information and documents are generally protected by the Georgia Constitution, as reinforced by the Georgia Evidence Code, specifically OCGA §§ 24-12-10,² 24-12-11,³ and 24-12-12.⁴ The trial court concluded that Goodell did not waive his right to privacy through his prior cohabitation with Moulton, designation of her as his health care agent, or the positions that he had taken in the litigation. But the trial court did not consider explicitly the interests of anyone other than Goodell, including Moulton, in determining whether compelling disclosure of the information and records at issue would violate Goodell's constitutional right to privacy.

The Court of Appeals granted Moulton's interlocutory application and vacated the trial court's ruling as to the medical records and information. See Moulton v. Goodell, 375 Ga. App. 739, 917 S.E.2d 396 (2025). First, the Court of Appeals began by noting that OCGA § 9-11-26(b)(1) generally authorizes civil discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]” Because “[t]here is no general physician-patient privilege in Georgia,” and because Moulton “has articulated a recognized claim for non-privileged information regarding Goodell's medical records,” the Court of Appeals reasoned, “the trial court should have issued orders narrowly tailoring the discovery to the necessary information.” Moulton, 375 Ga. App. at 741, 917 S.E.2d 396.

The Court of Appeals then addressed Goodell's constitutional claim, relying on King v. State, 272 Ga. 788, 535 S.E.2d 492 (2000) (“King I”), and Ussery v. Children's Healthcare of Atlanta, Inc., 289 Ga. App. 255, 656 S.E.2d 882 (2008), to conclude that the right to privacy in medical records is “protected by the prohibition of disclosure of records without either consent of the subject or due process via a hearing at which the subject of the records has a right to object.” Moulton, 375 Ga. App. at 741–42, 917 S.E.2d 396. The Court of Appeals concluded that here “the motion and hearing were sufficient due process to meet the requirements of Goodell's right to privacy.” Id. at 742, 917 S.E.2d 396.

The Court of Appeals faulted the trial court for focusing on “waiver, not availability” and “ignor[ing] the state law cause of action that gives rise to Moulton's right to access certain of Goodell's medical records.” Moulton, 375 Ga. App. at 742, 917 S.E.2d 396. The Court of Appeals relied on language from its own case law to the effect that the right to privacy “is not absolute.” Id. (quoting Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga. App. 571, 579, 571 S.E.2d 557 (2002)). It also quoted language that ultimately traces back to Pavesich to the effect that the right to privacy “must be made to accord with the rights of those who have other liberties, as well as the rights of any person who may be properly interested in the matters which are claimed to be of purely private concern.” Moulton, 375 Ga. App. at 742, 917 S.E.2d 396 (quotation marks omitted). See also Pavesich, 122 Ga. at 201, 50 S.E. 68. The Court of Appeals ultimately concluded that the trial court had misapplied the law and abused its discretion. Moulton, 375 Ga. App. at 743, 917 S.E.2d 396. The Court of Appeals directed the trial court to enter on remand “an order narrowly tailored to properly identify the discovery to which Moulton is authorized under our case law” and “any necessary qualified protective orders related thereto.” Id.

Goodell sought certiorari, and we granted his petition to consider, among other things, the nature and scope of the right at issue and the standard to apply in determining if and when that right should give way to other interests.

2. Analysis

(a) Under our precedent, Goodell has a constitutional right to privacy in the records and information at issue.

Article I, Section, I, Paragraph I of the Georgia Constitution (“Paragraph I”) provides: “No person shall be deprived of life, liberty, or property except by due process of law.” This Court's recognition that Paragraph I protects a right of privacy dates back to Pavesich. In Pavesich, we were the first high court in the nation to recognize a constitutional right to privacy, and we concluded that this right could be vindicated by the plaintiff's tort claim against private actors involved in the publication of an advertisement that used the plaintiff's likeness in a newspaper. 122 Ga. at 192, 201–02, 50 S.E. 68. Pavesich used broad language, indicating that Paragraph I encompasses “[a] right of privacy in matters purely private”; “the right of personal security and the right of personal liberty”; and “the right of a person to be secure from invasion by the public into matters of a private nature[.]” Id. at 194–95, 197, 199, 50 S.E. 68. See also id. at 195, 50 S.E. 68 (“An individual has a right to enjoy life in any way that may be most agreeable and pleasant to him, according to his temperament and nature, provided that in such enjoyment he does not invade the rights of his neighbor or violate public law or policy.”).

Moulton appears to criticize Pavesich, arguing that “privacy is nowhere mentioned in the state or federal constitution, and a right of privacy has never been enshrined in any amendment to the constitution or in any amendment effort, and the Republic existed for nearly 130 years before Pavesich recognized a tort based upon a violation of the right to privacy.” But whatever one might think of Pavesich’s ground-breaking nature at the time it was decided, more than 12 decades have passed since we decided it, during which the people of Georgia adopted three new constitutions. The adoption of those new constitutions without any change to the language of Paragraph I creates a presumption that the holding of Pavesich was carried forward into each new constitution if our precedent on the right to privacy was consistent and definitive leading up to each new constitution. See Elliott v. State, 305 Ga. 179, 184–87, 824 S.E.2d 265 (2019) (explaining consistent and definitive construction presumption). And our precedent was consistent and definitive on this point up through the adoption of the 1983 Constitution.

We consistently and definitively recognized that Paragraph I contains a right to privacy as defined by Pavesich throughout the duration of the 1877 Constitution. See Tanner-Brice Co. v. Sims, 174 Ga. 13, 21, 161 S.E. 819 (1931); Bazemore v. Savannah Hosp., 171 Ga. 257, 259–61, 155 S.E. 194 (1930). We continued to recognize the right to privacy as defined by Pavesich throughout the duration of the 1945 Constitution. See Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 62, 200 S.E.2d 127 (1973), reversed on other grounds by 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); Conway v. Signal Oil & Gas Co., 229 Ga. 849, 850–52, 194 S.E.2d 909 (1972); B-W Acceptance Corp. v. Callaway, 224 Ga. 367, 368, 162 S.E.2d 430 (1968); Wright v. Lester, 218 Ga. 31, 34, 126 S.E.2d 419 (1962); Gouldman-Taber Pontiac, Inc. v. Zerbst, 213 Ga. 682, 682–84, 100 S.E.2d 881 (1957); Waters v. Fleetwood, 212 Ga. 161, 163–68, 91 S.E.2d 344 (1956). And we also did so throughout the brief duration of the 1976 Constitution. See Martin Luther King, Jr., Ctr. for Soc. Change, Inc., v. Am. Heritage Prods., Inc., 250 Ga. 135, 138–43, 296 S.E.2d 697 (1982); Ga. Gazette Pub. Co. v. Ramsey, 248 Ga. 528, 528–30, 284 S.E.2d 386 (1981); Doe v. Sears, 245 Ga. 83, 86–87, 263 S.E.2d 119 (1980), superseded by statute on other grounds as recognized by Blalock v. Cartwright, 300 Ga. 884, 888, 799 S.E.2d 225 (2017); Athens Observer, Inc. v. Anderson, 245 Ga. 63, 65–66, 263 S.E.2d 128 (1980). In short, Pavesich had been definitively and consistently recognized as the law of Georgia for many decades at the time the 1983 Constitution was adopted. Accordingly, the holding of Pavesich, with its articulation of the Georgia Constitution's right to privacy, is part of the original public meaning of Paragraph I as it was incorporated in the 1983 Constitution, and we reject any implicit suggestion in Moulton's criticism that we should reconsider it. See Elliott, 305 Ga. at 184–87, 824 S.E.2d 265.

Since the 1983 Constitution was adopted, we have extended Pavesich's right to privacy to three additional categories. First, we extended it to protect the right of a competent adult to decline life support for themselves or an incompetent ward. See In re L.H.R., 253 Ga. 439, 446, 321 S.E.2d 716 (1984) (decision by parents and appointed guardian ad litem for incompetent child); State v. McAfee, 259 Ga. 579, 580–81, 385 S.E.2d 651 (1989) (decision by competent adult for self).

Next, we extended it to protect the right of persons above the legal age of consent to engage in “unforced” sexual activity in the privacy of the home. See Powell v. State, 270 Ga. 327, 329–36, 510 S.E.2d 18 (1998) (holding that Georgia constitution's right to privacy prevented prosecution for “unforced sexual behavior conducted in private between adults” in criminal defendant's apartment in part because the statute criminalizing such “exceeds the permissible bounds of the police power”; although defendant's wife's 17-year-old niece testified that she did not consent to the sexual activity between the niece and the defendant, the jury convicted him only on a count for which lack of consent was not an element); In re J.M., 276 Ga. 88, 88, 575 S.E.2d 441 (2003) (reversing juvenile delinquency adjudication for violation of fornication statute, as under Powell “the Georgia Constitution protects from criminal sanction private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent”). Compare In re C.P., 274 Ga. 599, 600–01, 555 S.E.2d 426 (2001) (Powell does not extend to sexual activity in stall in public bathroom).

Finally, we also extended the Georgia constitutional right to privacy to protect personal medical records, at least under certain circumstances. We have applied that right repeatedly in the context of state attempts to obtain those records for use in a criminal prosecution, such that the Fourth Amendment and Article I, Section I, Paragraph XIII of the Georgia Constitution (“Paragraph XIII”)⁵ also are implicated. See King I, 272 Ga. at 788–94, 535 S.E.2d 492 (statute could not constitutionally be applied to authorize the use of a subpoena to obtain a DUI defendant's blood-alcohol test results from a hospital, given the right of privacy recognized in Pavesich and a patient's “reasonable expectation of privacy” in her medical records); Gates v. State, 317 Ga. 889, 891–94, 896 S.E.2d 536 (2023) (applying King I to conclude that an ex parte order was not a permissible means of obtaining an accused's medical records for use in a criminal prosecution). See also King v. State, 276 Ga. 126, 127–29, 577 S.E.2d 764 (2003) (“King II”) (search warrant was a constitutionally permissible means of obtaining an accused's medical records from a hospital, as “the Fourth Amendment has itself struck the balance between privacy and public need,” and the Court was “reluctant to construe the state constitutional right to privacy as imposing additional procedures when a search warrant seeks medical records due to our concern that these requirements would be extended to other matters related to search warrants” (quotation marks omitted)). We also have recognized a right to medical privacy in the civil discovery context, albeit without articulating any particular standard for determining when that right might give way to other interests. See Baker v. Wellstar Health System, Inc., 288 Ga. 336, 338, 703 S.E.2d 601 (2010) (citing King I for the proposition that the “Georgia Constitution guarantees [a] right of medical privacy” and concluding that the qualified protective order at issue was too broad because it was not limited to matters as to which the patient-plaintiff had waived his right to privacy).⁶ Apart from her implicit criticism of Pavesich that we have already addressed, Moulton does not challenge any of this precedent as wrongly decided, and so we apply it here without question. Under that unchallenged precedent, it is clear that Goodell has a Georgia constitutional right to privacy in the medical information and records at issue.

(b) The appropriate standard for considering whether the requested civil discovery disclosures would violate Goodell's Georgia constitutional right to privacy is the nuanced balancing described in Pavesich, not strict scrutiny.

The next question is how to translate the protection of that constitutional guarantee into a judicial standard applied in the context of a civil discovery request for medical records. The question of the applicable standard specifically in that context is a novel one. Our answer to that question must be guided by Pavesich, the seminal case recognizing the right to privacy. And that case expressly recognized the importance of nuanced balancing of competing interests, considering the nature and degree of the potential infringement, as well as any competing interests of other individuals and the public at issue.

Similar to this case, Pavesich involved a tort claim. See 122 Ga. at 192, 201–02, 50 S.E. 68 (“It therefore follows from what has been said that a violation of the right of privacy is a direct invasion of a legal right of the individual. It is a tort, and it is not necessary that special damages should have accrued from its violation in order to entitle the aggrieved party to recover.”). Pavesich thus by necessity considered the plaintiff's interests in maintaining the privacy of his likeness against the defendants’ own free speech rights. And in discussing at length the reasons no other court had yet expressly recognized a right to privacy, Pavesich focused especially on the difficulty of balancing competing interests among various stakeholders. See id. at 200–20, 50 S.E. 68 (“The stumbling block which many have encountered in the way of a recognition of the existence of a right of privacy has been that the recognition of such right would inevitably tend to curtail the liberty of speech and of the press.”). Pavesich concluded that this tension was not a reason to conclude that a constitutional right to privacy does not exist. See id. at 200, 50 S.E. 68 (“It may be said that to establish a liberty of privacy would involve in numerous cases the perplexing question to determine where this liberty ended and the rights of others and of the public began. This affords no reason for not recognizing the liberty of privacy and giving to the person aggrieved legal redress against the wrong-doer in a case where it is clearly shown that a legal wrong has been done.”). But Pavesich recognized that the Court must sensitively consider other interests on a case-by-case basis:

In regard to cases that may arise under the right of privacy, as in cases that arise under other rights where the line of demar[c]ation is to be determined, the safeguard of the individual on the one hand and of the public on the other is the wisdom and integrity of the judiciary. Each person has a liberty of privacy, and every other person has as against him liberty in reference to other matters, and the line where these liberties impinge upon each other may in a given case be hard to define; but that such a case may arise can afford no more reason for denying to one his liberty of privacy than it would to deny to another his liberty, whatever it may be. In every action for a tort it is necessary for the court to determine whether the right claimed has a legal existence, and for the jury to determine whether such right has been invaded, and to assess the damage if their finding is in favor of the plaintiff. This burden which rests upon the court in every case of the character referred to is all that will be imposed upon it in actions brought for a violation of the right of privacy.

Id. at 200–01, 50 S.E. 68. The Court went on to conclude that it had little difficulty determining which side of the line the case at hand fell on, saying that the “form and features of the plaintiff are his own,” the use of one's picture for advertising purposes in the newspaper necessarily carries with it the possibility that the picture may be posted anywhere, and the “constitutional right to speak and print does not necessarily carry with it the right to reproduce the form and features of an individual.” Id. at 217–18, 50 S.E. 68. The Court declared that its conclusion was “thoroughly in accord with natural justice, with the principles of the law of every civilized nation, and especially with the elastic principles of the common law[.]” Id. at 218. Pavesich thus required a kind of nuanced balancing of competing interests.⁷

Our precedent applying the Georgia constitutional right of privacy to medical records is not a model of clarity as to the applicable standard, but it is not inconsistent with Pavesich. In these cases, we effectively engaged in the sort of balancing required by Pavesich, albeit while invoking Fourth Amendment-related principles as part of the analysis and conclusion, given that the cases involved prosecutorial action in the criminal context. In King I, which involved the State's use of a subpoena to obtain a DUI defendant's medical records, and Gates, which involved an ex parte court order, we rejected the procedures used by the State as permitting too severe an infringement of the right to privacy without a sufficient basis in competing interests. See King I, 272 Ga. at 788–94, 535 S.E.2d 492 (concluding that although “law enforcement and public safety are compelling and legitimate state purposes,” State's use of a subpoena would unreasonably impact constitutional right to privacy by giving State unlimited access to medical records without certain safeguards); Gates, 317 Ga. at 891–94, 896 S.E.2d 536 (extending reasoning of King I to conclude that State obtaining DUI defendant's medical records via ex parte court order violated defendant's state due process right to privacy, quoting King I for the proposition that a patient has “a reasonable expectation of privacy” in the information contained in his medical records). In King II, in contrast, we declined to extend King I to forbid the use of a search warrant to obtain medical records, as “unlike the subpoena process used in King [I], the process for obtaining a search warrant has procedural safeguards that limit the State's ability to obtain a defendant's private records[,]” and “the ‘Fourth Amendment has itself struck the balance between privacy and public need[.]’ ” King II, 276 Ga. at 127–29, 577 S.E.2d 764 (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 559, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978)). See also Bowling v. State, 289 Ga. 881, 883–84, 717 S.E.2d 190 (2011) (citing language from King II to the effect that State's interest in discovering incriminating evidence can justify invasion of privacy, in rejecting murder defendant's claim that search warrant for his medical records was unconstitutional under Fourth Amendment and Paragraph XIII, noting that although defendant was “not asserting a due process violation, these statements [in King II] apply with even greater force to defeat the violations of the Fourth Amendment and Georgia Constitution alleged here”); Dep't of Corrections v. Colbert, 260 Ga. 255, 256–57, 391 S.E.2d 759 (1990) (relying on federal Fourth Amendment cases for the proposition that “the employee's right to privacy must be weighed against the government's interest in testing the employee for drugs” before concluding that the State has a “compelling interest” in ensuring integrity of prison employees that outweighs the “privacy rights” of those employees).

Goodell argues that strict scrutiny applies to his constitutional claim. As a matter of federal constitutional jurisprudence, “[w]hen a state enacts legislation that infringes fundamental rights, courts will review the law under a strict scrutiny test and uphold it only when it is ‘narrowly tailored to serve a compelling state interest.’ ” Doe v. Moore, 410 F.3d 1337, 1343 (11th Cir. 2005) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)). “Strict scrutiny — which requires a restriction to be the least restrictive means of achieving a compelling governmental interest — is the most demanding test known to constitutional law.” Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 484, 145 S.Ct. 2291, 222 L.Ed.2d 643 (2025) (quotation marks omitted). Goodell cites Powell for the proposition that because the right to privacy is a fundamental right, any authority permitting the abrogation of a person's right to privacy will pass constitutional muster only if it “is shown to serve a compelling state interest and to be narrowly tailored to effectuate only that compelling interest.” 270 Ga. at 333, 510 S.E.2d 18. But Pavesich is impossible to read as supporting anything like strict scrutiny. The nuanced balancing that Pavesich counsels is unlike the blunt instrument of strict scrutiny, which places a heavy weight in every case on the side of the scales of the party asserting the right. Moreover, strict scrutiny did not exist when we decided Pavesich; instead, it emerged as a federal invention decades later. See Stephens v. State, 321 Ga. 651, 658 n.6, 916 S.E.2d 465 (2025) (observing that an “invitation to adopt strict scrutiny” in the context of state constitutional right to bear arms “is subject to special doubt[,]” given that “[f]ederal courts first came up with and applied strict scrutiny” in the 1960s, almost a century after Georgians ratified the constitutional language at issue in that case). Strict scrutiny thus is a nonobvious standard to apply to a unique state constitutional right that long predated it.

It is true that a handful of our right-to-privacy cases, including those involving medical records, use some of the language of strict scrutiny used by federal courts. See, e.g., King I, 272 Ga. at 790, 535 S.E.2d 492 (citing Powell for the proposition that “the prosecution can justify its invasion of Ms. King's privacy only by showing that it acted pursuant to a statute which effectuates a compelling state interest and which is narrowly tailored to promote only that interest”). But those decisions cannot reasonably be read as actually applying strict scrutiny; that line of cases ultimately allows the State to access medical records through use of search warrants, which cannot be said to be sufficiently narrowly tailored to meet strict scrutiny, as warrants may result in discovery of materials that are not necessary to satisfy the State's compelling interest. And at no point did those cases even mention the “least restrictive means” part of the strict scrutiny standard, which requires the challenged action to be the means of accomplishing a compelling interest that is least restrictive to the right infringed. See Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 607, 141 S.Ct. 2373, 210 L.Ed.2d 716 (2021) (“[u]nder strict scrutiny, the government must adopt ‘the least restrictive means of achieving a compelling state interest’ ” (quoting McCullen v. Coakley, 573 U.S. 464, 478, 134 S.Ct. 2518, 189 L.Ed.2d 502 (2014))). In short, notwithstanding that some of their language was imprecise, none of our medical-records cases actually applied strict scrutiny as it exists federally, and instead applied a version of Pavesich’s nuanced balancing test.

Nor do our decisions recognizing a right to privacy in other contexts support applying federal strict scrutiny to the claim at issue here. Zant v. Prevatte, 248 Ga. 832, 286 S.E.2d 715 (1982), a case decided just before the ratification of the 1983 Constitution in which this Court with little analysis affirmed an order denying the State's motion for authorization to force-feed an inmate on a hunger strike because the State had “not shown ․ a compelling interest in preserving [the inmate]’s life, as would override his right to refuse medical treatment,” has been cited by this Court as authority in support of a Georgia right to privacy. See Powell, 270 Ga. at 330, 510 S.E.2d 18 (relying on Zant, among other authorities, for the proposition that “[t]his Court has determined that a citizen's right of privacy is strong enough to withstand a variety of attempts by the State to intrude in the citizen's life”). But Zant was a decision of only federal constitutional law, as it cited only decisions of other states that in turn were rooted in federal constitutional law; Zant did not mention Pavesich or the Georgia Constitution, much less do any Georgia-specific analysis. See Zant, 248 Ga. at 834, 286 S.E.2d 715.

We have applied strict scrutiny (or something like it) to claims of a right to remove life support from one's child or ward who is incompetent, in a chronic vegetative state, and for whom there is no reasonable possibility of reattaining cognitive function, see In re L.H.R., 253 Ga. at 446, 321 S.E.2d 716, and from one's self when a competent adult, see McAfee, 259 Ga. at 580, 385 S.E.2d 651. We also have applied strict scrutiny to claims of a right of privacy in the context of state criminal prohibitions on private sexual activity under certain conditions. See In re J.M., 276 Ga. at 90, 575 S.E.2d 441; Powell, 270 Ga. at 333–36, 510 S.E.2d 18. But in none of those cases did we explain why that standard was appropriate under the Georgia Constitution. Instead, the only authorities we cited all ultimately traced back to federal law. See In re L.H.R., 253 Ga. at 440, 440, 446–47, 321 S.E.2d 716 (using “conflicting” and “compelling” state interest language interchangeably, while relying generally on New Jersey state case that in turn relied on federal constitutional privacy law); McAfee, 259 Ga. at 580, 385 S.E.2d 651 (quoting In re L.H.R. for notion that “a competent adult patient has the right to refuse medical treatment in the absence of conflicting state interest” before noting that the State conceded that “its interest in preserving life [did] not outweigh [the petitioner's] right to refuse medical treatment” (quotation marks omitted)); Powell, 270 Ga. at 333, 510 S.E.2d 18 (citing Zant, 248 Ga. 832, 286 S.E.2d 715, and Phagan v. State, 268 Ga. 272, 486 S.E.2d 876 (1997), both of which applied only the federal constitution, for the proposition that “a government-imposed limitation on the right to privacy will pass constitutional muster if the limitation is shown to serve a compelling state interest and to be narrowly tailored to effectuate only that compelling interest”); In re J.M., 276 Ga. at 90, 575 S.E.2d 441 (citing Powell for compelling state interest standard). Additionally, Powell, a key case on which Goodell relies, rooted its holding striking down the application of the state sodomy statute in certain contexts not only in the constitutional right to privacy, but in the Court's conclusion that the statute's reach in that regard “exceeds the permissible bounds of the police power.” 270 Ga. at 334, 510 S.E.2d 18. And not only does it appear that these decisions may have unthinkingly imported the federal concept of strict scrutiny into Georgia law, they did so despite Pavesich setting out a different analysis.

Moreover, even putting aside these possible shortcomings in the analytical rigor of our privacy jurisprudence, those cases outside of the medical-records context each addressed potential invasions of the Georgia constitutional right to privacy that were different in kind from the claim at issue here. Faithfully applying the balancing test that Pavesich requires means considering the nature and degree of the specific alleged invasion of privacy and the competing interests implicated by this case, rather than transposing standards from contexts that do not present the identical set of competing rights and interests. Here, given the broad language employed in Pavesich about the scope of the right, applying strict scrutiny in the civil discovery context would risk swallowing the entire civil discovery process, as litigants might claim protection from discovery of a broad range of information that might fairly be deemed private, such as school records, financial records, or personal diaries — because, in the words of Pavesich, the right to privacy in the abstract encompasses “a right to enjoy life in any way that may be most agreeable and pleasant to him, according to his temperament and nature,” including a “desire to live a life of seclusion[.]” 122 Ga. at 195–96, 50 S.E. 68. We thus leave strict scrutiny to the privacy contexts in which we have applied it and do not apply it here.

Although Moulton does not expressly agree with Goodell that strict scrutiny is the proper standard to apply here, neither does she articulate a clear alternative. Given that Pavesich defines the right that Goodell seeks to assert here, we conclude that the proper approach is one consistent with that case. As outlined above, that necessarily involves an “elastic,” nuanced, case-by-case balancing of competing interests by the trial court. In this case, that would involve balancing Goodell's claimed right of privacy in his medical records against Moulton's interest in seeking a remedy for damages she has allegedly suffered and her need for the records to support her claims, as well as any interest the State may have. And due regard must also be given to the public's rights to open courtrooms and accessible court records.

This approach recognizes Pavesich’s focus on the right to privacy that highlights the right to avoid unwanted public attention:

All will admit that the individual who desires to live a life of seclusion can not be compelled, against his consent, to exhibit his person in any public place, unless such exhibition is demanded by the law of the land. He may be required to come from his place of seclusion to perform public duties[ ] — to serve as a juror and to testify as a witness, and the like; but when the public duty is once performed, if he exercises his liberty to go again into seclusion, no one can deny him the right. One who desires to live a life of partial seclusion has a right to choose the times, places, and manner in which and at which he will submit himself to the public gaze. Subject to the limitation above referred to, the body of a person can not be put on exhibition at any time or at any place without his consent. The right of one to exhibit himself to the public at all proper times, in all proper places, and in a proper manner is embraced within the right of personal liberty. The right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law[,] is also embraced within the right of personal liberty. Publicity in one instance and privacy in the other is each guaranteed. If personal liberty embraces the right of publicity, it no less embraces the correlative right of privacy; and this is no new idea in Georgia law.

Pavesich, 122 Ga. at 196, 50 S.E. 68. This balancing-of-interests approach is consistent with permitting a party in civil litigation to compel limited disclosure of private records for which they have shown a litigation need, subject to an appropriate protective order that ensures the records do not unnecessarily become public.

(c) Neither the trial court nor the Court of Appeals applied the correct standard, so we remand.

Neither the trial court nor the Court of Appeals conducted an analysis like that here. The trial court first quoted Martin v. Fulton County Board of Registration and Elections, 307 Ga. 193, 218, 835 S.E.2d 245 (2019), for the proposition that “[a] trial court's substantial discretion over the discovery process includes balancing competing interests related to a party's discovery requests.” But the trial court then merely recognized that Goodell had a right to privacy in the records and information at issue, before proceeding to explain why he had not waived that right in the manner argued by Moulton. Despite its statement that it was “balancing competing interests,” the trial court did not consider whether Moulton or the State had any interests that might outweigh Goodell's privacy right in the records and information at issue for purposes of civil discovery, even with some sort of protective order in place. Merely recognizing that Goodell had a right to privacy without actually balancing (or even recognizing) competing interests is not the sort of analysis Pavesich calls for.

The Court of Appeals was closer to the correct approach, invoking language that may be traced to Pavesich to the effect that the right to privacy “must be kept within its proper limits, and in its exercise must be made to accord with the rights of those who have other liberties, as well as the rights of any person who may be properly interested in the matters which are claimed to be of purely private concern.” Moulton, 375 Ga. App. at 742, 917 S.E.2d 396 (quotation marks omitted). See also Pavesich, 122 Ga. at 201, 50 S.E. 68. But the Court of Appeals erred where it declared elsewhere in its opinion that “the motion and hearing were sufficient due process to meet the requirements of Goodell's right to privacy.” Moulton, 375 Ga. App. at 742, 917 S.E.2d 396. This was incorrect — affording a party procedural due process is not equivalent to protecting substantive rights protected by Paragraph I. See generally Venticinque v. Lair, 323 Ga. 169, 177 n.7, 924 S.E.2d 312 (2025) (Peterson, C.J., concurring) (distinguishing between procedural due process and substantive due process). The provision of notice and a hearing does not answer the question of what standard is to be applied in that hearing, i.e., whether other interests can justify infringement upon a substantive right like the right to privacy.⁸

Given that the Court of Appeals's opinion in this matter also directed the trial court to enter “any necessary qualified protective orders,” we emphasize that use of such an order does not obviate the need to consider Goodell's constitutional privacy right as balanced against competing interests. Relying in part on Baker and Moreland v. Austin, 284 Ga. 730, 670 S.E.2d 68 (2008), Moulton suggests that a qualified protective order may be sufficient to protect Goodell's rights. But those cases make clear that in the medical-malpractice context, the plaintiff generally has waived her state law right to medical privacy by placing her condition at issue, such that under Georgia law defense counsel generally may engage in ex parte communications with the patient's treating providers. See Baker, 288 Ga. at 337, 703 S.E.2d 601; Moreland, 284 Ga. at 732, 670 S.E.2d 68. The Health Insurance Portability and Accountability Act (HIPAA) preempts Georgia law in that regard by placing more onerous federal regulatory requirements on defense counsel notwithstanding that waiver of state law rights, requiring defense counsel to comply with the statute by, as one option, obtaining a qualified protective order that limits use of the health information obtained and requires the return or destruction of the information at the end of the litigation. See id. at 337–38, 703 S.E.2d 601; 45 CFR 164.512(e)(1)(v). Thus, compliance with HIPAA does not answer the question of whether the Georgia right to privacy has been violated. Indeed, in Baker, we held that the qualified protective order at issue was too broad because it was not limited to matters as to which the plaintiff-patient had waived his right to privacy. 288 Ga. at 338, 703 S.E.2d 601.

Given Pavesich’s reliance on the possibility that newspaper publication of the petitioner's image in that case could lead to widespread distribution of that image, it stands to reason that the appropriate constitutional balancing could take into account whatever restrictions might be put in place to limit distribution or other usage of Goodell's medical information and documents. In that regard, HIPAA regulations could provide a template of sorts here. But use of such a qualified protective order — something that may be used to satisfy a federal regulatory requirement, usually after any state privacy right has been waived — is not necessarily sufficient and cannot by itself answer the question of whether the compelled disclosure of confidential medical records in the context of civil litigation violates the patient's Georgia constitutional right to privacy.⁹ Balancing of the competing interests under Pavesich is required.¹⁰

Neither the trial court nor the Court of Appeals balanced the competing interest at stake here in the light of the principles we outline today consistent with Pavesich. Accordingly, we vacate the Court of Appeals opinion and remand for that court to remand the case to the trial court for it to undertake that proper balancing in the first instance.¹¹

Judgment vacated and case remanded.

FOOTNOTES

1.   Specifically, Goodell denied the allegation that unbeknownst to Moulton, he was infected with herpes “during part of [sic] all of the parties’ relationship.”

2.   The trial court noted that OCGA § 24-12-10(1) defines “confidential or privileged” for purposes of Chapter 12, Article 2 of the Evidence Code to mean the “protection afforded by law from unauthorized disclosure, whether the protection is afforded by law as developed and applied by the courts, by statute or lawful regulations, or by the requirements of the Constitutions of the State of Georgia or the United States” and also provides that the term “includes protection afforded by law from compulsory process or testimony.”

3.   “The disclosure of confidential or privileged medical matter constituting all or part of a record kept by a health care facility, a nurse, or a physician, pursuant to laws requiring disclosure or pursuant to limited consent to disclosure, shall not serve to destroy or in any way abridge the confidential or privileged character thereof, except for the purpose for which such disclosure is made.” OCGA § 24-12-11.

4.   “Persons to whom confidential or privileged medical matter is disclosed in the circumstances described in Code Section 24-12-11 shall utilize such matter only in connection with the purpose or purposes of such disclosure and thereafter shall keep such matter in confidence. However, nothing in this article shall prohibit the use of such matter where otherwise authorized by law.” OCGA § 24-12-12.

5.   Paragraph XIII provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized.”

6.   The Baker Court did not consider or decide the extent to which records as to which the right to privacy was not waived might nevertheless be discoverable.

7.   Our leading case applying Pavesich before adoption of the 1983 Constitution similarly emphasized the importance of balancing the right against the interests of others. See Gouldman-Taber Pontiac, Inc., 213 Ga. at 684, 100 S.E.2d 881 (“The right of privacy is not absolute, but is qualified by the rights of others.”).

8.   We are at least partially to blame for the Court of Appeals's problematic statement, as it can be traced back to our own jumbling together Fourth Amendment concepts, procedural due process, and tiers of scrutiny in King I and King II. In King I, we relied on procedural due process case law to conclude that a statute governing subpoenas of medical records to health care providers cannot constitutionally be applied to permit the State to subpoena a criminal defendant's medical records “in the absence of waiver and without notice to the accused or an opportunity to object[.]” King I, 272 Ga. at 792–94, 535 S.E.2d 492 (citing, among other authorities, Reinertsen v. Porter, 242 Ga. 624, 250 S.E.2d 475 (1978), which involved a claim of a federal and state due process violation in the towing and impoundment of cars without notice and a hearing). In King II, we held that use of a search warrant to obtain such records was permissible because a warrant requires a judge's finding of probable cause (obviously a Fourth Amendment concept) and that procedure was “narrowly tailored to satisfy the State's compelling interests.” King II, 276 Ga. at 127–29, 577 S.E.2d 764. Here, the Court of Appeals cited its own decision in Ussery as authority suggesting that notice and an opportunity to be heard are sufficient to protect the substantive right to privacy. See Moulton, 375 Ga. App. at 742 n.12, 917 S.E.2d 396. In Ussery, which involved medical records in the civil context, the Court of Appeals cited King I for the proposition that “a patient must be afforded notice and an opportunity to object prior to the disclosure of his medical records via civil discovery requests.” 289 Ga. App. at 269, 656 S.E.2d 882. But Ussery is different in that the persons whose privacy rights were at issue there were not parties to the case, so provision of notice and opportunity to be heard was merely a first step, albeit a crucial one, in considering their rights. The Court of Appeals stated that the trial court's order there provided for “further review” upon the nonparty's objection, and the Court of Appeals gave no indication about what subsequent analysis by the trial court had taken place or was required. Id. at 270, 656 S.E.2d 882. Ussery is not authority for the notion that the existence of notice and a hearing is sufficient to conclude that an order requiring disclosure of medical records in civil discovery does not violate the substantive right to privacy.

9.   When the Court of Appeals in Harris v. Tenet Healthsystem Spalding, Inc., 322 Ga. App. 894, 746 S.E.2d 618 (2013), cited by Moulton, declared that “the plaintiffs’ privacy right as to the decedent's mental conditions is adequately safeguarded by the terms of the qualified protective order,” it presumably was speaking more colloquially about the plaintiffs’ “privacy right” under the federal regulations, having already noted that a plaintiff waives her “right to privacy” as a matter of Georgia law once she puts her medical condition at issue in a case. Id. at 896–98, 746 S.E.2d 618.

10.   Use of a broad protective order also may go too far. In the trial court's balancing of the various rights and interests, the rights of the parties and the public to open courts and accessible court records is an important consideration. This interest in openness may be implicated with greater force — including federal constitutional implications — as the case moves toward trial and documents obtained in discovery may be filed with the court. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (plurality) (“Whether the public has a right to attend trials of civil cases is a question not raised by this case, but we note that historically both civil and criminal trials have been presumptively open.”); Undisclosed LLC v. State, 302 Ga. 418, 421–22, 807 S.E.2d 393 (2017) (discussing common-law right of access to court records embodied in Ga. Unif. Super. Ct. R. 21); Atlanta Journal v. Long, 258 Ga. 410, 414–15, 369 S.E.2d 755 (1988) (reversing order sealing pre-judgment records, because trial court's findings and conclusions did not explain “how the embarrassment the appellees may suffer differs in degree or kind from that of parties in other civil suits” and thus were inadequate under Ga. Unif. Super. Ct. R. 21 (footnote omitted)); Ga. Unif. Super. Ct. R. 22(A) (noting in context of use of electronic devices and recording in courtrooms that “[o]pen courtrooms are an indispensable element of an effective and respected judicial system” and that “[i]t is the policy of Georgia's courts to promote access to and understanding of court proceedings not only by the participants in them but also by the general public and by news media”). See also Ga. Gazette Pub. Co., 248 Ga. at 529, 284 S.E.2d 386 (noting that discovery materials “are not matters of public record until filed with the court”). Thus, although a protective order limiting distribution or other usage of the information and documents at issue may be appropriate before trial, that does not necessarily mean that the courtroom should be closed to the public for the presentation of the private records and information.Additionally, trial courts may be able to consider an alternative to disclosure of requested documents and information protected by the right to privacy. It is possible that in lieu of production of the records, the party claiming the privacy right could stipulate to the facts that the party seeking the records claims they are relevant to proving.

11.   We included in our certiorari questions a question about waiver. The parties appear to agree that the right to medical privacy can be waived. What remains is a very fact-bound question of whether Goodell waived that right here on any of the theories propounded by Moulton. The trial court rejected Moulton's waiver argument, albeit without thoroughly analyzing all of the permutations of that argument. The Court of Appeals did not address waiver directly, given its conclusion that Moulton was entitled to the materials at issue regardless of any waiver. The fact-bound question of waiver presented here would not ordinarily meet our criteria for granting certiorari, particularly given the lack of a Court of Appeals decision on that point in this case. See Ga. Sup. Ct. R. 40. We leave it to the lower courts to address waiver as necessary on remand.

Peterson, Chief Justice.

All the Justices concur.