Court Sanctions Lawyer for Including Social Security Number and Date of Birth Information in Filing — Engeseth v. Isanti County

[Post by Venkat]

I’ve blogged about parties who complain when opposing counsel wrongly includes personal information (usually social security numbers) in court filings. Attempts to assert counterclaims based on this type of conduct typically fail. For one example, see In re Killian, discussed here. (You can see a list of other cases rejecting these types of claims noted here.)

However, a judge in Minnesota recently sanctioned a lawyer for including the “full social security numbers and dates of birth for 179 individuals” in a court filing. (Engeseth v. Isanti County, Case No. 06-CV-2410 MJD/RLE (D. Minn.; Oct. 20, 2009).) After issuing a show cause order on its own motion (as best as I can tell, none of the parties complained), the court concluded that counsel’s inclusion of the social security numbers and date of birth information in a filing violated Federal Rule of Civil Procedure 5.2(a), and demonstrated poor judgment. That rule requires truncation of certain personal information (e.g., social security number, taxpayer identification number) in court filings unless otherwise ordered by the court. (Here is a link to the rule: “Privacy Protection for Filings Made with the Court“.)

The sanctions imposed by the court included: (1) notice to all injured parties, along with “individualized credit reports and credit monitoring,” and (2) payment of $5,000 to the Second Harvest Heartland food bank.

Without minimizing the seriousness of the privacy interests at issue, it seems rough for the court to impose these types of sanctions on its own motion. The credit monitoring makes sense, but I’m not sure what’s up with the donation to the food bank. Particularly rough from the lawyer’s perspective, given that this appears to be a pro bono case where the lawyer achieved a good result for the clients. The filing containing the social security numbers was an accounting affidavit filed by the lawyer detailing the disbursements of settlement proceeds to his clients. I’m not suggesting that you don’t have to follow the rules in pro bono cases. You obviously do, but the sanction must have stung, coming at the end of a successfully prosecuted pro bono case.

My own anecdotal observation is that courts are very reluctant to sanction lawyers these days, and I’ve seen courts reject sanctions for a lot worse. Nevertheless, the court’s order illustrates the importance of adhering to court orders and rules that govern the inclusion of private information in court filings. As to whether this means that parties can assert claims based on the wrongful inclusion of personal information in filings, the answer is, no, they probably cannot. In any event, I would think the relief awarded by the court would be limited to notice and credit-monitoring, as is typically the case in consumer data breach cases. In other words, it’s difficult to gain leverage in a case based on the opposing party’s wrongful inclusion of personal information in a court filing.

Added: additional coverage at the Minnesota Lawyer Blog here (which first noted the order) and The Register here. The Minnesota Lawyer Blog also provides access to the order itself: [pdf].

(h/t Cathy Gellis)

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