§ 6.03 MAINTAINING YOUR CLIENT'S PRIVACY
Parties engaged in family law litigation are often distressed to learn that they may be asked and required to disclose very sensitive, personal information during the course of their case. In addition to analyzing what information is relevant to seek and disclose, attorneys should consider how to maintain the client's privacy by avoiding the unnecessary disclosure of information or documents. Practitioners need to be particularly careful in their use of technological aids in their practice. The use of the internet, email, cloud storage, and e-discovery all present the possibility of inadvertent disclosure of confidential client information. Client privacy concerns is an area of scrutiny by the WSBA and the judiciary alike, with the judiciary working to maintain a proper balance between the right of public access to the courts and protection of personal confidentiality.
The remainder of this chapter discusses considerations about how to protect a client's personal or confidential information:
1. in the discovery process;
2. under GR 22 (Access to Family Law and Guardianship Court Records);
3. under GR 15 (Destruction, Sealing and Redacting of Court Records);
4. in pleadings;
5. in the divorce finalization process;
6. with regard to medical records; and
7. with regard to the use of technology.
[1] The Discovery Process
A client may be asked in interrogatories or other discovery to reveal personal matters or to produce documents that contain sensitive or confidential information about the client's business, family, medical records, health, and finances. Clients are understandably reluctant to disclose this information. An attorney must be able to explain to the client whether the information or documents are relevant and why the documents/information must be disclosed to the other side even when the information is deeply personal. In addition, an attorney should be able to explain to the client what procedures, if any, can be employed to protect the client's privacy when appropriate.
Any analysis of whether a client's discovery responses can be limited begins with a recognition of and explanation to the client on the basic responsibility to promptly provide complete and accurate responses to discovery requests, and that failure to do so is sanctionable. "[A] spirit of cooperation and forthrightness during the discovery process is necessary for the proper functioning of modern trials." Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 342, 858 P.2d 1054 (1993). It is also within the discretion of the court to entertain sanctions if the party seeking an order with regard to discovery (CR 26-37) fails to comply with CR 26(i), which requires attorneys to confer in an attempt to resolve the discovery issue. See Amy v. Kmart of Wash. LLC, 153 Wn. App. 846, 223 P.3d 1247 (2009). For further discussion, see Chapter 22 (Discovery) of this deskbook.
Parties to a marriage may also have a fiduciary duty to each other that does not cease to exist merely because there is a divorce. See, e.g., Seals v. Seals, 22 Wn. App. 652, 590 P.2d 1301 (1979) (duty to disclose); In re Marriage of Burkey, 36 Wn. App. 487, 675 P.2d 619 (1984) (no duty when both parties already aware of the community property).
An attorney seeking to limit a client's discovery responses has several options, including the following:
1. objecting to the request and/or seeking a protective order under CR 26(c) if the request appears to be made purely to annoy, embarrass, harass, or intimidate, or to cause undue burden or expense;
2. objecting to the request under CR 26(b)(1) if the request is unreasonably duplicative, obtainable from some other source that is less burdensome or less expensive, or unduly burdensome or expensive given the needs of the case and resources of the parties;
3. conferring with opposing counsel about agreeing to limit the scope of discovery;
4. developing a discovery plan under CR 26(f); or
5. seeking a protective order under CR 26(c). This should begin with a request to opposing counsel to an agreed entry of a protective order under CR 26(c). If counsel will not agree, a motion must be brought and good cause shown. The court may enter an order that prevents the discovery entirely; imposes limits to a certain time or place, method of discovery, or issues; prevents disclosure of the information to others; or prevents disclosure of trade secrets or confidential business information.
When considering how to proceed, keep in mind RPC 3.4, which prohibits attorneys from unlawfully obstructing another party's access to evidence, making frivolous discovery requests, or failing to make a reasonably diligent effort to comply with proper discovery requests.
Finally, attorneys need to review their local court rules and court orders that may mandate disclosure and/or access to certain records. For example, several counties issue "automatic temporary orders" in family law cases, and those orders may include a directive that both parties have a right to access to all tax, financial, legal, and household records, and that reasonable access to those records cannot be denied. See e.g., Clark County LCR 4.1(f); King County LFLR 4(h); Island County LSPR 94.04(b); Snohomish County SPR 94.04(b); Whatcom County SPR 94.08(b); Yakima County LFLR 1(a).
In short, attorneys should conduct an analysis of whether the requested information can be protected in some manner and discuss the options with the client.
[2] GR 22—Access to Family Law and Guardianship Court Records
GR 22 can also be used to protect a client's personal information. This rule governs access to defined health care records, financial information, and personal identifiers in family law and guardianship cases. Although it is the policy of the court to facilitate public access to court records (see GR 31), the court also provides reasonable protections for personally sensitive information such as health care records, Social Security numbers, driver's license numbers, dates of birth, retirement plans, tax returns, paystubs, and a laundry list of other personal financial information and documents. See GR 22; GR 31. There are court form "coversheets" for sealing the various records. See Court Forms: Cover Sheets, WASHINGTON COURTS, https://www.courts.wa.gov/forms/?fa=forms.contribute&formID=59 (last visited Jan. 12, 2022). You should periodically check for any updates to those forms. GR 31 places an obligation and burden on parties and counsel to omit or redact from documents Social Security numbers, financial account numbers, and driver's license numbers. GR 31(e).
A client's financial records such as income tax returns, W-2s, credit card statements, bank accounts, wage stubs, loan applications, etc., are protected by filing those records under seal using the "Sealed Financial Source Document" cover sheet. GR 22(g). Likewise, use GR 22(g) to protect sensitive health care records, which include all past, present, and future physical and mental health records and payments, and genetic parentage testing, by filing those documents under seal using a "Sealed Personal Health Care Record" cover sheet.
GR 22(e) provides protection for detailed parenting evaluations, Family Court Service Risk Assessment Reports, Child Protective Services (CPS) reports, sexual abuse evaluations, and reports from a guardian ad litem or Court Appointed Special Advocate (CASA), all of which should be filed using a "Sealed Confidential Report" cover sheet. There is a "public document" filing for these types of sealed detailed reports, which includes a simple listing of materials and information reviewed, individuals contacted, tests conducted or reviewed, and the conclusions and recommendations. The detailed facts of the main report are filed as protected, sealed records.
Review GR 22 and the relevant county's local rules to determine what the current practice is regarding children's names.
If a client needs an accommodation from the court due to a disability, you can protect the information about their disability and their medical and health information records by filing it under seal using a "Sealed Medical and Health Information" coversheet pursuant to GR 33.
[3] GR 15—Destruction, Sealing, and Redaction of Court Records
Most family law clients would prefer not to have the details of their lives available for perusal by anyone who requests the court file. The desire for privacy is understandable, and practitioners can use GR 22 to protect a fair bit of private or sensitive information. However, the court's policy is one of facilitating access to court records as set forth in WASH. CONST. art. I, § 10, while also protecting reasonable expectations of personal privacy as set forth in WASH. CONST. art. I, § 7. See GR 31. Chapter 25 (Family Law Court Records) of this deskbook addresses family court records in depth.
Family law practitioners need to understand that it is not easy to seal civil case files. Although GR 15 permits the sealing or destruction of records under very limited circumstances, in family law matters most requests will be to redact or seal specific records. If a client is looking to have a record sealed or redacted, it must be justified with "compelling privacy or safety concerns that outweigh the public interest in access to the court record." GR 15(c)(2). Keep in mind that a mere agreement of the parties typically will not be a sufficient basis for sealing or redacting court records, and if redacting information will adequately resolve privacy or safety concerns, then the court may not seal the entire record. GR 15(c)(3).
When seeking to have records sealed, the five-factor test set forth in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982), needs to be satisfied: (1) a determination of the need for sealing, (2) notice to the interested parties, (3) use of the least restrictive means available, (4) closure of no more records than...
