The following article originally appeared in the Bar Association of San Francisco Bulletin, Vol. 3, No. 7, July 2008.
Most attorneys are familiar with the new federal rules of electronic discovery. But they may be less familiar with local rules addressing privacy issues involving a court’s electronic files. Federal courts routinely make case file material available online. Some districts have adopted rules restricting a party’s filing of documents that contain privacy related data.
In the Northern District of California a party must refrain from including “personal data identifiers” in all pleadings and papers filed in the public file. See Northern District L.R. 3-17. These personal data identifiers include:
- social security numbers
- names of minor children
- dates of birth and
- financial account numbers
Where inclusion is necessary the filing party must use a “redacted identifier.” So, for instance, only the last four digits of a social security number may be used. Similar restrictions apply to the inclusion of a home address in criminal filings. A party who wishes to file unredacted identifiers may do so only under seal, or may file a “reference list” under seal containing the personal data identifiers and the redacted identifiers used in their place in the public filing. Either way, the party must file a redacted document for the public file. These restrictions apply regardless of whether the document is filed electronically or in paper.
Failure to comply with the rule can prove onerous. In a recent Northern District case, a party who filed an exhibit listing non-parties and unredacted social security numbers was ordered to contact each individual and advise them of the disclosure. Twenty years ago such restrictions would not have been necessary; a court would simply seal the document. Local rules such as this are undoubtedly only the beginning of evolving standards that attorneys will have to familiarize themselves with as they venture into the electronic age of lawyering.
Andrew I. Dilworth is a partner with Cooper, White & Cooper LLP, concentrating his practice in the areas of general business litigation, criminal defense, and professional responsibility. He serves as special counsel to his firm on ethics matters, and is an adjunct professor for the University of San Francisco School of Law where he teaches legal ethics.