June 21, 2012
Proving a Negative: Redacting Confidential Financial Information in Elder Abuse Actions
Practice Tip: Your client has been accused of financial elder abuse, and vehemently denies that he or she has taken or secreted any of the elder’s money. You wish to share your client’s personal bank accounts records with opposing counsel pursuant to a stipulated protective order to prove there is no wrongdoing. Is your client’s financial information protected?
Under California Code of Civil Procedure section 2017.320(a) parties may enter into a stipulated protective order, protecting information acquired through discovery from dissemination. However, any information that is “evidence of abuse of an elder” is not protected from public disclosure by that protective order. Instead, a document containing evidence of elder abuse may be redacted to remove the information that is not evidence of elder abuse. Cal. Civ. Proc. Section 217.320(b). So, in producing a client’s financial records to show that there is no evidence of elder abuse pursuant to a protective order, counsel is actually producing documents that are not evidence of elder abuse. Counsel cannot redact these documents. Therefore, the stipulated protective order must contain carefully tailored language for filing al documents under seal with the court.
Ellen McKissock is a Shareholder in Hopkins & Carley’s Trust & Estate Litigation department.