Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
Liability for Failing to Redact Personally Identifiable Information from E-filings?
August 24, 2010
We just returned from the Outer Banks and frankly, I'd rather be gazing at the ocean than at the brick office building across the street. All good things must end and I am once again in the salt mines and blogging.
I was recently appointed by the Chief Justice of the Virginia State Supreme Court (he did politely ask first, but I have always regarded a request by the Chief Justice as tantamout to an order) to the Statewide Bar Advisory Commission on Virginia's Electronic Filing project. So I was interested yesterday to see an article on the redaction of personally identifiable information in e-filed documents.
As author Shari Claire Lewis points out, it is the lawyer's duty to make the redactions of personally identifiable information required by F.R.C.P. 5.2. As she also notes, we haven't yet seen a case where a lawyer's failure to redact has resulted in legal liability, though it is quite clear that a lawyer has a duty to protect certain information from public disclosure.
How will it happen? Who knows? Perhaps an angry ex-lover will find a woman's address and rape or murder her. Perhaps a woman who has lost custody of her children will find their location and kidnap them. Perhaps a health condition will cause someone to lose their employment. Russian hackers (who seem to be pretty good at this) may raid a particularly fat bank account.
So far, knock wood, we just haven't had a serious incident yet. But one is sure to come – so lawyers should take redaction very seriously indeed, lest they become the test case for legal liability.
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