The Art of Redacting Privileged Data

In the old days, redacting privileged data from a document was simple. I would pull out my black Sharpie, cross out privileged words, and record the redaction on a privilege log. Attorneys produced redacted documents with full confidence that their client's privileged information would remain concealed. In today's age of electronic data discovery, attorneys can no longer retain the same confidence.

In 2005, I first witnessed the severe consequences of failing to understand the mechanics of the EDD production process. Opposing counsel produced hundreds of thousands of e-documents. I loaded these documents into a computer program from Ipro Tech Inc. that helps users view the produced documents as images, and then perform keyword searches.

These keyword searches yielded a surprising phenomenon: They would identify documents where the searched-for keyword was noticeably absent. Upon consulting our computer guru, I learned that the keyword search was performed not on the document image, but rather on the document image's corresponding text file that is not readily accessible within the computer program.

Once I located this corresponding text file, I found my missing keyword in the space where a redaction box appeared on the document's image. Indeed, this phenomenon was consistent throughout the production -- every piece of text redacted from the document's image appeared unredacted in the corresponding text file. We ceased examining the files and informed opposing counsel that it appeared they produced their client's privileged information.

In the two years since this incident, I would have expected those in the EDD industry to correct this glaring mistake -- after all, it is not good litigation strategy to produce your client's privileged information. But law firms and EDD vendors frequently continue to make this mistake. One vendor acknowledged the issue, but required an extra hourly fee to take the appropriate step of deleting redacted text from the accompanying text files, saying that was not part of their standard practice.

To avoid this mistake, here is what you need to know. Under the Federal Rules of Civil Procedure, parties must produce e-documents in a format that preserves the same functionality as the original, native e-document. Although parties can choose to produce their documents in native format, few parties actually do because native e-documents:

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Source: law.com
By: Kenton Hutcherson