Redacting Confidential Personal Information From Court Filings is Now Mandatory in New YorkPosted: March 28, 2015 Filed under: General Liability, New York Practice | Tags: Civil Procedure, Confidential Personal Information, New York Practice, New York Trial Courts, Redacting, Rule 202.5(e) Leave a comment
As of March 1, 2015, parties to litigation in New York Courts are required to redact confidential personal information (“CPI”) on any documents filed in the Supreme and County Courts. Given the number of deposition transcripts and Bills of Particulars that I have seen submitted without redacting personal information (such as social security number, taxpayer identification number, or birth date), it appears that many practicing attorneys have not received the memo.
To paraphrase the New Age Outlaws, “Oh you didn’t know, well then you better call somebody!”
Based upon the Administrative Order of the Chief Administrative Judge, redacting of CPI is now mandatory. Section 202.5(e) was added to the Uniform Civil Rules of the Supreme and County Courts and defines CPI as: (1) taxpayer identification numbers for an individual or entity, including social security numbers, employer identification numbers, and individual taxpayer identification number; (2) an individual’s date of birth; (3) the name of a minor; and (4) financial account numbers, including credit card, debit card, bank account, investment account, and/or insurance account numbers. See 22 N.Y.C.R.R. 202.5(e). In the case of the taxpayer identification numbers and financial account numbers, the last four digits need not be redacted. Id. Similarly, a minor may be identified by his initials. Id.
If any documents containing CPI are filed, the Court, on a motion or sua sponte, may (1) order the party to redact the CPI and resubmit the papers or (2) order the clerk to seal portions of the papers. Of course, if the CPI is “material and necessary to the adjudication” of the proceeding at issue, section 202.5(e) also provides procedures for applying for leave to file a confidential affidavit or affirmation containing the CPI along with the redacted version.
Section 202.5(e) was originally proposed by the Advisory Committee on Civil Practice in to the Chief Administrative Judge in April 2012 and was subsequently circulated for public comment.
Although this rule is new to New York, the federal courts and most state courts have long had such rules in place to protect the dissemination of personal information and to prevent identify theft. For example, Rule 5.2 of the Federal Rules of Civil Procedure became effective in December 2007 and Rule 1:38-7 of the New Jersey Court Rules became effective in September 2009.
While section 202.5(e) largely tracks its Federal Court counterpart, one interesting difference is that the Federal Rule allows a party to waive the protection of privacy: “A person waives the protection of Rule 5.2(a) as to the person’s own information by filing it without redaction and not under seal.” Fed. R. Civ. P. 5.2(h). As the Committee Notes explain, this section of the rule was not included to punish a party who inadvertently files a document without redacting information (as that party can seek relief from the Court), but was intended to permit a party to “waive the protection if it is determined that the costs of redaction outweigh the benefits to privacy.”
Redacting your client’s personal identifiers (or entering into protective orders) to prevent disclosure of private or confidential material through public court filings has always been a prudent course of action, but Section 202.5(e) now makes such an act mandatory for practitioners in New York.
Written by Danny C. Lallis
Danny is a Partner with Pisciotti Malsch, and his practice includes appeals, product liability, and commercial litigation.