Lawyers: New Oklahoma records rule could drive up litigation costs

Journal Record, The (Oklahoma City), Mar 20, 2008 by Marie Price

Rules recently adopted by the Oklahoma Supreme Court that require redaction of personal-identification information from court records could increase the costs of litigation, said attorneys who point out that the new mandate clashes with requirements for wills, land titles and other documents.

The new rules, which take effect June 10, also prohibit posting court filings on the Internet, which only a few counties currently do. Only court dockets would be posted online.

In addition to mandating that so-called personal identifiers such as full addresses, Social Security numbers and birth dates be removed, the rules allow other information to be deleted. The latter includes driver's license numbers, medical records, employment history, trade secret data, information about crime victims, national security information and other sensitive data.

Documents can be filed containing information that should otherwise be redacted, but they must be filed under seal.

Oklahoma City attorney James Davis said the rules could lead to higher litigation costs.

"Today, with a few keystrokes on a computer, you can get a court file and the contents of it on your screen and never move from your desk," he said. "This rule, if it becomes effective in the present form, will eliminate that."

That means attorneys will have to go to the courthouse or send a clerk to retrieve court filings, he said.

"That's going to cost money," Davis said.

The court may have considered that issue, he said, "But there's nothing in the rule itself that suggests they have given consideration to the cost."

Attorney Leif Swedlow said the rules allow documents to be filed containing data that would otherwise require redaction, if the law requires the data or the court otherwise orders it.

The problem with that, Swedlow said, is that existing statutes on service of process and issuance of subpoenas are probably not explicit enough to meet the statutory-requirement provision. He said attorneys may find themselves making more trips to the courthouse to ensure their documents comply with the law.

"They're only alternative now is that, to make a sufficient court record to stand up to later challenges, they're going to have to probably go to the assigned judge and get explicit instructions as to how they can proceed to balance the need to make a proper public record of a legally significant action, versus the protection of individual privacy interests," Swedlow said.

Regarding the sensitive data, he said it is troubling that individual lawyers and other filers will have to make judgment calls as to whether to leave in such information.

"It doesn't explicitly prohibit the inclusion of that in the record," he said.

Swedlow also said current procedures provide mechanisms for protection of information that the new rule might undermine.

"That could create some substantial additional costs in the actual litigation process, where one party might, for improper motivation, put into a public court filing information that should never have been put into a public filing because it was a trade secret or sensitive, confidential information," he said.

Swedlow said a lot of money may be spent by lawyers trying to sort out what they should or should not do.

Davis said the new rules could also affect today's high- foreclosure climate.

"Oftentimes, the party representing a mortgage company that is seeking to foreclose a mortgage is also seeking a personal judgment for a deficiency against the maker of the note and mortgage," he said. "You're going to have to name that person with sufficient clarity and identification in order to have a court record that will stand up and that will give you a judgment that you can then use to try to collect the money."

Davis said the rules could be a nightmare for those who deal with land titles.

They must go into court files after pleadings are completed and create sufficient documents to show how those pleadings have affected the title to property, he said.

"If half of the documents are sealed, I can't imagine how an abstractor is ever going to be able to get from point A to point B," Davis said.

Deleting much of the specificity of identification in court documents could lead to misidentifications, he added.

Davis likened the situation to what he personally experienced a few years ago, as someone with a fairly common name, when he traveled by air. He said another James F. Davis had his passport stolen, so that name was flagged by Homeland Security. As a result, he said, every time he showed up at the airport, he had to go through a private screening process before being issued a boarding pass.

"The only way that I could clarify that I was not a party to that transaction was through my driver's license, which showed my date of birth, a very public record," Davis said.

Swedlow said the new rules increase the potential for confusion in everything from debt collection and credit reporting to title work.

"This rule is going to create quite a mine field of potential problems," he said.