TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 5.1, N.D.R.Civ.P., Privacy Protection for Filings Made with the Court; Rule 49.1, N.D.R.Crim.P., Privacy Protection for Filings Made with the Court; Rule 25, N.D.R.App.P., Filing and Service; Rule 3.1, N.D.R.Ct., Pleadings
Effective March 1, 2005, Rule 3.1 was amended to include measures to protect personal information in documents filed with the court. The amendments were based on federal guidelines developed to help federal courts conform to the E-Government Act.
The federal courts have now developed formal rules on protecting private information in court filings. These rules, Fed.R.Civ.P. 5.2, Fed.R.Crim.P. 49.1, and Fed.R.App.P. 25, take effect on December 1, 2007.
The new federal protections are slightly more extensive than the protections that now exist under Rule 3.1. In addition to redaction of social security numbers and financial account numbers, the new rules would require use of birth year rather than birth date and use of a minor's initials rather than the full name.
The Committee may wish to discuss whether adoption of the additional protections is appropriate. For example, organizations that use court data typically require either a social security number or birth date in order to confirm the identity of an individual, and without access to either of these identifiers, mistakes could be made in linking the name of a person to a criminal conviction or bad debt.
As under the existing rule, the new rules would require parties to file redacted documents and give parties the option of filing non-redacted documents under seal. In previous discussions of this issue, Committee members argued that having non-redacted documents in the court file is particularly important in family law cases, especially since having information such as social security numbers is required by statute in some family law documents.
The new federal rules provide the additional option of filing a reference list where the party could create a unique identifier to match each item of protected information. The party could then use the unique identifier in documents rather than redacting them. This is similar to the approach used in Minnesota courts to protect personal information and was an option discussed by the Committee while formulating the protections in Rule 3.1.
Proposed civil rule 5.1 and criminal rule 49.1 are very similar. The criminal rule contains some additional items that are exempt from the redaction requirement. Given that North Dakota has rules of court that are applicable to criminal, civil and appellate cases, it may be desirable to meld the different rules into a new rule of court rather than creating new civil and criminal rules and amending an appellate rule. If the Committee decides that adopting the new federal privacy provisions would be desirable, it may wish to discuss whether they should be placed in a single rule.
Proposals that would create a new N.D.R.Civ.P. 5.1 and N.D.R.Crim.P. 49.1 and that would amend N.D.R.App.P. 25 and N.D.R.Ct. 3.1 are attached.