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9/21/2009
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Lawsuit Tied To Bank Gmail Error Can't Be Secret, Judge Says

A lawsuit seeking to identify a Gmail user who accidentally received confidential bank information must proceed in public.

A bank's effort to prevent the disclosure of information about a data breach arising from an errant Gmail message has been rejected by a federal judge in San Jose, California.

On Friday, Judge Ronald M. Whyte of the United States District Court for the Northern District of California, acting on behalf of another judge, denied a motion by the Wyoming-based Rocky Mountain Bank to seal its lawsuit against Google.

"An attempt by a bank to shield information about an unauthorized disclosure of confidential customer information until it can determine whether or not that information has been further disclosed and/or misused does not constitute a compelling reason that overrides the public's common law right of access to court filings," the judge said in his ruling.

The lawsuit seeks to force Google to reveal information about a Gmail account holder who received a misdirected e-mail sent by a bank employee.

The message, intended for a bank customer, included an attachment that should not have been sent containing confidential customer information for 1,325 individual and business accounts, according to the court's summary of the case. The data in question is said to include names, addresses, tax identification numbers, and loan information.

According to the facts summarized in the judge's order -- the actual complaint has not yet been made available in response to the judge's ruling -- the bank employee attempted to e-mail loan statements to one of the bank's customers who had requested them. But the message went to the wrong person, with a confidential file.

"After learning of its inadvertent disclosure of confidential customer information, Plaintiff tried to recall the e-mail without success," the court's summary states. "It then sent another e-mail to the Gmail address, instructing the recipient to immediately delete the prior e-mail and the attached file in its entirety without opening or reviewing it. Plaintiff also requested that the recipient contact Plaintiff to discuss his or her actions. The recipient has not responded to Plaintiff's e-mail."

Representatives of Rocky Mountain Bank, based in Wilson, Wyoming, did not return repeated calls seeking either confirmation or denial of the bank's involvement in the lawsuit.

Neil Arney, an attorney for the plaintiff with the Denver, Colorado branch of law firm Kutak Rock, declined to provide any information about the case. Separately, a spokesperson for the firm said he had been instructed by attorneys working on the Rocky Mountain Bank case not to respond to media inquiries.

A clerk for the court said that the case was still sealed until the parties responded to the judge's order and declined to provide further information. The judge has allowed the Gmail address of the accidental recipient of the bank's data to be redacted in court documents.

Rocky Mountain Bank filed its lawsuit because it asked Google to provide information about the account holder who received the errant message and Google declined to provide any information without a court order.

Google said that it is waiting for the bank to comply with the judge's order that it resubmit its filing before deciding on a response. "When Google receives legal process, such as court orders and subpoenas, where possible we promptly provide notice to users to allow them to object to those requests for information," a company spokesperson said in an e-mailed statement. "In this case, RMB must comply with proper court process, and the court has required it to resubmit its papers. Once we have a chance to review these papers, we will determine our response."

The judge's ruling sets Monday, September 21, as the deadline for the plaintiff to resubmit the filing.


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