eDiscovery Daily Blog
Why Does Production Have to be Such a Big Production?, Part Two
Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. He has also been a great addition to our webinar program, participating with me on several recent webinars. Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27. Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog. Enjoy! – Doug
Tom’s overview is split into four parts, so we’ll cover each part separately. Part one was Monday, here’s the second part.
Redaction Issues and Confidentiality Considerations
One of the most common technical mistakes lawyers make involve issues with redactions – there are frequent stories that make the news regarding lawyers publishing documents that were improperly redacted. Redaction issues are also the most common error in document productions in eDiscovery as well. There are a variety of issues associated with redactions and they have considerable impact on a lawyer’s ethical duty to confidentiality. Let’s take a look.
Image Redaction Issues
Some of the more common mistakes I see involve redaction issues on images. And they go back years. In 2009, the TSA released a manual on the Internet that had not been redacted properly. In 2013, a Chicago lawyer was reprimanded when he failed to ensure that personal information was redacted in federal student loan collection actions he filed on behalf of the U.S. government.
In 2014, a Kentucky lawyer received a public reprimand for, among other misconduct, failing to redact his client’s social security number in bankruptcy filings he made on her behalf. Also in 2014, The New York Times reportedly failed to properly redact a PDF file of leaked National Security Administration documents and inadvertently released the name of an NSA agent.
In 2018, a reporter investigating an SEC settlement with alleged fraudsters downloaded from the federal PACER database an affidavit from one of the defendants in the matter. The PDF file contained about 100 pages of financial transactions that were blacked out in the PDF file. But when the affidavit was copied and pasted into another application’s text file for uploading, the black redaction boxes vanished, revealing all the private financial information that was supposed to be hidden. A clerk at the federal courthouse where the document in question was filed said that the party filing the document was responsible for ensuring that it was properly redacted.
Also, in 2018, the school district in the Parkland, Florida high school shootings case, apparently didn’t properly redact a document regarding the alleged shooter, which contained confidential information about him. A Florida newspaper reported that the method used “made it possible for anyone to read the blacked-out portions by copying and pasting them into another file,” which the newspaper did — drawing a contempt threat from the judge presiding over the criminal case.
More recently, lawyers for President Trump’s former campaign chairman, Paul Manafort, apparently failed to redact a federal court document properly, permitting the blacked-out text to be viewed “with a few keystrokes.”
Clearly, redaction issues on images are common. Common mistakes here include:
- Failing to “burn-in” the redaction on the image
- Not updating or re-OCRing the text files to match
- Providing un-redacted native files
- Failing to redact certain metadata
- Improperly using redaction software
Other Redaction Issues
The last point above involves issues for documents that have been generated in a software and then either converted or printed before redaction.
The most common type of conversion involves saving a word processing document to PDF. How do you best handle redactions in that process? Here’s a few tips:
- Edit out sensitive information BEFORE converting.
- Be aware of any metadata that may carry into the PDF file. PDF conversion deletes MOST metadata but some may transfer (eg, Comments in Word)
- Use non-text PDF … image only
- Use the most current version of Adobe
Sometimes redaction involves paper. Hard to believe but true. Some attorneys still use a dark marker to manually cover over confidential information. Much like the Manafort case mentioned above where a simple color change in an electronic document didn’t completely hide text, using a marker on paper may also fail.
In a 2015 article, “The Perils of Redaction: Simple Steps to Protect Confidential Information,”, Mark Crandley, a partner in the litigation department of Barnes & Thornburg in Indianapolis, wrote that “many scanners are sensitive enough to perceive covered words even when the naked eye cannot.”
Lawyers have an ethical duty to preserve clients’ privileges and property. So, aside from risking potential civil liability, lawyers also could face disciplinary action when they fail to properly redact court documents. Lawyers who fail to properly redact information in confidential documents could run afoul of the American Bar Association’s rule on safeguarding client property, which has been adopted by most states.
We’ll publish Part 3 – Load File Failures – on Friday.
So, what do you think? Have you experienced problems with document productions in eDiscovery? As always, please share any comments you might have or if you’d like to know more about a particular topic.
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