September 21, 2015

 

Comments from the Family Court and Child Welfare Committee of the New York County Lawyers Association Regarding the Proposed Amendments to 22 NYCRR § 202.5(e) and 22 NYCRR § 202.16

 

First Rule Proposal: Amendment to 22 NYCRR § 202.5(e)

The Family Court and Child Welfare Committee of the New York County Lawyers Association (the “Committee”) understands that 22 NYCRR § 202.5(e) currently requires that, in all actions filed in Supreme and County Court except for matrimonial actions, surrogate’s court proceedings, or MHL article 81 proceedings, the parties must omit or redact confidential personal information (CPI) in all papers filed with the court, regardless of whether a sealing order has been sought. Further, 22 NYCRR § 202.5(e) currently defines CPI to include specific, enumerated information such as an individual’s date of birth (except the year thereof), the full name of a minor, a social security number (except the last four digits), and a credit or bank account number (except the last four digits).

The proposed amendment to 22 NYCRR § 202.5(e) seeks to expand the definition of CPI to include any “documents or testimony in a matrimonial action protected by DRL § 235,” or any evidence sealed in a matrimonial action, which are attached or referenced in any other civil actions.

Having had the opportunity to discuss this proposed amendment, the Committee makes the following recommendations:

The Committee recognizes and acknowledges the potential harm that may result from disclosure in a separate civil action of documents filed or evidence adduced in a matrimonial action, as demonstrated in Kelly v Kelly. However, the proposed amendment vastly expands the definition of CPI beyond mere identifying information such as bank account numbers and social security numbers, to include all the diverse information which may be found in the documents and evidence in a matrimonial action. The Committee is concerned that broadly restricting the use of protected documents and evidence from matrimonial actions in separate actions will place an undue burden upon the litigants and the courts in which these separate actions are pending. It is easy to imagine that, in many circumstances, the inclusion of certain documents and evidence from a matrimonial case would be necessary to fairly and effectively litigate a separate action.

The Committee recognizes that the current rule provides avenues by which the parties may seek to include CPI, and affords the court much discretion in this area. Nonetheless, the Committee believes that requiring that the parties redact such a broad range of potentially relevant material is overly burdensome, and unwieldy. Further, the proposed amendment, in its current form, may lead to confusion and inconsistent results. Among other things, reasonable minds could easily differ as to whether the material protected under DRL § 235 in a matrimonial action is necessarily sensitive or prejudicial to litigants in a separate civil action.

Additionally, some Committee members have asked whether such a broad definition of CPI under a rule mandating redaction in the absence of good cause or some other showing may constitute an improper prior restraint upon speech.

For the foregoing reasons, the Committee does not support the proposed amendment to 22 NYCRR § 202.5(e).

Second Rule Proposal: Amendment to 22 NYCRR § 202.16

The Committee has also reviewed the proposed amendment to 22 NYCRR § 202.16, which would require the courts to use the parties’ initials rather than their full names in written decisions in matrimonial actions involving certain sensitive issues.

Having had the opportunity to discuss this proposed rule change, the Committee makes the following recommendations:

The mandatory redaction of full names from written decisions in matrimonial cases involving certain sensitive issues will serve to protect the identities of any children involved in the litigation, and could help protect the parties from potential identity theft. To the extent this proposed amendment affects the names of adult litigants, the proposed change is reasonably limited to cases involving allegations of juvenile delinquency, neglect or abuse, domestic violence, or mental health issues. The Committee believes such limitations properly balance the rights of the parties, the children, and those who have an interest in reading written decisions in matrimonial actions. Finally, the Committee notes that many recent published decisions in those types of cases already use initials rather than the parties’ full names.

For the foregoing reasons, the Committee supports the proposed amendment to 22 NYCRR § 202.16.