“The speed at which information travels in the age of electronic access could not have been conceived by John Stuart Mill, Jeremy Bentham or even the drafters of Rule 76a. Just take one example from recent events. There was no more closely guarded secret than the helicopter attack that targeted Osama Bin Laden. But a Pakistani IT consultant named Sohaib Athar with the Twitter handle ReallyVirtual unwittingly “live-tweeted” the helicopter assault when he heard the explosions and gunfire. Donald Rumsfeld’s former Chief of Staff “tweeted” the fact of Bin Laden’s death before it was announced by President Obama. The official announcement came at 10:35 p.m. and the location of Bin Laden’s lair was on Google Maps less than an hour later.”
This description was taken from an upcoming paper and presentation by Kendall Gray—a partner at Andrews Kurth LLP—prepared for the 21st Annual Conference On State and Federal Appeals at the University of Texas at Austin. In his blog, the Appellate Record, and certainly in his upcoming presentation, Gray warns of the various privacy issues that emerge with electronic, or e-filing, and the lack of a secure, online repository for confidential information.
Although there are federal guidelines in place to safeguard against public access to sensitive and confidential materials filed electronically, not all states have consistent or similar e-procedures. Gray points out that Texas, for one, is a state without consistent or clear rules regarding confidential e-filing.
There are, however, steps a law firm can take to prevent the accidental public disclosure of confidential client information via e-filings. First, be sure that your paralegals and legal assistants are aware of federal and state regulations regarding e-filings.
Second, standardize e-filing procedures according to pertinent regulations. In the case where your firm practices in a state without explicit rules, define an internal, office-wide policy to maintain consistency. In addition, produce a procedure checklist to ensure all documents are properly filed (a checklist also serves as a handy training tool for future new hires). Finally, consider including some of the following checklist items to ensure your clients’ personal or professional information is properly protected.
- Assume all of your firm’s e-filings can be accessed freely over the Internet (in some states, this may prove literally true). Only include personal or confidential information that is absolutely necessary and mandated by the court.
- Federal Rule of Civil Procedure 5.2 states that a party or non-party making an 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.
- After you’ve drafted your legal document under the pertinent rules, have a paralegal or legal assistant highlight each of these personal disclosures for a secondary attorney review, then redact. Repeat this same step with the redactions to prevent potentially serious oversights.
- E-file under seal when in doubt.
Within a nanosecond, you can send a confidential legal document into cyberspace. Bear in mind, at practically the same speed, thousands of public and prying eyes are already viewing it.