Redacted legal documents can create a host of issues when not handled properly during document review. Here are some common redaction mistakes – and tips on how to avoid them.
As legal counsel, you’re entrusted to protect your client’s most confidential information – which makes it even more frustrating when we hear horror stories about lawyers failing to properly redact such information from documents produced in litigation. It could be simple oversight, but lawyers should (must) know better and manifest competence to avoid embarrassing – and sanctionable – ediscovery facepalms.
To be fair, there are several reasons why information might need to be redacted. Most of the time it’s to protect personal identifiable information (PII), sensitive business information, or some other confidential/privileged coverage. In rare instances, parties might agree to redact information they deem non-relevant to the matter so they can focus on the most pertinent details.
Cringeworthy Redaction Gaffes
In the world of paper productions, redactions were a manual process. When a document needed to have information redacted, we would make a copy and then use a permanent marker to make a thick black mark over the privileged text. Then we’d make another copy of the marked-up document to further ensure the underlying text remained hidden and didn’t bleed through. In other scenarios, folks might use White-Out or correction tape to obscure and hide the text, but these methods weren’t always foolproof.
In fact, a major blunder recently occurred when Sony was required to produce documents in the Federal Trade Commission v. Microsoft, 3:23-cv-02880, (N.D. Cal.) matter. They allegedly used a black Sharpie marker in an attempt to redact proprietary financial information, inadvertently disclosing profit margins the company certainly did not want to be made public. Did the printed text bleed through the Sharpie marks? Did the (presumably technologically competent) legal team use some other inadequate tools for redaction and fail to check their work?
Manual redaction procedures look different in the digital world, but still seem to confuse legal professionals. The most notable act of carelessness involves opening a PDF and simply drawing a black box/rectangle over text to be hidden and calling it complete. But what a vast majority of lawyers fail to understand is that PDF files have both an image layer AND a text layer. Drawing a black box hides the content on the image layer but the text layer stays intact – that means anyone can still search the text or simply highlight the “redacted” area to copy and paste the text into another document.
This debacle is much more common in today’s world of PDFs and digital files, but most folks may only recall the more notorious and newsworthy incidents. For example, Paul Manafort’s lawyers attempted to redact PDFs with black boxes, but left the underlying text intact that revealed Mr. Manafort continued to make false statements after signing a plea deal. Or when Democrats on the House Benghazi Committee attempted to redact the transcripts of Sidney Blumenthal’s testimony that appeared to shed a dark spot on both sides of Congress’ dealings with Mr. Blumenthal.
Why do these easily avoidable problems continue to happen? Either legal teams are just being sloppy, or they haven’t educated themselves on the risks and benefits of using the proper tool for the job (see Comment 8 of Model Rule 1.1).
Maintaining Competence
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” – Model Rule 1.1, Comment 8
Bad News for Bad Redactions
Perhaps the most unsettling consequence of a redaction snafu is simply the embarrassment for the lawyer responsible, coupled with the client’s outrage when they realize what you’ve allowed to happen. It can harm your personal reputation as well as your practice.
The fallout can certainly go further – one magistrate judge demanded counsel explain why they should not be sanctioned for a memorandum filed with the court that exposed testimony that was protected by grand jury secrecy rules. The lawyer replied that there was a “technical weakness” in the redaction process when a Microsoft Word document was converted to PDF and black boxes were applied. The lawyer said the redactions were “defeated” by a journalist who simply selected and copied the black boxes and subsequently pasted the text into a new document.
Another court granted a plaintiff’s motion for sanctions when the defendant failed to properly redact documents containing confidential information (e.g. social security number, financial account number, birthdays, etc.). The Court stated that Defendant’s “failure to comply with the Federal Rules has placed privileged personal information on the court’s CM/ECF system, an internet system, and has cost [Plaintiff] and the court time and energy in sealing the aforementioned documents.” The Court allowed Plaintiff to recover reasonable attorney’s fees related to the motion to seal and the motion for sanctions.
Agree to Disagree on Redacted Legal Documents
The honest truth is we’re all human, and mistakes will be made no matter how careful we are. It’s therefore prudent to make sure we have failsafes in place such as baking in a clawback agreement to your ESI Protocol and/or an FRE 502(d) agreement.
We firmly believe almost every litigation matter could benefit from an ESI protocol that governs the logistics and specifics of document productions. A typical ESI protocol will establish guidelines for the file formats governing document productions, including how to handle native files, text recognition, and the exchange of metadata extracted from electronic files.
A pertinent clause to include in your ESI protocol is to specify how redactions should be applied, including the reasoning (e.g. confidentiality, privilege, non-relevant, etc.), so that there are adequate grounds for clawing back inadvertently or mis-redacted information.
Also consider filing an FRE 502(d) agreement which prevents unintentional productions of privileged and protected information from resulting in a waiver of that precious privilege.
Using the Proper Tool for Proper Redactions
The most important rule for proper redactions is simply to use the right tool for the job. Anything less and you set yourself up for the inevitable oversight, embarrassment, or sanction.
Many PDF software packages can apply redactions, but you must use the right tool and functions. For example, Acrobat Standard allows you to draw a “black box” anywhere on the PDF (including over text), but that is NOT a true redaction – it merely draws a black box on the image layer. You must use the Acrobat Pro version – and follow the right steps – if you intend to “scrub” and redact the text layer (see comparison).
But using PDF software such as Acrobat means you’ll have to wrestle with the additional burden of manually tracking which PDFs have been redacted, where the originals & copies are stored, and who redacted what. And this assumes you’ve already manually converted every file into a PDF – that’s all a lot of work.
That’s why an ediscovery review platform is your absolute best option for preventing any embarrassing or irresponsible redaction blunders. A platform like Nextpoint keeps all your files organized and intact, takes care of any image conversions that need to be made, tracks all redactions and annotations, maintains working copies for your reference, and alerts you to double-check your redactions before anything is produced.
In Nextpoint, you can click and draw a box on a document to redact information, but since this is a tool specifically designed for the job, the box remains transparent so you can see exactly what is being redacted and make any necessary corrections. The final redaction isn’t applied until the very end when you’re creating a production. In addition, all redactions and annotations are tracked so you can see exactly who did what and when. And for each redaction, you can note the reason so that no one in the future has to guess why a redaction was created.
When you’re ready to produce, the redactions get “burned in” and the underlying text is removed in the production file (you can always still access the original document in your database). Your redacted legal documents are secure – there’s no way opposing counsel can see what lies beneath the black boxes when they’re created in a trusted ediscovery platform.
Redactions in the digital world are actually easy to accomplish, but you must use the right tool for the job and be competent in how they work. Unfortunately, many attorneys have refused to heed these warnings, which means we will continue to read about them in the headlines.
★ Essential Tips for Protecting Privileged Information in 2023
Improperly redacted legal documents aren’t the only way legal teams have let privileged information slip through the cracks. In our modern digital age, it’s easier than ever to make a mistake that results in the disclosure of privileged material. Our free eGuide has been freshly updated to address current challenges surrounding privilege review and protection. Download the guide today – you don’t want to be the next name in the headlines.
