N.D. R. Ct. 3.4

As amended through March 18, 2024

Rule 3.4 - Privacy Protection for Filings Made with the Court

(a) Definitions.

(1) "Confidential" means information in a court record as described in Rule 3.4(b)(1) or as ordered by the court, which is protected from public access but remains accessible to the court and the parties.

(2) "Redact" means to remove confidential information from a court record to protect it.

(3) "Sealed" means court records that are protected from public access, party access and access by unauthorized court personnel.

(b) Redacted Filings.

(1) Mandatory . Unless the court orders otherwise, a court record that contains an individual's social-security number, taxpayer-identification number, birth date, the name of an individual known to be a minor, or a financial-account number, including any credit, debit, investment or retirement account number, must include only:

(A) the last four digits of the social-security number and taxpayer-identification number;

(B) the year of the individual's birth;

(C) the minor's initials, unless the law requires the public disclosure of the minor's full name;

(D) the last four digits of the financial-account number; and

(E) if a victim requests, all victim contact information must be redacted from documents to be filed with the court in a criminal or delinquency case.

(2) Responsibility of Party or Nonparty to Redact. A party or nonparty making a filing with the court is solely responsible for ensuring that information required to be redacted under Rule 3.4(b)(1) does not appear on the filing.

(3) Exemptions from Redaction Requirement. The redaction requirement does not apply to the following:

(A) any case record not accessible to the public under N.D. Sup. Ct. Admin. R. 41(3)(b)(6) and (7);

(B) the record of an administrative or agency proceeding;

(C) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed;

(D) a filing covered by Rule 3.4(c);

(E) a defendant's date of birth in a court filing that is related to criminal matters, non-criminal motor vehicle and game and fish matters, and infractions.

(c) Procedure to Protect from Public Access .

(1) Parties may not seal otherwise public documents by consent or by labeling them "sealed" or "confidential".

(2) Motion. A party may move that a filing be designated "confidential" or "sealed." In its motion, the party must show that protection of the filing is justified under the factors listed in N.D. Sup. Ct. Admin. R. 41(4)(a). A motion to protect a filing from public access, and any supporting documents, must be filed as "sealed" until the court makes its ruling. A court record may not be sealed under these rules when reasonable redaction will adequately resolve the issues and protect the parties.

(3) Court Order. On motion, or on its own, the court may order that a filing be designated "confidential" or "sealed ." The court may later order that the filing be made public or order the person who made the filing to file a redacted version for the public record.

(d) Filing a Confidential Information Form.

(1) In General. A filing that contains redacted information must be filed together with a confidential information form (shown in Appendix H) that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The form will be confidential except as to the parties or as the court may direct. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.

(2) Defendant Information. In a criminal case, the prosecutor must file a confidential information form that includes, when known, the defendant's social security number.

(e) Non-conforming Documents.

(1) Waiver. A person waives the protection of Rule 3.4(b) as to the person's own information by filing it without redaction and not under seal or without moving that the information be otherwise protected from public access.

(2) Sanctions. If a party fails to comply with this rule, the court on motion , or on its own , may order the pleading or other document to be returned to the party for reformation prior to filing, with an extension of any deadline to complete the filing. If the document has been filed, and an order to reform is not obeyed, the court may order the document stricken.

N.D. R. Ct. 3.4

Joint Procedure Committee Minutes of January 12, 2023, pages 2-3; September 30, 2021, page 10; April 29, 2021, pages 2-4; January 28, 2021, pages 19-20; April 24, 2020, pages 4-5; September 24-25, 2009, pages 3-7; May 21-22, 2009, pages 28-44; January 24, 2008, pages 9-12; October 11-12, 2007, pages 28-30; April 26-27, 2007, page 31.

Statutes Affected: Considered: N.D.C.C. ch. 31-15, § 14-05-02.1

EXPLANATORY NOTE

Rule 3.4 was adopted effective 3/1/2009. Rule 3.4 was amended, effective 3/15/2009;3/1/2010;5/1/2017; 3/1/2021; 4/1/2023.

Parties should limit the amount of information required to be redacted under paragraph (b)(1) they include in court filings. Paragraph (b)(1) requires parties to redact designated information when its inclusion in a filing cannot be avoided.

Paragraph (b)(1)'s redaction requirements are intended to exclude designated information from public disclosure. Unless a document is also placed in a non-restricted file, redaction of documents filed in cases that are confidential by law or rule is not required.

Documents containing information redacted under paragraph (b)(1) must be filed together with a confidential information form under subdivision (d) when a party is required by statute, policy or rule to include information required to be redacted under paragraph (b)(1) in the document. For example, N.D.C.C. § 14-05-02.1 requires a divorce decree to contain the social security numbers of the parties to the divorce. Under subdivision (d), a party to a divorce case may comply with this statute and the redaction requirements of this rule by filing a confidential information form and a redacted version of the decree in the public part of the file.

A new subdivision (a) was adopted, effective 4/1/2023, to add a definitions section to the rule.

A new subdivision (b) was adopted, effective 4/1/2023, to consolidate the rule's provisions relating to redaction.

Paragraph (b)(1), formerly paragraph (a)(1), was amended, effective 3/1/2010, to eliminate the requirement to redact addresses in criminal matters.

Subparagraph (b)(1)(E), formerly paragraph (a)(2), was adopted, effective May 1, 2017, to require, upon request of the victim, the redaction of all victim contact information from documents before they may be filed with the court in a criminal or delinquency case. This right is granted by N.D. Const. Art. I, § 25(1)(e). "Victim" is defined in N.D. Const. Art. I, § 25(4).

Paragraph (b)(2), formerly subdivision (b), was adopted, effective 3/1/2010, to indicate it is the responsibility of a party or nonparty making a court filing to refrain from including information required to be redacted under paragraph (b)(1) in the filing. The clerk of court is not required to review a document filed with the court for compliance with this rule.

Subparagraph (b)(1)(c) was amended, effective 4/1/2023, to require the use of a minor's initials unless the law requires public disclosure of the minor's full name.

Subparagraph (b)(3)(E), formerly subdivision (c), was amended, effective3/1/2010, to add a redaction exemption for a defendant's date of birth in a court filing that is related to criminal matters, non-criminal motor vehicle and game and fish matters, and infractions.

A new subdivision (c) was adopted, effective 4/1/2023, to clarify the process for protecting a filing from public access.

Subdivision (d), formerly subdivision (f), was amended, effective 3/1/2010, to require that state's attorneys file confidential information forms containing certain defendant information when known.

Subdivision (e), formerly subdivision (g), was amended, effective 3/1/2010, to allow courts to order reformation of documents not in conformity with this rule prior to filing.

Rule 3.4 was amended November 25, 2020, effective 3/1/2021, to delete the term "affidavit" and replace it with "declaration." This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.

N.D.R.Ct. 3.1 (Pleadings); N.D.Sup.Ct.Admin.R. 41 (Access to Judicial Records)