Breaching Confidentiality

November 22, 2016 § 1 Comment

Suppose your client gave you her income tax return in confidence. You then make 20 unredacted copies and drive down the street throwing them at passers-by. Have you violated your client’s confidentiality?

Or suppose that your client gave you those same tax returns with the understanding that they would be disclosed in discovery in the course of her divorce. You send them unredacted to opposing counsel in answer to a request for production. Counsel opposite makes a copy for his client, who throws it in the back of his pickup. Later, it blows out as he zooms down the interstate, scattering your client’s name and SSN to the four winds. Have you violated your client’s confidentiality?

Or you simply file those tax returns unredacted on MEC. Have you violated your client’s confidentiality?

I think the undebatable answer in each scenerio is a resounding YES. It is you who chose to send the documents out into the cold, cruel, identity-stealing world unredacted, contrary to MEC Section 9. Remember, MEC says that if you file unredacted documents you have waived confidentiality; did your client authorize you to do that? Did your client even know you were going to do that?

I know, MEC applies only to electronic filings. True. But the principle should be the same in everything you do with your client’s sensitive documents and things, whether in paper discovery, exhibits in court, correspondence, and on and on. Your clients want and expect you to protect their confidentiality.

We get all manner of things attached to motions in this court. Our standard practice is to turn the paperwork over to the staff attorney who then uses the unprinted-on backsides to print internal memos, cases, etc. A few days ago, I finished a memo and noticed that it was printed on the back of a copy of a federal tax return. The names and SSN’s of the taxpayers were unredacted. Those were immediately shredded. Had I not caught that those folks’ names and SSN’s would simply have gone into the trash, and thence to a landfill, perhaps to be picked up by a breeze and deposited into the clutches of a n’er-do-well. Whoever filed that return unredacted is responsible for its consequences.

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