As the Indiana Supreme Court continues its effort to implement a statewide e-filing system and make more legal filings accessible online, attorneys and court staff will have to rely less on their black Sharpie Permanent Markers and more on their computer software to ensure that confidential information stays confidential.
Many lawyers already electronically redact their clients’ personal information and account numbers from court documents filed over the internet, but with these documents becoming available at the click of a mouse, the parameters are changing. Attorneys will have to be especially certain the black boxes they put in the filings stay in place, and they will have to scrutinize the details they include.
To address the many aspects involved in posting court records online, including protection of individual privacy as well as proprietary business information, the Supreme Court appointed the Advisory Task Force on Remote Access to and Privacy of Electronic Court Records. Discussions by the group have focused heavily on how to maintain confidentiality in the briefs, motions and other filings.
Task force member Stephen Key, executive director and general counsel of the Hoosier State Press Association, said making legal documents electronically available will be the equivalent of shining a light on the more obscure branch of government. The public will be able to see for themselves the workings of the state courts.
“The potential of having more and more documents put on the internet allows the public to have greater access and to potentially do more independent research into the work of the judiciary,” he said. “That is a good thing.”
Yet the old arguments crop up of whether the ability to peer into public records should stretch to individuals in their pajamas sitting in front of their computers at midnight.
Court filings that inadvertently disclose confidential and personal information can be taken offline and resubmitted. However, the theory holds that once something appears on the internet, it can never truly be erased. Revealing private account numbers or children’s names can be as devastating to individual clients as publicizing internal matters of Fortune 500 companies.
The easier public access, noted Barnes & Thornburg LLP partner Mark J. Crandley, raises the threat level from unredacted information for clients of all sorts. Plaintiffs or defendants could be at risk for identity theft or loss of privacy.
Even with redaction, Crandley makes sure his clients understand their cases will be displayed online. He is engaging more and more in conversations with clients that filing a lawsuit in 2016 comes with the consequence of the details being out there for all to read.
Attorneys, as well, should be “more mindful” that what they e-file will make its way onto the internet, said Jon Laramore, executive director of Indiana Legal Services Inc. and task force member.
As an example, he pointed to motions lawyers submit when they ask for a deadline extension. Sometimes counsel will offer very explicit details of what is hindering their ability to file on time. Attorneys need to think about the information that will be available to the whole world.
When the federal court system began posting case filings on PACER, it rethought and implemented new privacy rules. In particular, the federal system required the redacting of personal identifiers such as Social Security numbers, dates of birth, names of minor children and financial account numbers.
Laramore sees the online availability of state court documents as helpful to both clients and attorneys. Pulling records from their computers will be more convenient than traveling to the courthouse and paying for copies. Also, lawyers will be able to better craft their arguments by reviewing the briefs filed by other lawyers in similar cases.
Key understands the desire for privacy and the trepidation toward putting the court’s business on the web. But the HSPA stands by its position that unless there is a good policy reason for keeping a court record confidential, briefs, motions and other legal filings should be accessible.
“From our perspective,” Key said, “what is publicly available in paper form should be publicly available in electronic form.”
Highlighting and clicking
The computer tools available for blacking out confidential information are improving, but attorneys should note what appears to be redacted on screen might be easily found through a simple cut-and-paste.
Among the best-known redaction bungles is the high-profile sex discrimination case Schaefer v. General Electric Co., 3:07-cv-0858. In May 2008, it was discovered that accessing the plaintiffs’ filings through PACER then simply copying the document text into a Microsoft Word document revealed the scandalous blacked-out information, which had been under seal.
Most problems like these are the result of essentially overlaying a black box over the words, numbers or images. Although the information appears to be covered, Stephen Bour, owner of Alliance for Litigation Support Inc. in Indianapolis, explained that the black line or box is not an integral part of the document. Therefore, it can be removed.
Redaction tools in the newer versions of Adobe Acrobat actually scrub the information from the document rather than just disguise it. The software can include a redaction tool kit that allows the user to draw a box around the text or picture then apply black color over top to permanently remove. A warning message will pop up as a reminder that once the process is completed, it cannot be undone.
A computer makes redacting more effective, said Laramore, but the process is not necessarily more efficient than the old method that relied on a black Sharpie. Attorneys still have to go through the filing and mark in some way the information to be concealed. Then they have to click to redact.
Bour believes that as the judicial system gets further from paper, the Sharpie will be consigned to the back of the supply closet along with the IBM Selectric typewriter.
At the U.S. District Court for the Southern District of Indiana, Jordan Davison, management analyst and ECF liaison, can only remember getting one call from an attorney who was having trouble using the electronic redacting tools. Unable to resolve the issue, the lawyer grabbed a black pen, marked out the confidential information then scanned the document into the computer and filed it electronically.
Davison said that old-school method still works but it can increase the size of the document which will bring attorneys another type of headache. The federal courts have a 10-megabyte size limit on filings. Several hand-drawn black boxes included on the pages can be viewed by the system as images, which will increase the size of the document and can require the complaint, motion or brief to be split into multiple segments in order to be filed.
Once the filing has been redacted and is ready to be e-filed, Crandley advised, “Don’t forget the metadata.”
Buried in documents, these bits of information can remain behind even when the redaction has been completed. Savvy technology users can access the metadata and use it to reveal what is hidden behind the black bars. Fortunately, software programs now come with additional tools that highlight the hidden data and allow the attorney to remove it.
“You never know what is actually in the metadata,” Crandley said. “You never know what somebody could find in the document.”•