Counting Days for Statutes of Limitation

My understanding has long been that in counting out time for a statute of limitations, one begins with the day aftrer the triggering event. The Federal Rules of Civil Procedure tell us to do that (Fed. R. Civ. P. 6(a)(1)(A)), and my state jurisdiction, Illinois, has a statute that seems to say so as well (the Statute on Statutes, 5 ILCS 70). The Illinois provisions states:

"The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded." (5 ILCS 70/1.11.)

Federal Rule 6(a)(1)(A) uses similar language, telling us to "exclude the day of the event that triggers the period".

This seems straightforward enough. However, as Joseph R. Marconi recently wrote in an article published by ISBA Mutual (a provider of lawyers' professional liability insurance), it may not be as clear as we thought. One intermediate appellate court and one Justice of the Illinois Supreme Court have treated the issue as subject to debate, raising the possibility that a limitations period actually expires on the day before the anniversary date of a triggering event. See his article, "What Can You Count On These Days?" for details.

One thing is clear -- don't wait until the last day to file. While the law seems to be settled for now, even the mere possibility that the ultimate day is really the penultimate day should be enough incentive to file earlier.


Illinois Supreme Court Requires Redaction of Social Security Numbers in Filings Starting in 2012

Pursuant to Section 40 of the Identity Protection Act, 5 ILCS 179/40, passed in 2010 and designed to protect Social Security numbers, the Illinois Supreme Court has adopted new Rule 138 requiring parties not to include Social Security numbers within any filings "unless required for a particular filing". Presumably that means you can't include a Social Security number unless there is a good reason that the number itself matters to a particular filing. Such a situation is hard to imagine because a filer generally should be able to refer to a number's existence without actually spreading the number itself of record. For example, a claim about identity theft could be drafted to satisfy pleading requirements without revealing to the world the actual Social Security number at issue. In any event, if you must include the number the rule requires that you use just the last four digits in the public filing, and accompany it with a sealed filing disclosing the full number.

The rule does not specify how documents that the filer did not create (e.g., photocopied exhibits) that include embedded Social Security numbers should be brought into compliance. However, the wording of the rule implies that the filer should redact the document to make the number unreadable.

Filers should take care that their redaction technique actually accomplishes the redaction, becuase sometimes when you think something has been redacted, the supposedly covered-up information is still accessible. See the Administrative Office of U.S. Courts' admonition here, and an interesting discussion of failed redaction at this blog. The National Security Agency has published some tips on ways to properly redact documents, available here and here. Some district courts have posts about it, such as the District of New Jersey.

The new rule also states that the Illinois courts are not responsible for checking individual filings for compliance. In other words, a clerk is not supposed to take on the responsiblity of checking your filing to see whether you let a Social Security number slip through. The only policing mechanism is that "a party or identified person" who sees that a Social Security number has been publicly filed can move the court to order compliance, and if they prove the infraction was "willful" then they can be awarded fees and costs for bringing the motion. This rule should not spawn a cottage industry of 'file scrubbers' who troll the dockets looking for infractions because only a party to the actual case or the person whose Socual Security number was disclosed appear to have standing to file the motion.

The new rule originally was to be effective starting November 1, 2011. However, the court has now changed the effective date to January 1, 2012.

This rule brings the Illinois courts in line with federal courts, whose Judicial Conference began addressing this issue in 2000 (see their report here), which led to the adoption of rules such as Fed. R. Civ. P. 5.2 (effective Dec. 1, 2007) requiring redacted filings.


Experts in Federal Practice

Today I spoke at the annual federal civil procedure update seminar presented in Chicago by the Practising Law Institute. This year's program was entitled “Federal Civil Practice Update 2011: A Practical Guide to New Developments, Procedures & Strategies.” I presented two topics relating to experts in federal practice: (1) methods of challenging an opponent’s experts, and (2) the 12/1/2010 amendments to the Federal Rules of Civil Procedure regarding expert discovery. I authored two articles that were published in the PLI Handbook for the seminar, which I am making available for download here:

"Challenging An Expert’s Opinion and Testimony"

"The 2010 Amendments to the Expert Discovery Rules"

I hope you find these materials useful.