• March 19, 2015

Minnesota Litigator - federal rule changesWe are moving rapidly towards e-filing and digitization of Minnesota court filings.

More records will be accessible via home computers. Many of those that aren’t available that way will be available from courthouse computers. And from any courthouse computer, so that documents filed in, say, a case docketed in Ramsey County will be available from a courthouse computer anywhere in the state.

So case records will be much more accessible to everyone. With all the good that brings. But all the risks and dangers involved as well.

Some of the proposed amendments to the rules of civil procedure and general practice aim to fine-tune the balance between accessibility and privacy.

One area has received particular attention: restricted identifiers. Restricted identifiers are social security numbers, employer identification numbers and financial account numbers.

The proposed rules take a three-pronged approach to regulation of restricted identifiers.

First, the amendments discourage the use of restricted identifiers whenever they can be avoided. The advisory committee says that it is rare that restricted identifies are really needed in filings. Sometimes pleadings must include specific identifiers. But they should be avoided where not required by statute or needed for adjudication. So, for example, a filing could refer to “Wells Fargo Joint Checking” rather than a specific account number.

Second, a proposed amendment emphasizes the existing requirement that restricted identifiers may be submitted only on a Confidential Information Form (Form 11.1) or on Confidential Financial Source Documents (under rule 11.03). We will have to certify when filing that the documents submitted contain no restricted identifiers except as permitted by the rules. If court administrators discover that a document with restricted identifiers is improperly submitted, they may file it with a “temporary non-public status” to allow the filing of a redacted document.

Last, proposed amendments to Rule 11 of the Rules of Civil Procedure say that documents that are wrongly submitted with restricted identifiers may be a basis for rule 11 sanctions. This last provision sparked some controversy. The MSBA submitted comments on the proposed rules opposing sanctions based on the submission of restricted identifiers not submitted in a confidential way. It does not seem likely, though, that accidental submission of restricted identifiers will lead to sanctions, and it seems that the proposed provision is aimed at repetitive and abusive submissions, although, of course, it is never possible to predict how individual judges will react.

Watch for action as the Supreme Court adopts rule amendments soon.

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