The Expectation of Privacy

May 4, 2015 § 4 Comments

The MSSC last Thursday published a new MRCP 5.1 that imposes some important privacy protections to all filings in chancery court — both electronic and paper. Here is the new rule, which went into effect April 30, 2015:

RULE 5.1. PRIVACY PROTECTION FOR FILINGS MADE WITH THE COURT

(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only:

(1) the last four digits of the social-security number and taxpayer-identification number;

(2) the year of the individual’s birth;

(3) the minor’s initials; and

(4) the last four digits of the financial-account number.

(b) Exemptions from the Redaction Requirement. The redaction requirement does not apply to the following:

(1) a financial-account number that identifies the property allegedly subject to forfeiture in a forfeiture proceeding;

(2) the record of an administrative or agency proceeding; and

(3) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed.

(c) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.

(d) Protective Orders. For good cause, the court may by order in a case:

(1) require redaction of additional information; or

(2) limit or prohibit a nonparty’s remote electronic access to a document filed with the court.

(e) Option for Additional Unredacted Filing Under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.

(f) Option for Filing a Reference List. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.

(g) Waiver of Protection of Identifiers. A person waives the protection of Rule 5.1(a) as to the person’s own information by filing it without redaction and not under seal.

These same restrictions, in slightly different form, are in Section 9 of the Electronic Courts Administrative Procedures. This amendment to the MRCP extends the existing electronic filing privacy protections to paper, or conventional, filings.

From a practice standpoint:

  • Tax returns need to be scrutinized carefully. It’s not enough to redact the taxpayers’ SSN’s at the top of the returns. The children’s names and SSN’s are also on the return. Schedule C may include a taxpayer ID number.
  • On 8.05’s, use the initials of the children and their ages rather than their full names and birth dates. As for the parties, again, use their ages and not birthdates. For financial accounts, use only the last four digits. Do not include taxpayer ID numbers anywhere.
  • If you slip up and include any of the proscribed information, you will be deemed to have waived the protection of the rule for your client. If that results in any damage due to identity theft or other misuse, you could be called to account.

The obvious purpose of this amendment is to prevent identity thieves from trolling for SSN’s and birthdates. Keeping the children’s names out protects them from predators.

This rule is in effect right now. School your staff in its requirements and begin observing them yourself. Discovery, particularly voluminous discovery, is typically chock full of this kind of private information. You need to be diligent to protect the interest of your clients.

 

§ 4 Responses to The Expectation of Privacy

  • Kristin Belvin says:

    I find it very odd there is not exemption for a minor defendant, as it will be impossible to serve a minor for a paternity or support action without using at least their full name.

    • Larry says:

      I have a lot of questions also, but we will have to see how this works out. I guess there will be lots of documents under seal.

  • John D. Smallwood says:

    Judge thanks for alerting members. A close reading of these 2 rules reveals a conflict: MEC Rule 9 (which mimics Federal court rules), says “shall refrain” from including the identifiers, whereas MRCP Rule 5.1 says “may” only include redacted identifiers which is for both electronic and paper filings. I have been and will continue to file per MEC Rule 9 which I believe is The Better Practice. – John Smallwood

    • Larry says:

      Thanks for pointing that out. I think yours is the better practice. Chancellor Frank McKenzie has been requiring this for years.

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