Consent to share DNA Test Results

by Kenneth H. Ryesky January 20th, 2016 10:19 am

Michael Cole swabbed his cheek and had Family Tree DNA (FTDNA) run a DNA test.  He then became exercised that (A) FTDNA posted his full DNA results on one of the FTDNA Project pages; and (B) shared his results with RootsWeb.


Cole is now the lead plaintiff in a class action lawsuit against Gene by Gene, Ltd. the actual legal name of the entity that does business as Family Tree DNA.  He has enlisted (or, perhaps, been enlisted by) Edelson, PC, a Chicago law firm that specializes in, among other things, class action litigation.  This is not necessarily a bad thing.  There are bona fide abuses whose resolution is best accomplished in the context of class action litigation.  Quite often, however, the lawyers for the plaintiffs are the disproportionate beneficiaries of class action litigation.  This posting posits no accusation or value judgment in such regard with respect to the subject litigation; as will be discussed presently, the litigation is likely far from finished and its outcome is not certain at this time.


Gene by Gene had purchased several liability insurance coverage policies from the Evanston Insurance Co.  Evanston sought to decline coverage, but the U.S. District Court for the Southern District of Texas has ruled that Evanston indeed has the duty to defend Gene by Gene under the policies.


Under insurance law, the duty to defend is broader than the duty to indemnify.  Evanston must engage an independent attorney to defend Gene by Gene; they cannot just assign their own in-house lawyers (which would constitute an obvious conflict of interest).  The lawyer they engage for Gene by Gene will have the duty to zealously advocate for Gene by Gene.


This case is likely to be in litigation for some time to come.  It may well set precedent for various issues, including but not limited to (1) what are the voluntary consent standards posting an individual's DNA on the Internet; (2) what are the permissible bounds for DNA testing firms to share their information with one another; (3) what actions must and must not be taken to safeguard the privacy of DNA test results; and (4) what is the value of genetic privacy.

One Response to “Consent to share DNA Test Results”

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