Robins Kaplan Miller & Ciresi attorney Vincent Moccio had what can only be described as a bad day last Tuesday when U.S. District Court Judge Michael Davis assessed a $5,000 sanction against him for mistakenly filing in a civil action a document that contained the Social Security numbers and dates of births of 179 individuals. (The Federal Rules of Civil Procedure specifically prohibit filings containing such private information without prior court approval.)
Here’s the money quote from Davis’ short, but nontheless potent opinion:
“The Court is deeply concerned with the harmful and widespread ramifications associated with negligent and inattentive electronic filing of court documents. ALthough electronic filing significantly improves the efficiency and accessibility of our court system, it also elevates the likelihood of identity theft and damage to personal privacy when lawyers fail to follow the federal and local rules.”
In addition to the $5,000, Davis imposed on Moccio the costs associated with preventing identity theft for the 179 harmed individuals to be carried out as follows: inform the individuals; pay the costs of FICO standard services, including a credit report; a 12-month subscription to FICO Quarterly Monitoring.
Interestingly, the $5,000 sanction paid by Moccio is to go to the Second Harvest Heartland food bank in St. Paul “so that he will keep in mind the interests and safety of dependent parties before he acts in the future.”
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I’m not in any way condoning the mistake here, but the electronic filing system should really scan filed docs for text in the form ###-##-####. If it sees something like that, it might simply warn the filer that a potential social security number has been detected, and give them a second opportunity to double-check.
(This wouldn’t prevent the problem for PDFs that are merely bitmaps of a document (i.e. no OCR); but it would at least catch mistakes for word docs, text files, PDFs w/text. etc.)
If I were estimating coding something like this, I would see it as being a very small project. Certainly something I’d be happy to bill out the coding work at less than $5000. Maybe the next fine can be used to fix this problem for good?
Come to think of it, maybe I should just contact the Gov’t and get myself some work …
Newly Minted, the ECF filing system requires you to file PDFs.
It may still work for PDFs.
Some (most?) PDFs have text stored in them that can be scanned. For example, if they are generated from a word processor or other such tool. (On a Macintosh, one can print to a PDF; that preserves text.) So in that case, it would still work.
If the PDF’s are only images, such as from a scanner, without any optical character recognition done, then it would not be able to detect possible social security #s.
One could certainly automate the system to OCR PDFs to search for SSNs and reject filings that include them. On the other hand, who wants to pay for that? (And it is certain to cost more than estimated.)
Isn’t it much easier to do just what the Court’s done and shift the burden onto filers? RKMC is a great firm that’s done very well for a long time and can afford to be the poster-child here, both financially and reputationally.
If I remember correctly, there is some case law “In re Tutu Wells” in the 3rd Circuit holding that a district court cannot order sanctions paid to a non-party community organization. The case has a long history so that may not still be good law.
Well, Anon, we can shift the burden on the filers. True. But everyone makes mistakes. Particularly partners who have associates they are relying on to file things for them. Why penalize these honorable souls for simple mistakes when we could, via technology, provide a warning?
I’m not kidding when I say that for $5k I could easily detect social security numbers. Any programmer worth their salt could implement this in a few dozen hours. That it hasn’t been done is a testament for shifting the burden to attorneys.
Now granted, the attorney must follow the FRCP; but here we have the ultimate case of where the rule is easily coded and could prevent the kind of embarrassment we see here.
Ultimately I have a lot of sympathy for Vincent Moccio: there’s no reason the software could detect this and warn the filer, provided the PDF is not merely an un-OCR’d scan.
Newly, I’m guessing getting the gov to change their system might be tough. How about selling a program to law firms (like RKMC) that could scan their PDFs for SSNs to avoid sanctions and bad publicity?
Anon, maybe this is a job for Microsoft Word’s “Clippy.”
http://upload.wikimedia.org/wikipedia/en/d/db/Clippy-letter.PNG
“It appears you’re writing a motion and have included an SSN. Would you like me to:
[ ] follow the FRCP
[ ] notify the professional responsibility board
[ ] . . . “
LOL! Although your comment does remind me of the software we use for HR purposes, which assumes you are acting with nefarious intent if you use the word “pretty” in a performance review (as in “a pretty good job, or “a pretty important element”). When I use the word, I invariably get asked, “Are you sure you really want to say that?” The program no doubt fails to see the humor of my mental response, which is always “pretty sure” ….
that’s pretty funny Mark; thanks for the laugh!