January 31, 2017 Practice Points

Unilateral Redactions of Responsive Documents on Relevance Grounds Not Supported by Federal Rules of Civil Procedure

Parties would be "improperly incentivized to hide as much as they dare."

By Mollie Beth Wallace

To justify unilateral redactions of discoverable documents, a responding party should demonstrate not only that such redactions are necessary to protect business information but also that a protective order explicitly providing for the protection of confidential information is inadequate. ICD Fin. Pub., Inc. v. Bonddesk Grp., LLC, No. 15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017).

Referencing the 2015 amendments to the Federal Rules of Civil Procedures that emphasized proportionality, the court in this action clarified that these amendments did not alter the fact that information does not have to be admissible evidence to be discoverable. In its motion to compel, the plaintiff produced evidence of “unilaterally redacted” documents that the defendant designated “irrelevant.” In one 37-page document, for example, the defendant redacted more than 30 pages that it labeled “nonresponsive.” The court noted that instead of employing “line-item” redactions based on personal information or account numbers sanctioned by Fed. R. Civ. Pro. 5.2, the defendant “blocked out large chunks of information on documents that, by virtue of producing them, [the defendant] admit[ted] are discoverable.”

The court underlined the negative incentives that affirming such redactions would create: Parties would be “improperly incentivized to hide as much as they dare.” Without sufficient justification, which the defendant did not provide, the court declined to permit such restrictive redactions that conflict with the liberal policies of discovery. The information in the defendant’s documents was safeguarded by an order explicitly providing for the protection of information marked “confidential.” Absent any evidence demonstrating that this order is inadequate to protect the defendant, the court declined to alter traditionally broad discovery rules by allowing unilateral redaction of responsive documents based on relevance grounds.

 

Mollie Beth Wallace is a 1L at Cumberland School of Law, Samford University in Birmingham, Alabama.


Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).