Liberty Life Insurance Company v. Myers et al

Filing 276

ORDER denying Defendant Eric L. Myer's 245 Motion to Strike. (See document for further details). Signed by Judge James A Teilborg on 2/11/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Liberty Life Insurance Company,
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No. CV 10-2024-PHX-JAT
Plaintiff,

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ORDER
v.

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Eric L. Myers, et al.,
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Defendants.
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Pending before the Court is Defendant Eric L. Myers’ Motion to Strike Plaintiff’s

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Motion for Partial Summary Judgment (Doc. 228), Plaintiff’s Statement of Facts in

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Support of the Motion for Partial Summary Judgment (Doc. 229), and all of the extensions

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to Doc. 229. (Doc. 245). Plaintiff has filed a Response (Doc. 246) and Defendant has

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filed a Reply (Doc. 247).

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I.

BACKGROUND

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On March 30, 2012, Plaintiff filed its Motion for Partial Summary Judgment (Doc.

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228) and the accompanying statement of facts and exhibits to that motion (Doc. 229; Doc.

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229-1; Doc. 229-2; Doc. 229-3; Doc. 229-4; Doc. 229-5). Defendant has pointed out that

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these documents contain instances of Defendant’s unredacted social security number and

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birth date. (See Doc. 229-3 at 5, 29, 37, 43).

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II.

DISCUSSION

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As an initial matter, Defendant has not shown why Plaintiff’s Motion for

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Summary Judgment (Doc. 228) should be struck from the record. Defendant has not

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proven that Doc. 228 contains any information subject to the redaction requirements of

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Federal Rule of Civil Procedure 5.2. Accordingly, the Court denies Defendant’s request

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to strike Doc. 228.

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Redaction requirements for filings are governed by Federal Rule of Civil

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Procedure 5.2. Under Rule 5.2(a), filings may only include the year of an individual’s

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birth and the last four digits of the social-security number. Fed. R. Civ. Pro. 5.2(a)(1)-(2).

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Under Federal Rule of Civil Procedure 5.2(b), however, the redaction requirement does

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not apply to the official record of a state-court proceeding and the record of a court or

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tribunal, if that record was not subject to the redaction requirement when originally filed.

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Id. at 5.2(b)(3)-(4). Further, Rule 5.2(h) states “[a] person waives the protection of Rule

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5.2(a) as to the person’s own information by filing it without redaction and not under

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seal.”

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Defendant has filed numerous documents with the Court that includes his birth

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date. (See Doc. 169-1; Doc. 176 at 10-11). Under Rule 5.2(h) this waives any privacy

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Defendant had in that information.

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The instances where Defendant’s social security number was not redacted in

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Plaintiff’s filings, which Defendant points to as grounds to strike Doc. 229-1, were all part

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of the official record in Maricopa County Superior Court. The exhibits challenged by

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Defendant were all documents originally attached as exhibits to Defendant Donald Myers’

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(“Donald”) petition for a death certificate for Defendant that Donald filed in 1997. (See

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Doc. 229-1 at 2-45). In addition, Defendant has also filed documents containing his social

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security number in his probate action in state court. (Doc. 246 at 6).

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In Richards v. Great Western Ins. Co., No. 11-CV-965, 2012 WL 695991, at *12

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(D. Minn. Jan. 13, 2012), the district court found that when a party filed information

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subject to redaction in an attachment to a pleading the party filed in state court, that the
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party had waived any privacy in that information. The district court cited Federal Rule of

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Civil Procedure 5.2(b)(3)-(4) and Rule 5.2(h). Id. The Court agrees with the district

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court’s reasoning and conclusion in Richards. Regardless of whether Defendant was

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required to or not, Defendant used his unredacted social security number in a pleading in

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state court and that pleading is part of the record in this case. Further, Donald’s petition

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for a death certificate that contains Defendant’s unredacted social security number is part

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of the official record of a state court proceeding. Under Rule 5.2(b)(3) the redaction

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requirement does not apply to the documents Plaintiff filed as an attachment to its

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Statement of Facts. (Doc. 229-1 at 2-45).

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V.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED denying Defendant Eric L. Myer’s Motion to Strike. (Doc.

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245).
Dated this 11th day of February, 2013.

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