Litigation Practitioners’ Confusion: Fla. R. Jud. Admin. 2.420 and 2.425 and the Improper Filing of Sensitive Information
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In the last few years, as identity theft and other cybercrimes have become more rampant, there has been a development in Florida law geared toward protecting litigation parties’ personal and private information. Florida court rules have evolved for that purpose.1 Now, there is confusion among litigation practitioners who believe that they have the ability to file a party’s “sensitive information” (defined by Florida Rule of Judicial Administration 2.425; for example, date of birth, Social Security number, and tax payer identification number) in the court record by requesting the clerk to deem that information confidential. However, filing certain sensitive information is explicitly forbidden, and other sensitive information may only be filed in strict limited format. This article explains the relevant rules, guides practitioners in what to do if a document is filed containing your client’s information, and proposes a solution to avoid future improper filings.
Protection of Sensitive Information Through Florida Rules of Judicial Administration
Litigation practitioners who, as part of their action or defense, need to assert allegations or incorporate exhibits containing a party’s sensitive information are relying on Fla. R. Jud. Admin. 2.420(d) as justification for filing that information in the court record along with a Notice of Confidential Information within Court Filings, and requesting the clerk of court to designate that information confidential.
• Example — Recently, I represented two defendants, an individual and an entity, in a breach of contract and guaranty action. Pursuant to Fla. R. Civ. P. 1.130(a), plaintiff’s counsel attached the contract upon which action was brought as an exhibit to the complaint. The contract contained the individual defendant’s entire Social Security number, bank account number, telephone number, and the corporate defendant’s entire taxpayer identification number. Along with the contract, plaintiff’s counsel filed a notice requesting the clerk deem that information confidential.
In that case, plaintiff’s counsel, along with other similarly situated practitioners, was not acting in bad faith but believed he was acting under Rule 2.420. However, Rule 2.425, enacted after Rule 2.420 and enforced by new Fla. R. Civ. P. 1.020, makes such a practice improper. Rule 2.425 subdivision (a) states, in pertinent part, that practitioners shall not file any portion of a person’s Social Security number or bank account number at all, and only the last four digits of a person’s telephone number or tax payer identification number can be filed.
Fla. R. Jud. Admin. 2.420
Rule 2.420 was amended in 2010 to add subdivision (d), which provides a procedure for the clerks to identify a narrow set of records as confidential.2 Rule 2.420(c) itemizes 10 specific categories of records that the clerk shall identify as confidential; Social Security, bank account, charge, debit, and credit card numbers are not listed in subdivision (c).3 However, Rule 2.420(d)(1), which states that the clerk shall designate and maintain the confidentiality of certain types of information contained in the court record, specifically references Social Security, bank account, charge, debit, and credit card numbers:
The clerk of the court shall designate and maintain the confidentiality of any information contained within a court record that is described in (d)(1)(A) or (d)(1)(B) of this rule. The following information shall be maintained as confidential:***
(B) except as provided by court order, information subject to subdivision (c)(7) or (c)(8) of this rule that is currently confidential or exempt from section 119.07, Florida Statutes, and article I, section 24(a) of the Florida Constitution as specifically stated in any of the following statutes or court rules as they may be amended or renumbered:***
(iii) Social Security, bank account, charge, debit, and credit card numbers . §119.0714(1)(i)-(j), (2)(a)-(e), Fla. Stat. (Unless redaction is requested…this information is exempt only as of January 1, 2012.)4
Further, Rule 2.420(d)(2)5 states that a person filing any document containing any of the confidential information listed in subdivision (d)(1)(B) of the rule shall also concurrently file a Notice of Confidential Information within Court Filing, set out in the Appendix to Rule 2.420:
The filer of any document containing confidential information described in subdivision (d)(1)(B) shall, at the time of filing, file with the clerk a “Notice of Confidential Information within Court Filing” in order to indicate that confidential information described in subdivision (d)(1)(B) of this rule is included within the document being filed and also indicate that either the entire document is confidential or identify the precise location of the confidential information within the document being filed. If an entire court file is maintained as confidential, the filer of a document in such a file is not required to file the notice form. A form Notice of Confidential Information within Court Filing accompanies this rule.
Rule 2.420(c) and (d) seem to obligate the clerk, upon receiving the described notice, to designate and maintain the confidentiality of Social Security, bank account, charge, debit, and credit card numbers. However, reading Rule 2.420(d)(1) in conjunction with F.S. §§119.0714(1)(i)-(j) and (2)(a) illustrates that the clerk was to designate and maintain the confidentiality of Social Security, bank account, charge, debit, and credit card numbers filed in the court record until January 1, 2012, when that information became exempt and no longer produced in response to a public record request, even if the holder of the information did not file a request for the exemption or the filer did not file a Notice of Confidential Information within Court Filing. Nonetheless, the continued use of the words “clerk” and “Social Security, bank account, charge, debit, and credit card numbers,” along with the notice procedure, is causing litigation practitioners’ confusion and leading to improper filings.
Fla. R. Jud. Admin. 2.425
Rule 2.425 was enacted as a new rule in 2011 to specify the format in which a party’s sensitive information must be filed, if it can be filed at all. Rules 2.420 and 2.425 are companions. The Florida Supreme Court stated:
The new rule serves as a companion to recently amended Rule of Judicial Administration 2.420 (Public Access to Judicial Branch Records). New Rule 2.425 provides the procedures for protecting personal information being filed with the court; while Rule 2.420 governs the procedures for determining the confidentiality of information after it has been filed and for providing public access to nonconfidential information.6
Rule 2.425(a) explicitly states that while some sensitive information can be filed with the court in a limited or truncated format, certain sensitive information (i.e., Social Security, bank account, charge, debit, and credit card numbers) cannot be filed with the court at all. Subdivision (a) of the rule reads:
[D]esignated sensitive information filed with the court must be limited to the following format:
(1) The initials of a person known to be a minor;
(2) The year of birth of a person’s birth date;
(3) No portion of any
(A) Social Security number,
(B) bank account number,
(C) credit card account number,
(D) charge account number, or
(E) debit account number;
(4) The last four digits of any
(A) taxpayer identification number (TIN),
(B) employee identification number,
(C) driver’s license number,
(D) passport number,
(E) telephone number,
(F) financial account number, except as set forth in subdivision (a)(3),
(G) brokerage account number,
(H) insurance policy account number,
(I) loan account number,
(J) customer account number, or
(K) patient or health care number;
(5) A truncated version of any
(A) email address,
(B) computer user name,
(C) password, or
(D) personal identification number
(6) A truncated version of any other sensitive information as provided by court order.7
Rule 2.425(b) then lists the exceptions to subdivision (a), identifying certain information that does not need to be filed in limited format.8
Fla. R. Civ. P. 1.020
Rule 1.020 was enacted in 20139 and provides that “[e]very pleading or other paper filed with the court shall comply with Fla. R. Jud. Admin. 2.425.” Although Rule 1.020 expressly requires compliance with Rule 2.425, Rule 1.020 fails to provide practitioners any further guidance or instruction.
What To Do if a Document is Filed Containing Sensitive Information that Does Not Comply with Rule 2.425?
Practitioners should immediately file a motion to strike the pleading, or part thereof, as improper as a matter of law pursuant to Fla. R. Civ. P. 1.140(f).10 As discussed above, Fla. R. Jud. Admin. 2.425(a) explicitly forbids filing sensitive information that is not limited to the specified format, if it can be filed at all. Rule 2.425(c) provides, in pertinent part, “[u]pon motion by a party or interested person or sua sponte by the court, the court may order remedies, sanctions or both for a violation of subdivision (a)…the court may impose sanctions if such filing was not made in good faith.” For now, because Rule 2.425 is in its infancy, the relief awarded is a matter of judicial discretion.
“When construing Florida Rules of Civil Procedure, courts may look to federal case law construing similar or identical Federal Rules of Civil Procedure.”11 When enacting Rule 2.425, the court noted that the rule “is loosely modeled after Federal Rule of Civil Procedure 5.2.”12 In response to practitioners’ filing of information that does not comply with Rule 5.2, federal courts have issued relief from striking filings,13 to sealing the record and awarding sanctions against violating attorneys.14 Therefore, in an abundance of caution, you should file a motion to strike — or in the alternative, a motion for a protective order to place the documents under seal or to deem the record confidential (and exempt from public records requests), pursuant to Rule 2.420(d).
If you need to file a document that places a party’s sensitive information at issue, you must refer to Rule 2.425 and only file the sensitive information in the method and format specifically stated therein. Be aware that filing your client’s own Social Security, bank account, charge, debit, and credit card numbers, or a nontruncated version or limited format of other designated sensitive information, waives the protections of Fed. R. Civ. P. 5.2(a) — and likely Fla. R. Jud. Admin. 2.425 — as to the person’s own information.15
How to Prevent Litigation Practitioners’ Confusion
Litigation practitioners’ awareness could be increased by the addition of an author’s comment or committee’s note to Rules 1.020 and 2.425.
An author’s comment or committee’s note to Rule 1.020 could state: Fla. R. Jud. Admin. 2.425 provides limitations for filing a person’s sensitive information (i.e., date of birth, Social Security number, and taxpayer identification numbers). Accordingly, Social Security, bank account, charge, debit, and credit card numbers are not to be filed at all, and all other types of sensitive information are not to be filed except in the method and format specifically stated in subdivision (a). An author’s comment or committee’s note to Rule 2.420 could assist in clarifying by stating: The clerk’s confidentiality and notice procedure described in subdivision (d) is not to be used as a method to file documents containing a person’s Social Security, bank account, charge, debit, and credit card numbers, but that the clerk’s confidentiality and notice procedure may be utilized after certain types of information (for example, Social Security, bank account, charge, debit, and credit card numbers) have been filed.
1 The following rules either refer to Fla. R. Jud. Admin. 2.425 or refer to documents that likely contain confidential information as defined in Rule 2.420 or sensitive information as defined in Rule 2.425: Fla. R. Civ. P. 1.310(f)(3), 1.340(e), 1.350(d), Form 1.988, Form 1.990, Form 1.991, Form 1.993, Form 1.994, and Form 1.995; Fla. R. Jud. Admin. 2.425; Fla. R. Crim. P. 3.140(c)(4), 3.211(c)(4), 3.212(d), 3.218(a), and 3.219(a)(3); Fla. Prob. R. 5.200(b), 5.210(a)(2), and 5.530(a)(2); Fla. Small Claims R. 7.140(e)(3), and Form 7.340; Fla. R. App. P. 9.050; and Fla. Fam. L. R. P. 12.105(a)(1), 12.130, 12.280(a), 12.285(a)(3) and (c), 12.340(c), 12.363(e), 12.370, 12.410, 12.540(b), 12.560(e), and 12.620.
2 See In re Amendments to the Florida Rule of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, 31 So. 3d 756 (Fla. 2010).
3 Fla. R. Jud. Admin. 2.420(c) lists the categories of judicial branch records that shall be identified by the clerk as confidential: “1. Memoranda, notes, bench, briefs, and other similar materials prepared by judges or court staff showing judicial thought process, unless filed as part of the court record; 2. Documents relating to court administration and that require confidentiality to protect a compelling government interest and cannot be protected by less restrictive measures, e.g., maintaining court security or facilitating an ongoing criminal investigation; 3. Complaints alleging judicial misconduct, until probable cause is established; 4. Judicial evaluations to assist the judges in improving their performance; 5. Names and qualifications of persons applying to volunteer for the court; 6. Arrest and search warrants and supporting affidavits, until execution of the warrant or a determination by law enforcement that execution cannot be made; 7. All records made confidential under federal or state constitutions of law; 8. All records deemed confidential in case decision or court rule; 9. Any court record deemed to be confidential in case decision or court rule; and 10. Names and identifying information of judges mentioned in an opinion issued by the Judicial Ethics Advisory Commission.”
4 Fla. R. Jud. Admin. 2.420(d)(1) (emphasis added). Fla. Stat. §119.0714(1) provides, in pertinent part: “Nothing in this chapter shall be construed to exempt from [public inspection] a public record that was made part of a court file…except…(i) Social Security numbers…[and] (j) [b]ank account numbers and debt, charge, and credit card numbers….” Therefore, pursuant to Fla. Stat. §119.0714(1)(i) and (j), Social Security, bank account, and debt, charge, and credit card numbers are exempt from public inspection of public records that were made part of a court file.
5 Fla. R. Jud. Admin. 2.420(d)(2) (emphasis added).
6 In re Implementation of Committee on Privacy and Court Records Recommendations—Amendments to Florida Rules of Civil Procedure; Florida Rules of Judicial Administration; Florida Rules of Criminal Procedure; Florida Probate Rules; Florida Small Claims Rules; Florida Rules of Appellate Procedure; Florida Family Law Rules of Procedure. , 78 So. 3d 1045, 1049 (Fla. 2011).
7 Fla. R. Jud. Admin. 2.425(a)(3) (emphasis added).
8 See Fla. R. Jud. Admin. 2.425(b).
9 See In re Amendments to the Florida Rules of Civil Procedure, 131 So. 3d 643 (Fla. 2013).
10 Fla. R. Civ. P. 1.140(f). “A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.”
11 See Saewitz v. Saewitz, 79 So.3d 831, 834 n.3 (Fla. 3d DCA 2012) (citing Ferrigno v. Yoder, 495 So. 2d 886, 887-888 (Fla. 2d DCA 1986)).
12 In re Implementation, 78 So. 3d at 1050. Fed. R. Civ. P. 5.2(a) provides: “Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s [S]ocial [S]ecurity 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.”
13 See Taitz v. Astrue, 2011 WL 3039167 (D.D.C. 2011) (“Defendant’s motion to strike plaintiff’s opposition to defendant’s summary judgment motion, and attached exhibits, was promptly granted due to plaintiff’s failure to comply with Federal Rule of Civil Procedure 5.2(a)(1), which requires that only the last four digits of a Social Security number are to be filed with the [c]ourt.” The court also cautioned the pro se plaintiff that repeated violations of the rule are sanctionable.).
14 See Moorish Holy Temple of Science of the World v. Terry, 2012 WL 2576782 at *3 (E.D.N.C. 2012) (directing the clerk to seal improper filings containing the name of a minor and to redact the name of the minor from any copies made accessible to the public); N’Jai v. Pittsburgh Bd. of Public Educ. , 2011 WL 1402855 (W.D. Pa. 2011) (ordering the clerk to seal improper filing and advising plaintiff that all future violations will result in the imposition of sanctions, including the potential dismissal of the case); Allstate Ins. Co. v. Linea Latina De Accidentes, Inc. , 2010 WL 5014386 (D. Minn. 2010) (ordering the clerk to seal the improper filings and sanctioning counsel).
15 Fed. R. Civ. P. 5.2(h); see also Wells v. EMF Corp. , 757 F. Supp. 2d 791, 798 (N.D. Ind. 2010).
Joey M. Lampert is a litigator who practices in Ft. Lauderdale with Perlman, Bajandas, Yevoli & Albright, P.L. His practice consists of general civil and complex commercial litigation in both federal and state courts. He also handles various breaches of contract and fiduciary duty actions He is a south Florida native and graduated magna cum laude from the University of Miami School of Law in 2008.