Litigation practitioners' confusion: Fla. R. Jud. Admin. 2.420 and 2.425 and the improper filing of sensitive information.

• Author: Lampert, Joey M.

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...