E-Alert Case Updates

New Maryland Rule 1-322.2 (Requiring Certificate by Attorney of Personal Identifier Information Redaction) Is Repealed

Repeal of Maryland Rule 1-322.2
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.courts.state.md.us/rules/reports/184th.pdf

New Maryland Rule 1-322.2 was supposed to take effect on July 1, 2014. However, due largely to rising concerns from county clerks of court, the implementation of the Rule was stayed until September 1, 2014. The Rule would have required that every pleading or paper filed in a litigated civil or criminal case in the Maryland State courts contain a certificate of compliance with Maryland Rule 1-322.1, the Rule requiring the exclusion of personal identifier information from court records. Personal identifier information includes “an individual’s Social Security number or taxpayer identification number, or the numeric or alphabetic characters of a financial or medical account identifier.” See Rule 1-322.1(b). Dates of birth (DOBs) were initially included in the definition of personal identifier information, but were subsequently dropped. Just recently, on August 26, 2014, the Court of Appeals voted to repeal Md. Rule 1-322.2, before it went into effect.

By way of background, with the implementation deadline for Md. Rule 1-322.2 fast approaching, the Rules Committee was receiving questions and expressions of concern from the clerks of the Circuit and District Courts regarding the scope of Rule 1-322.2. As a result of these concerns, the Rules Committee concluded that Rule 1-322.2 should be repealed and that a clarifying amendment should be made to Rule 1-322.1.

There were several reasons supporting the repeal of Md. Rule 1-322.1. First, although Rule 1-322.1 was derived from comparable Rules adopted by the Federal Judiciary and in many other States, Rule 1-322.2 was the invention of the Rules Committee, so as to place the burden of assuring compliance on the filer, through the device of a certificate of compliance, and to avoid the suggestion that clerks were to be responsible for reviewing documents and ensuring compliance. Second, a better way of making the burden on the filer more clear was by amending Rule 1-322.1. Third, an informal survey of the clerks indicated that after Md. Rule 1-322.1 went into effect, there were few instances in which violations of Md. Rule 1-322.1 were observed by the clerks or brought to the clerks’ attention, the implication being that the Rule was being observed without the need of the certificate required by Md. Rule 1-322.2. Fourth, in District Court, the bulk of the papers being filed are on pre-printed forms that do not seek prohibited information, yet, to comply with Rule 1-322.2, all, or nearly all, of the forms would have needed to be revised and reprinted. In short, there was considerable doubt whether Rule 1-322.2 was really necessary to assure compliance with Rule 1-322.1, and therefore, it was determined that Md. Rule 1-322.2 should be repealed and Md. Rule 1-322.1 should simply be revised. Md. Rule 1-322.1 was revised to clarify that the burden of ensuring compliance with Md. Rule 1-322.1 is on the filer—not the clerk. The redline revisions only of Md. Rule 1-322.1 are as follows:

(b) Generally — Except as otherwise provided in this Rule, required by law, permitted by court order, or required to implement a court order, the following personal identifier information shall not be included in any electronic or paper filing with a court the filer of any paper or electronic filing with a court shall not include in the filing the following personal identifier information…

In conclusion, Maryland litigators are still required to comply with Maryland Rule 1-322.1 regarding personal identifier information, however, the certificate of compliance that was going to be required starting on July 1, 2014, and which was stayed until September 1, 2014, has been eliminated.