My information has been compromised.

Submitted by JLP on

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Question: 

My information has been compromised. My bank informed me that some one in Canada was testing my credit card (putting very small amounts on it). I am in the middle of a custody fight with my x wife. I had to fill out a sworn financial statement and give it to her and the court. My current partner filed bankruptcy 6 months, I am not a party to it. My sworn financial statment with all my information (non redacted) was sent to the bakruptcy court. My information is now public. The only people that had this information were my x-wife the court and myself. what if anything can be done to her as she had to do it?

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DakotaLegal's picture

 

Submitted by DakotaLegal on

 
I’m agreeing that you probably have the right person identified (this kind of disclosure is a pretty common tactic by a spouse in a custody fight). The two major problems are, first, in being able to actually prove who did it, and then to establish the proper amount of damages. One important feature is to show that you did all you could to limit the fallout of having this information divulged…so let's begin there, and then move on to look at what it took in some specific cases to win a claim for wrongful release of information.
 
State and Federal Rules
 
If you can prove beyond a reasonable doubt how your wife released the information, you may have a claim under either federal or state law. Any federal claim will have to use a specific federal rule or law: the state claim may involve a “tort” (often called “publication of private facts”). Here’s a Colorado case laying out the rules for a tort claim… Robyn v. Phillips Petroleum Co., 774 F. Supp. 587 (D. Colo. 1991). In that case, a former employee discovered that her personnel file included a copy of her bank statement. The employee filed two tort claims: outrageous conduct and invasion of privacy. The court dismissed both claims, since there was no proof of how the employer had gotten the information.
 
You will want to look at one specific federal rule, since the release to a bankruptcy court will primarily involve federal along with possible Colorado state common law claims… Federal Rule [9037(a)]: http://www.law.cornell.edu/ uscode/html/ uscode11 a/usc_sec_11a_00009037----000-.html. I’ll mention this federal Rule again, when talking about your need to redact.
 
Besides tort claims at the state level, you may try to argue (if in a Colorado state court) there was a “per se” violation of specific statutory rights under Colorado law: unfortunately, right now, I could find no Colorado statute specifically covering access to this kind of “personnel” record. You may also consider a suit against your partner, since the data might have come through his action (or inaction). Again, these cases are not easy to win (because of difficulty in obtaining evidence), but may establish an end point to this form of harassment. http://digital.law. washington.edu/ dspace-law/bitstream/handle/ 1773.1/412/vol4 _no4_art11.pdf?seque. The risk in a losing suit is paying the winning sides legal fees.
 
Being Proactive To Limit Damages
 
Courts routinely expect anyone claiming to have been harmed by release of private information to also show they did everything reasonably possible to (a) stop the release and (b) limit the damages. Part of the equation to a court is that if someone didn’t act to protect themselves, the court won’t interfere in an emotionally laden dispute.
 
So…File For Private Info Removal/Redaction:
 
There’s a procedure for redacting this information. First, there are specific personal identifiers that are subject to redaction (and for that matter, liability for incorrect use or release):
 
Under a discovery Rule [9037(a)], personal identifiers that you can ask to keep private can be:
 
■Your SSN or Taxpayer ID (only last four (4) digits allowed)
■Minor’s names (only initials allowed)
■Dates of birth (only the year of birth is allowed)
■Financial Account Numbers (Only last four (4) digits allowed)
 
You petition the Bankruptcy Court to remove your indentifying information. This can be done either by a Motion or a petition to remove the information. Local rules vary, so find your bankruptcy court and ask (http://www.uscourts.gov/court_locator.aspx) and adapt a sample form (if they don’t have one) for your Redaction Request (http://www.nvb .uscourts.gov/ downloads /forms/NV_9037(RequestforReadaction).pdf).
 
You will also want to redact from the transcript company doing business with the bankruptcy court (check with the court clerk on the name and address of this company). You can look at how one bankruptcy court approaches this redaction of personal identifiers request, here http ://www.njb.uscourts.gov/sites/default/files/local_ rules/August_1_2012_LR_Package.pdf, and especially at page 97.
 
As you take these specific steps, keep track of all your efforts and costs. They will show your own good faith as well as providing both evidence and some further measure of real damages.
 
 

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DakotaLegal's picture

 

Submitted by DakotaLegal on

 
I’m agreeing that you probably have the right person identified (this kind of disclosure is a pretty common tactic by a spouse in a custody fight). The two major problems are, first, in being able to actually prove who did it, and then to establish the proper amount of damages. One important feature is to show that you did all you could to limit the fallout of having this information divulged…so let's begin there, and then move on to look at what it took in some specific cases to win a claim for wrongful release of information.
 
State and Federal Rules
 
If you can prove beyond a reasonable doubt how your wife released the information, you may have a claim under either federal or state law. Any federal claim will have to use a specific federal rule or law: the state claim may involve a “tort” (often called “publication of private facts”). Here’s a Colorado case laying out the rules for a tort claim… Robyn v. Phillips Petroleum Co., 774 F. Supp. 587 (D. Colo. 1991). In that case, a former employee discovered that her personnel file included a copy of her bank statement. The employee filed two tort claims: outrageous conduct and invasion of privacy. The court dismissed both claims, since there was no proof of how the employer had gotten the information.
 
You will want to look at one specific federal rule, since the release to a bankruptcy court will primarily involve federal along with possible Colorado state common law claims… Federal Rule [9037(a)]: http://www.law.cornell.edu/ uscode/html/ uscode11 a/usc_sec_11a_00009037----000-.html. I’ll mention this federal Rule again, when talking about your need to redact.
 
Besides tort claims at the state level, you may try to argue (if in a Colorado state court) there was a “per se” violation of specific statutory rights under Colorado law: unfortunately, right now, I could find no Colorado statute specifically covering access to this kind of “personnel” record. You may also consider a suit against your partner, since the data might have come through his action (or inaction). Again, these cases are not easy to win (because of difficulty in obtaining evidence), but may establish an end point to this form of harassment. http://digital.law. washington.edu/ dspace-law/bitstream/handle/ 1773.1/412/vol4 _no4_art11.pdf?seque. The risk in a losing suit is paying the winning sides legal fees.
 
Being Proactive To Limit Damages
 
Courts routinely expect anyone claiming to have been harmed by release of private information to also show they did everything reasonably possible to (a) stop the release and (b) limit the damages. Part of the equation to a court is that if someone didn’t act to protect themselves, the court won’t interfere in an emotionally laden dispute.
 
So…File For Private Info Removal/Redaction:
 
There’s a procedure for redacting this information. First, there are specific personal identifiers that are subject to redaction (and for that matter, liability for incorrect use or release):
 
Under a discovery Rule [9037(a)], personal identifiers that you can ask to keep private can be:
 
■Your SSN or Taxpayer ID (only last four (4) digits allowed)
■Minor’s names (only initials allowed)
■Dates of birth (only the year of birth is allowed)
■Financial Account Numbers (Only last four (4) digits allowed)
 
You petition the Bankruptcy Court to remove your indentifying information. This can be done either by a Motion or a petition to remove the information. Local rules vary, so find your bankruptcy court and ask (http://www.uscourts.gov/court_locator.aspx) and adapt a sample form (if they don’t have one) for your Redaction Request (http://www.nvb .uscourts.gov/ downloads /forms/NV_9037(RequestforReadaction).pdf).
 
You will also want to redact from the transcript company doing business with the bankruptcy court (check with the court clerk on the name and address of this company). You can look at how one bankruptcy court approaches this redaction of personal identifiers request, here http ://www.njb.uscourts.gov/sites/default/files/local_ rules/August_1_2012_LR_Package.pdf, and especially at page 97.
 
As you take these specific steps, keep track of all your efforts and costs. They will show your own good faith as well as providing both evidence and some further measure of real damages.