Bankruptcy Ct: No Claim for Including Private Info in Court Filing

CM/ECF is the electronic filing system used by federal courts.  It has undoubtedly made the logistics of litigation much easier, although there are often complaints about PACER, its sibling system which makes court documents available to the public.

Since documents filed via CM/ECF are immediately available to the general public, there are numerous rules around what filers should and shouldn't file, and what type of information should be redacted.  So what happens when lawyers file a document which contains personal information of an adversary?  Most likely, just a potential slap on the wrist - i.e., it's tough to make out an affirmative claim based on the improper inclusion of personal information in a court filing.  Such was the result in a South Carolina bankruptcy court from a couple of weeks ago (In re Killian, 2009 Bankr. LEXIS 2030 [C/A No. 05-14629-HB, Adv. Pro. No. 08-80250-HB, Chapter 13] (July 23, 2009)).  I think I've seen this happen a couple of times before, but to my knowledge, this is the first time a party has tried to assert claims based on this scenario.  

The Killians filed for bankruptcy in 2005 and Green Tree (on its own, not through a lawyer) filed a proof of claim which attached a document containing the Killians' "social security numbers, full account number, and legal names."  In 2008, Green Tree (this time, through its lawyer) filed a Motion for Relief from Stay, and attached Green Tree's original filing, which contained the Killians' social security numbers and account numbers. The Killians brought an adversary proceeding asserting claims under state law, Gramm-Leach-Bliley, and other statutes. 

The court rejected the state law claims on the basis that the Killians failed to allege actual (presently suffered) harm.  While they - like all other data breach plaintiffs - alleged fear of future harm, this was insufficient.  Regarding the other claims brought by the Killians - which were cobbled together with a variety of court rules and procedures (including Gramm-Leach) - the court found that a sanctions-like hearing was appropriate:
It seems that placing a party's social security number of other private information on the public record, contrary to the spirit and purpose of the statutes, bankruptcy rules, and local rules...may constitute an abuse of process.  This is especially true if this abuse is or may be repeated....The allegations stated in the Complaint may affect the integrity of the bankruptcy process and once brought to light, the Court has the power to respond...The Court will hold a hearing on September 3, 2009...to consider Plaintiffs' request that the Court review Defendant's conduct to determine if any further action is warranted as a remedy and/or to prevent such future conduct pursuant to 11 U.S.C. 105.
Interesting. The no affirmative claim was fairly predictable.  As for the fallout on the creditor side, I would guess an admonition, at best.  Particularly since non-lawyers filed the initial document and could not have been expected to be familiar with the rules?

Added:  the decision contains some good background on CM/ECF and Pacer, which incidentally hit a million subscriptions recently. (h/t Jane Simon)

AlsoSteve Schultze who blogs about PACER issues, has a link to the complaint [pdf] here.
 
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