In 2009 Kentucky adopted a new court rule designed to help lessen the risk of identity theft by limiting the types of personal and financial information that may be included in documents filed with the court in a civil or criminal case. Effective April 1, 2009, Rule 7.03 of the Kentucky Rules of Civil Procedure requires the redaction (i.e., removal) of certain personal and financial information from documents filed in court. The Rule adopts some of the privacy protections contained in Federal Rule of Civil Procedure 5.02, which was adopted in 2007.
Specifically, the Kentucky rule requires that a party filing a document with the court clerk containing certain types of personal or financial information must redact such information prior to filing. The information to be redacted consists of the digits of a person’s Social Security Number or Taxpayer Identification Number, month and day (not year) of birth (except in criminal cases, in which full date of birth may be left in), and the digits of a financial account number.
Parties to lawsuits who file copies of or introduce into evidence a person’s medical, financial, or income tax records should be careful to observe the requirements of this Rule. Such records often contain both SSNs and DOBs. The burden of redaction is on the party filing the document or that party’s attorney, not on the court clerk. A party waives the protections of the rule if the party’s own attorney files unredacted documents.
If documents produced in discovery are filed with the clerk, the party filing the responses must comply with this rule. The filing party’s attorney must keep an unredacted original of the filed redacted document and must present it on order of the court.
The required document retention period presumably ends once the legal action has been finally resolved. However, prudent legal counsel may wish to retain or store at least the key documents from the case (even if only electronically) for an additional period or offer to return them to the client before discarding them.
The following is the text of Kentucky Civil Rule 7.03:
CR 7.03 – Privacy Protection for Filings Made with the Court
(1) Unless the court orders otherwise, in a filing with the court that contains certain personal data identifiers, including an individual’s social-security number or taxpayer-identification number, or birth date, or a financial-account number, an attorney or party making the filing must redact the document so the following information cannot be read:
(a) the digits of the social-security number or taxpayer-identification number;
(b) except in criminal cases, the month and day of the individual’s birth; and
(c) the digits of the financial-account number.
Redaction may be made by any method, including but not limited to replacing the identifiers with neutral placeholders or covering the identifiers with an indelible mark, that so obscures the identifiers that they cannot be read.
(2) An attorney or party making a filing under part (1) above shall keep an unredacted, original copy of the filing. The attorney and party shall be custodians of the original or unredacted copy of the filing and shall present it upon order of the court.
(3) The court may order that a filing be made under seal without redaction. If the court orders an unredacted copy of the filing under seal, a copy redacted in compliance with part (1) of this rule may also be filed.
(4) For good cause, the court may by order in a case:
(a) require redaction of additional information; or
(b) limit or prohibit a nonparty’s access to a document filed with the court.
(5) The clerk is not required to review filings with the court for compliance with this rule. The responsibility to redact filings rests with counsel and the party making the filing.
(6) A person waives the protection of this rule as to the person’s own information by including it in a filing without redaction.
(7) An attorney or party failing to comply with this rule will be subject to the sanction powers of the court, including having the relevant filing stricken from the record . A conforming copy of a filing previously stricken from the record for failure to comply with this rule may be refiled unless otherwise ordered by the court.
For more information, contact Dave Kramer at email@example.com or (859) 341-1881.
The foregoing post includes commentary reprinted from the forthcoming 2011 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2011 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
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