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January 17, 2013
Comments on Proposal to Repeal 22 NYCRR Section 202.5-b(d)(3)(iii)
The NYCLA Supreme Court Committee reviewed the Office of Court Administration (“OCA”) proposal regarding 22 NYCRR Section 202.5-b(d)(3)(iii) relating to “secure” electronic filing at its meeting on January 8, 2013. As noted below, both the Committee and the NYCLA Civil Court Practice Section voted on the proposal, with differing outcomes.
The Committee voted against repeal of 22 NYCRR Section 202.5-b(d)(3)(iii) relating to secure electronic filing by a vote of 7-6, with 11 abstaining. E-filing a document in “secure” status renders it unavailable for public inspection online through the NYS Electronic Filing System (except to counsel of record and self-represented parties in the case), but such “secure” documents remain available for public inspection on a computer terminal at the office of the County Clerk.
A lively debate took place regarding the value of secure electronic filing to litigators. Many agreed with OCA’s position that the secure e-filing option gave filers a false sense of security, resulting in the inadvertent filing of secure information without proper redaction. Conversely, proponents of secure e-filing felt that the intermediate step between Internet-searchable papers and filing papers under seal afforded by secure e-filing was a feature worth keeping. One reason given for maintaining the secure status was to ease the burden on attorneys, who might be confronted with a filing, such as a late night submission, only to realize that a document, such as an exhibit, was produced to the attorney technically under a confidential (perhaps overbroad) designation. Under standard confidentiality agreements, there is a time frame set for determining confidentiality designations, which may not align conveniently with, or resolve prior to, required or urgent motion filings. The availability of the secure designation has been used by practitioners, in their professional discretion, as a stop-gap measure in order to facilitate a required filing, with notice to the producing side, with the details for whether to completely shield the document from public view to be determined shortly thereafter.
For many a mundane case, as a practical matter, the public is not vying to view the details of such filings at the clerk’s office. Further, as the New York State court system is more restrictive in allowing documents to be sealed, maintaining the secure status will allow documents that might be sealed in federal court to be filed in the state court as secure, and with some modicum of effective protection in most cases. Additionally, it is unclear from the proposal to what extent lawyers are currently using the “secure” status, and to what effect – in other words, it is unclear on what exactly OCA is basing the proposal to repeal the secure status. To the extent necessary to clarify the limited protection of the “secure” status, that might be remedied by a pop-up reminding the e-filer that documents filed as secure are not sealed and are still available for viewing by the public at the clerk’s office. As the New York County Lawyers’ Association exists in large part to foster the interests of lawyers, the Committee believes that the Association should make known the view of lawyers on the Committee who believe that the existence of the “secure” status palpably benefits the practicing attorney and the interests of parties. Accordingly, the Committee voted narrowly against the repeal of secure e-filing.
The Civil Court Practice Section reviewed this OCA proposal at its January 15, 2013 meeting. The Section undertook an in-depth discussion of both OCA’s report and the Supreme Court Committee’s preliminary report to the Section as to the discussion and outcome of the Committee’s meeting. The Section’s members noted that the correct usage of “secure” e-filing was largely to protect the very same information that OCA’s newly proposed rule, Section 202.5(e), now requires to be redacted. For other “secure information” such as trade secrets, and as OCA itself noted in its report, “secure” e-filing gives a false sense of security because, without a sealing order, such information is available for inspection at the office of the County Clerk. Whether anyone is looking to view these documents, the fact that they are available for public inspection likely will work to undermine any “confidential” status wishfully ascribed to them. What is left to protect in any continuing usage of “secure” e-filings mainly is its noted illegitimate usage, i.e., the practice of attorneys to attempt to secure e-filings where personal “secure information,” in fact, is not involved.
After this discussion, by a vote of 11-0, with two abstaining, the Section unanimously voted in favor of repeal of 22 NYCRR Section 202.5-b(d)(3)(iii), as proposed by OCA.