Publication of Social Security Number in Lawsuit

The case of Johnson v. Johnson and Bell, LTD., 2014 IL App (1st) 122677 (February 24, 2014), considered this issue and ruled that the litigation privilege precluded any liability.

Plaintiff’s personal injury action against Target was removed to federal district court. In connection with the final pretrial memorandum, certain documents containing plaintiff’s personal information including her social security number, date of birth, financial information and medical information were all filed. After a verdict for Target, plaintiff appealed to the 7th Circuit which is when plaintiff’s counsel discovered that plaintiff’s personal information had not been redacted by the defendants as plaintiff’s counsel had requested pursuant to Fed. R. Civ. P. 5.2(a).

Plaintiff filed a motion in the trial court asking to have the pleadings redacted and for sanctions. The motion was granted in part. Plaintiff then filed another motion in the 7th Circuit which ordered certain exhibits placed under seal but again denied sanctions.

Plaintiff then filed an action in the Circuit Court of Cook County against Target’s lawyers for invasion of privacy, negligence, and negligent infliction of emotional distress stemming from the failure to redact certain personal information from documents. The Circuit Court dismissed the complaint and an appeal was filed to the Appellate Court. Justice Connors, with Justices Cunningham and Delort concurring, affirmed the dismissal for the reasoning that attorneys enjoy an immunity from defamation actions arising out of a judicial proceeding. The Court relied on Restatement (Second) of Torts § 586 (1977). The Court referred to it as an absolute privilege which “provides a complete bar to a claim for defamation, regardless of the defendant's motive or the unreasonableness of his conduct” citing Thompson v. Frank, 313 Ill. App. 3d 661, 663 (2000).

So, at the end of the day, we have a situation where a party’s personal financial information was made public as part of the court record, albeit inadvertently, and given the chance to redact the materials to remove the personal information, took no steps to protect the information, and suffered no adverse consequences.

We have rules which protect an individual’s personal information from disclosure. Section 40 of the Identity Protection Act, 5 ILCS 179/40, passed in 2010 protects disclosure of Social Security numbers. In response the Illinois Supreme Court adopted Rule 138, which went into effect on 1/1/2012, prohibiting inclusion of Social Security numbers within any filings "unless required for a particular filing." (It is difficult to imagine any scenario in which it would be required.) Fed.R.Civ.P. 5.2 (effective Dec. 1, 2007) requires redacted pleadings to protect confidential information such as a Social Security Numbers.

The problem with all of these rules is that there are no penalties for disclosures of confidential personal information unless it ca be shown that it was deliberate.