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November 28, 2007

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Private Practice Court Rules Regarding
Private Information in Filings and Pleadings
By Richard P. Ormond*
Buchalter Nemer

Court filings, in many instances, contain critical personal information about the participants to a lawsuit (and their relatives, business partners, etc.).  This information has now become a regular target of identity thieves, web marketers, and other opportunists hoping to capitalize on the abundant personal information now available through on-line Court records.  To this end, over the past five years, California and the Federal Courts have made a number of changes to its filing rules controlling the types of personal information found in Court pleadings, in an attempt to stay one step ahead of these information “vultures”.

PRIVACY CONSIDERATIONS IN FEDERAL COURTS

Federal Courts have developed privacy restrictions because of the ease of access via CM/ECF and/or WebPACER.  The Central District of California, issued GENERAL ORDER No. 07-08, entitled ORDER AUTHORIZING ELECTRONIC FILING dated October 1, 2007 (in compliance with the August 2005 Judicial Conference of the United States Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure), which proposes that a party wishing to file a pleading containing certain personal data identifiers (listed below) is required to redact all pleadings and exhibits, as follows:
  • Social Security Numbers: If an individual’s Social Security Number must be included in a document, only the last four digits of that number should be used.
  • Taxpayer Identification Numbers: If a taxpayer identification number must be included in a document, only the last four digits of that number should be used.
  • Names of Minor Children: If the involvement of a minor child must be mentioned, only the initials of that child should be used.
  • Dates of Birth: If an individual’s date of birth must be included in a document, only the year should be used.
  • Financial Account Numbers: If financial account numbers are relevant, identify the name or type of account and the financial institution where maintained and only indicate the last four digits of the account number.
  • Home Address: If a home address must be included, only the city and state should be listed.
  • Additional Information: For good cause, the Court may require redaction of additional information.

In most circumstances, where the redacted information is pertinent and/or critical to the action, the filing party is required to file an unredacted document under seal or file a reference list under seal. The reference list should contain the complete personal data identifiers and the redacted identifiers used in their place in the filing.  Upon a showing that the redacted information is both relevant and legitimately needed, the Court may, in its discretion, order the information disclosed to counsel for all parties.  For a complete copy of the General Order check the Central District Court’s website here.

Most Federal Districts have adopted similar requirements and it is likely that these requirements will be adopted as part of the Federal Rules of Civil Procedure as Rule 5.2 by the end of this year.


PRIVACY CONSIDERATIONS IN CALIFORNIA COURTS

California Rules of Court (“CRC”) 2.503 is intended to provide the public with reasonable access to electronic trial Court records, while protecting privacy interests. These rules were initially based on the conclusion of the Court Technology Advisory Committee that electronic records differ from paper records in three important respects: (1) ease of access, (2) ease of compilation, and (3) ease of wholesale duplication.

The rules are also based on the committee’s conclusion that the judiciary has a responsibility to balance accessibility and privacy concerns when disclosing, granting access to, or distributing electronic data found in Court records.  The rules provide that, to the extent feasible, Courts must provide electronic access both remotely and at the Courthouse to the registers of action, calendars, indexes, and all civil case records—except that remote electronic access is not available for the following proceedings: family code; mental health; juvenile Court; criminal; guardianship or conservatorship; and civil harassment.1   Additionally, pursuant to CRC 2.507 Courts are precluded from including on its calendars, indexes and registers of actions: Social Security numbers, financial information, arrest warrant information, search warrant information, victim information, ethnicity, age, gender, government issued identification cards, driver’s license numbers and date of birth. 

The California Rules of Court (see CRC 2.503) dictate that an electronically filed document is a public document at the time it is filed unless it is filed under seal (see CRC 2.550-2.551) or made confidential by law (see CRC 2.550).  While the California Rules of Court identify specific restrictions that apply to extraordinary criminal matters with records available electronically, some Courts, such as the Santa Barbara Superior Court (see Electronic Filing and Service Standing Order dated August 28, 2006), have adopted these rules for all matters, civil and criminal, and places the burden on the filing party, not the Court to maintain compliance, as follows:

  • Social Security numbers. If an individual’s Social Security number must be included in a pleading or other paper, only the last four digits of that number should be used.
  • Names of minor children. If the involvement of a minor child must be mentioned, only the initials of that child should be used.
  • Dates of birth. If an individual’s date of birth must be included in a pleading or other paper, only the year should be used.
  • Financial account numbers. If financial account numbers are relevant, only the last four digits of these numbers should be used.

This specific information must not be present in pleadings and other papers filed with the Court, including all exhibits, whether filed electronically or in paper, unless otherwise ordered by the Court. 

Various California Courts have issued similar standing orders requiring compliance with the California Rules of Court and, in some instances, have additional requirements that litigation participants must follow in both civil and criminal matters.  Check the respective Courts’ websites for these standing orders and, of course, check the Courts’ respective local rules.
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1  See Public Access to Electronic Court Records, Court Technology Advisory Committee, pp. 23-24 (Oct. 2001) (“In drafting the rules, the committee considered restricting remote access to specific data elements in a Court record, such as a party’s financial account numbers, but concluded that the problem with this approach is one of practical implementation: it would require someone in the clerk’s office to carefully read each document filed with the Court to ascertain whether there are any matters in the document that need to be redacted, and might subject the Courts to liability for failing to redact all confidential data elements. Therefore, the committee concluded that the more workable approach is to limit remote electronic access to certain categories of cases….”).
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Richard P. Ormond is a Senior Counsel in Buchalter Nemer's Los Angeles office. He has expertise in intellectual property litigation (including patent, copyright, trademark, trade secret and trade dress issues), e-discovery, remedies and receivers, and business litigation.  Representative of his clients are technology companies, national financial institutions, international apparel companies, health care companies, state and federal receivers and many entrepreneurs. He can be reached at rormond@buchalter.comor 213.891.5217


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