Adopted Rule - 20090208

(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper 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, a financial-account number, ~~or, in a criminal case, the home address of an individual,~~ a party or nonparty making the filing must 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~~; and~~

~~(5) in a criminal case, the city and state of the home address~~.

(b) Responsibility of Party or Nonparty to Redact. A party or nonparty making a filing with the court is solely responsible for ensuring that protected information does not appear on the filing.

~~(b)~~(c) Exemptions from the Redaction Requirement.

The redaction requirement does not apply to the following:

(1) a financial-account number or real property address that identifies the property allegedly subject to forfeiture in a forfeiture proceeding;

(2) the record of an administrative or agency proceeding;

(3) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed;

(4) a filing covered by Rule 3.4~~(c)~~(d);

(5) a court filing that is related to a criminal matter and that is prepared before the filing of a criminal charge or is not filed as part of any docketed criminal case;

(6) an arrest or search warrant; ~~and~~

(7) a charging document and an affidavit filed in support of a charging document;

(8) the name of an individual known to be a minor when the minor is a party, and there is no statute, regulation or rule mandating nondisclosure; and

(9) a defendant's date of birth in a court filing that is related to criminal matters, non-criminal motor vehicle and game and fish matters, and infractions.

~~(c)~~(d) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.

~~(d)~~(e) Protective Orders. For good cause, the court may by order in a case:

(1) require redaction of additional information; or

(2) limit or prohibit a nonparty’s remote electronic access to a document filed with the court.

~~(e) Option for Additional Unredacted Filing Under Seal.~~ ~~A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.~~

(f) ~~Option for~~ Filing a ~~Reference List~~Confidential Information Form.

(1) In General. A filing that contains redacted information ~~may~~must be filed together with a ~~reference list~~confidential information form (shown in Appendix H) that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The ~~list~~form ~~must be filed under seal and may be amended as of right~~will be confidential except as to the parties or as the court may direct. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.

(2) Defendant Information. ~~In a criminal case, the prosecutor must file a reference list that includes the defendant’s social security number, birth date and street address.~~ In a criminal case, the prosecutor must file a confidential information form that includes, when known, the defendant's social security number.

(g) Non-conforming Documents.

(1) Waiver. A person waives the protection of Rule 3.4(a) as to the person’s own information by filing it without redaction and not under seal.

(2) Sanctions. If a party fails to comply with this rule, the court on motion of another party or its own motion, may order the pleading or other document to be returned to the party for reformation prior to filing, ~~be reformed~~ with an extension of any deadline to complete the filing.. If the document has been filed, and an order to reform is not obeyed, the court may order the document stricken.

EXPLANATORY NOTE

Rule 3.4 was adopted effective March 1, 2009. Rule 3.4 was amended, effective March 15, 2009; March 1, 2010.

Parties should limit the amount of protected information they include in court filings. This rule requires parties to redact protected information when its inclusion in a filing cannot be avoided.

This rule's redaction requirements are intended to exclude protected information from public disclosure. Unless a document is also placed in a non-restricted file, redaction of documents filed in cases that are confidential by law or rule is not required.

The term "financial-account number" includes any credit, debit or electronic fund transfer card numbers, and any other financial account number.

Documents containing redacted protected information must be filed together with a confidential information form under subdivision (f) when a party is required by statute, policy or rule to include the protected information in the document. For example, N.D.C.C. § 14-05-02.1 requires a divorce decree to contain the social security numbers of the parties to the divorce. Under subdivision (f), a party to a divorce case may comply with this statute and the redaction requirements of this rule by filing a confidential information form and a redacted version of the decree in the public part of the file.

Subdivision (a) was amended, effective March 1, 2010, to eliminate the requirement to redact addresses in criminal matters.

Subdivision (b) was adopted, effective March 1, 2010, to indicate it is the responsibility of a party or nonparty making a court filing to refrain from including protected information in the filing.

The clerk of court is not required to review a document filed with the court for compliance with this rule.

Subdivision (c), formerly subdivision (b), was amended, effective March 1, 2010, to add a redaction exemption for the name of a minor when the minor is a party and there is no statute, regulation or rule mandating nondisclosure of the minor's name.

Subdivision (c), formerly subdivision (b), was amended, effective March 1, 2010, to add a redaction exemption for a defendant's date of birth in a court filing that is related to criminal matters, non-criminal motor vehicle and game and fish matters, and infractions.

Subdivision (f) was amended, effective March 1, 2010, to require that state's attorneys file confidential information forms containing certain defendant information when known.

Subdivision (g) was amended, effective March 1, 2010, to allow courts to order reformation of documents not in conformity with this rule prior to filing.

Sources: Joint Procedure Committee Minutes of September 24-25, 2009, pages 3-7; May 21-22, 2009, pages 28-44; January 24, 2008, pages 9-12; October 11-12, 2007, pages 28-30; April 26-27, 2007, page 31.

Statutes Affected:

Considered: N.D.C.C. § 14-05-02.1.

Cross Reference: N.D.R.Ct. 3.1 (Pleadings); N.D. Sup. Ct. Admin. R. 41 (Access to Judicial Records).