Wade Clark Mulcahy LLP

The protection of confidential personal information has become an important part of doing business and in the practice of law. The unauthorized release or publication of such information can lead to significant consequences, including civil liability. However, not all disclosures will result in liability, as the New Jersey Appellate Division found in a recent decision.  

In Johnson et al. v. City of Hoboken and Kraus, plaintiffs initially filed suit against the City of Hoboken for alleged racial discrimination. In seeking summary judgment in that case, the law firm representing Hoboken filed certain documents on eCourts containing unredacted personal information concerning plaintiffs including Social Security numbers, driver’s license numbers, dates of birth and criminal history. The error was quickly discovered, and the firm successfully moved to have the information redacted from the public record.

Nonetheless, plaintiffs filed a separate lawsuit against the firm and several of its employees alleging a privacy violation, violation of New Jersey Court Rule 1:38-7, and intentional and negligent infliction of emotional distress. The trial court dismissed the claims finding, among other things, that there was no private cause of action under the court rule and that plaintiffs did not establish an invasion of privacy claim.  

The Appellate Division affirmed, holding that R. 1:38-7, which states that personal identifiers such as social security numbers and driver’s license numbers must be redacted before filing with the court, does not provide for a private cause of action against parties who inadvertently upload unredacted personal information. The Court also found that plaintiffs could not assert an invasion of privacy claim under the circumstances as the information was inadvertently uploaded for only a short period of time before it was removed. Plaintiffs could not assert negligent or intentional infliction of emotional distress claims because plaintiffs could not show that the defendants’ actions were “extreme and outrageous” or that plaintiffs sustained any emotional distress. Finally, the Court rejected plaintiffs’ claims that defendants violated plaintiffs’ rights under the New Jersey Constitution because such claims apply against state actors, not private individuals.

The Johnson case serves as a reminder that the disclosure of protected personal information in court filings can result in potential civil liability. While the Court correctly dismissed the claims in Johnson under the circumstances of that case, the decision serves as a warning for attorneys and parties to take extra care in handling and filing documents which contain protected information.