The South Carolina Supreme Court’s Changes to Civil Procedure Rules Directly Impact Family Court Litigants

Today’s (April 16, 2014) Shearouse Advance Sheets No. 15, the South Carolina Supreme Court amended portions of the South Carolina Rules of Civil Procedure that directly impact family court cases.  The Court ordered that Rules 11 and 77, SCRCP, are amended and 41.2, SCRCP is added as follows:

Amendment to Rule 11(a), SCRCP: “…The written or electronic signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper…” (emphasis added).

Amendment to Rule 77(d), SCRCP : “…For parties proceeding in the SCE-File electronic filing system, the clerk shall serve notice of the entry by electronically transmitting a Notice of Electronic Filing to all parties. Such mailing or electronic transmission shall not be necessary to parties who have already received notice. Such mailing or electronic transmission is sufficient notice for all purposes for which notice of the entry of an order or judgment is required by these rules…”

The notes to this Amendment, state: “This amendment requires the clerk to serve notice of entry of an order or judgment through the SCE-File electronic filing system for all parties who are proceeding in the electronic filing system. Any party or the attorney for a party who is a traditional filer and not proceeding in the electronic filing system must be served by first class mail as provided in paragraph (d).”

This Rule does not exclude the electronic filing of Family Court cases. This means that family court litigants should expect that their case information will be online and their privacy is limited but specifically addressed in the Court’s new Rule 41.2, SCRCP, because it only addresses some of the concerns parties will have about their private information not being protection in the public sphere.

For example, the new Rule (discussed further below) does not hide the listing of parties’ assets, debts and their estimates of their values.  While the Rule protects certain information such as requiring the redaction of account numbers and pin codes, the existence of asset and debts will still be listed online unless the parties’ attorneys take steps to protect this information from the Internet.  Children’s names, dates of birth and parties’ social security numbers are redacted or hidden, but again, the fact that parties have minor children becomes public knowledge as the pleadings will identify the fact that certain parties are addressing custody, visitation and child support.

Parties’ jobs and places of employment are also not specifically protected by the new rule.  The new rule, though, does state that

“[p]arties preparing or filing documents are prohibited from filing documents which contain personal identifying information delineated in S.C. Code Ann. § 30-2-330(A). Parties should exercise caution and refrain from including any unnecessary personal identifying information in court filings so as to limit the necessity of redacting documents. Furthermore, parties should exercise caution in including other sensitive personal data in filings, such as medical records, employment history, individual financial information, proprietary or trade secret information, information regarding an individual’s cooperation with the government, information regarding the victim of any criminal activity, or national security information.”

Thus, Rule 41.2(b), SCRCP, does allow attorneys to redacted certain information and in fact, the rule goes on to state that attorneys may not only redact but they can put personal data identifiers in a confidential file that the Clerk is not to make available to the public. This portion of the rule states,

“(b) Reference Lists. Where personal data identifiers are relevant to an issue in the case, a filing that contains redacted information may be filed together with a confidential reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed as a confidential document, which is not available to the public, and may be amended as of right. The confidential reference list shall not be made available on the Case Management System Public Index and may only be viewed by the parties and the court and staff. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information. No order of the court is required to file a reference list.

While the new rule is sensitive to the fact that electronic filing can reveal private information in an online format, our Supreme Court has taken measures to attempt to provide protection. This protection, however, is very limited. Thus, parties’ attorneys must take the extra precautions of protecting their clients’ proprietary data so others do not steal and misuse this material for their own gain.  The important lesson for litigants and lawyers alike it to carefully craft all documents that are electronically filed so clients, clients’ children and the entire family are not harmed by this new system, but instead, benefit from the cost savings and ease of use the system provides.

Several years ago, this issue came up with Justice Toal first raised concerns about the Sunshine laws.  To protect family law litigants, the Supreme Court drafted Rule 41.1 so family court litigants could seal their files where their right to privacy outweighed the public’s right to review certain court documents.  At the time, I chaired SC Family Court section, and as part of this discussion and major overhaul of Common Pleas litigation where settlement agreements sometimes kept the public unaware of harmful defects in product designs, I wrote a law review article to distinguish those situations from family court litigation.  See Family Court Files:  A Treasure Trove for Identity Thieves.

Thus, today’s most significant change to our Rules of Civil Procedure is the addition of Rule 41.2.  The rule only addresses future filings and does not address how to protect previously filed cases or whether those cases will be scanned in and put online.  This is an issue that has yet to be addressed, and one that family court lawyers need to stay abreast of.

However, it is fairly clear from today’s announcement that electronic filing in family court cases is about to be launched in South Carolina.  I applaud this move forward with technology, but I also caution every SC family court attorney to carefully consider what information you put into your pleadings, motions, financial declarations, agreements, affidavits and orders and make sure you redact any information that would harm your client if it was released and made public to the world online.

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