During a lawsuit, there are times when a document may need to be redacted to remove sensitive information before the document is given to opposing counsel or filed with the court.
Failing to properly do so can impact whether the once protected information stays that way.
During the court of a lawsuit, various information and documents need to be exchanged between the parties. Some documents also may get filed with the court, as part of a motion. While most information is “discoverable” and must be given to opposing counsel, some information (such as privileged communications with your attorney) are not. When providing a document that has a mix of discoverable and non-discoverable information, it is important to redact (or black-out / remove) the protected portions. A failure to properly do so could waive whatever protection those portions of the document may have once possessed.
There are many ways which may appear to redact information from a document. But, not all of them are effective. The two main methods are what I like to call: (1) the computer-assisted method and (2) the print-and-scan method.
(1) Computer Assisted:
Each software program (such as Adobe) has its own method for redacting a document, and each version may have different steps to accomplish it. As an attorney, we have an ethical obligation to be familiar with the technology that we use. It is important to do some research and make sure you understand the proper way to do it in your software.
One important part to remember is that it is not typically sufficient to simply insert a black box over the top of the redacted text. This is the issue that Paul Manafort’s attorney ran into in January 2019.[1] If you simply add a black box over the top of the text, it is possible that the recipient may be able to still copy the text beneath that box.
Another important consideration is the “hidden” data in your document. Good redaction software will also allow you to remove metadata or hidden text and data in your document. But, you need to know how to use your software.
(2) Print-and-Scan Method:
One method which is perhaps the most sure way to do it, and also the most low-tech, is what I call the “print-and-scan” method. This method is essentially just what it sounds like: you print out the document(s), redact them by hand (by physically cutting out the redacted parts or blacking them out entirely), and then scan the document back in. By doing so, you can be sure there is no meta data, since that does not print. Also, you can be sure that your redacted data is not still hiding behind a black box (what you see is literally what you get). The main downside to this method is that it uses a lot of paper (you have to print every document), and it can be labor intensive. However, if you do not have the skills or confidence to use software to securely redact, then this may be the best method for you.
No matter what method you use, it is important that you do it competently, to adequately protect sensitive information which is otherwise shielded from discovery. A failure to do so could potentially waive privilege for your client, or allow a court filing in the public record to make its way into the press with your client’s sensitive information still showing.
If you are involved in litigation, contact the experienced trial attorneys at Goosmann Law Firm, PLC, in our Omaha, Sioux City, or Sioux Falls offices.
[1] See https://www.motherjones.com/politics/2019/01/paul-manafort-failed-redaction/
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