April 19, 2018

Court Compels Redacted Information as Non-Responsive

<a href="https://www.linkedin.com/in/cathie-mcleod-chiccine-26944925/" target="_blank">Catherine M. Chiccine</a> – April 20, 2018

Citing the potential for abuse, a court ordered a defendant to produce 600 pages of documents it had redacted as non-responsive. According to the U.S. District Court for the Eastern District of Wisconsin, the Federal Rules of Civil Procedure do not allow wholesale redaction based on non-responsiveness. The holding signals a need to act selectively and transparently when redacting documents for production, say leaders in the ABA Section of Litigation.

Blanket Redactions for Irrelevance Improper
In IDC Financial Publishing, Inc. v Bondesk Group, LLC, a case involving copyright infringement claims, the plaintiff publisher sought to compel production of un-redacted documents from the defendant financial services company. While the defendant had produced over 6,000 documents in discovery, it had unilaterally redacted over 600 of them, including nearly all the text in dozens of emails, contracts, and spreadsheets. The court found the defendant's blanket redaction to be far beyond the "line-item" redactions sanctioned by the rules, and the defendant had not provided a compelling reason for such extensive redactions. Accordingly, the court did not see a reason to alter the "traditionally broad" discovery rules to let the defendant unilaterally redact large swaths of information in otherwise responsive documents.

The court rejected the defendant's argument that the information redacted was irrelevant, reasoning that "redacting for non-responsiveness or irrelevance finds no explicit support in the Federal Rules of Civil Procedure," which only allow non-production based on privilege. The court also noted the potential for abuse because a party making unilateral redactions deprives its opponent the opportunity to see information in context. Allowing such a practice "would improperly incentivize parties to hide as much as they dare," the court noted.

The court also rejected the defendant's argument that the redactions were necessary to protect business information unrelated to the publisher's claims, noting that the defendant did not explain how the protective order entered in the case would fail to protect it. This distinguished the decision in In re Takata Airbag Products Liabilities Litigation, where the court allowed the defendant to redact documents as nonresponsive, despite protective orders, because they contained sensitive business information that could have been exposed to the public.

Redact Selectively and Consider the Rules
Section leaders advise lawyers to redact judiciously, taking into consideration the discovery rules. "If you think a document contains irrelevant information, be selective in what you redact, so you don't raise the concern that you are trying to hide relevant information," says Kenneth M. Klemm, New Orleans, LA, cochair of the Section of Litigation's Pretrial Practice & Discovery Committee. "Federal Rule of Civil Procedure 26 doesn't explicitly provide a mechanism to redact irrelevant information unless it falls into the category of privileged information or work-product," explains Klemm. "To the extent you can bring the information within the scope of those categories, you stand a better chance of having the court uphold the redactions," he concludes.

Even if the information is not privileged, "if you can connect the redaction to confidential information, it makes the court a little more cautious in requiring the disclosure of the information," says Tracy A. DiFillippo, Las Vegas, NV, cochair of the Section's Pretrial Practice & Discovery Committee. "Simply redacting for non-responsiveness raises a red flag to the court," she warns.

Practitioners should also consider the proportionality language of Rule 26. "The federal rules do not support blanket redactions for non-responsiveness. But under Rule 26, the court can limit discovery if the burden of production outweighs the benefit," says DiFillippo. "If you have redacted a limited number of documents, you have a better argument that the redacted information is proprietary and the burden of producing that amount of information outweighs the benefit, rather than with redacting 600 documents, where the court looks to the potential for abuse," she explains.

Transparent Redaction Process Key
If a lawyer truly believes documents must be redacted based on relevancy, involving the other party and the court can go a long way toward a positive outcome. "Though there is room for redactions based on relevancy as suggested by the Takata case, it needs to be a transparent process," states Robert J. Will, St. Louis, MO, cochair of the Section's Pretrial Practice & Discovery Committee. "You need to have someone independent review the documents, and the other party needs the opportunity to see the redacted information if it is not privileged, so that it has an opportunity to say whether the documents are relevant and non-confidential," he explains.

"In the Takata case, there was a special master appointed, and there was a fairly significant process in which tens of thousands of documents were reviewed, and the special master determined whether to produce them," notes Will. "In IDC Financial Publishing, however, the producing party unilaterally chose to make the redactions, and the rationale put forth was weak or nonexistent, other than that it was irrelevant," he adds. "The judge stated that a party does not get to decide relevancy by itself, which distinguished this case from Takata," he concludes.

 

Catherine M. Chiccine is an associate editor for Litigation News.


Hashtags: #rule26, #redaction, #discovery, #nonresponsive

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<a href="https://www.linkedin.com/in/cathie-mcleod-chiccine-26944925/" target="_blank">Catherine M. Chiccine</a> – April 20, 2018