May 06, 2020 Feature

The Consequences of Documents That Are Incorrectly [Redacted]

Mistakes can lead to potentially significant consequences for both lawyers and their clients.

Andrea L. D’Ambra and Susana Medeiros

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Last year, lawyers for former Trump advisor Paul Manafort inadvertently published information about their client’s meetings with Konstantin Kilimnik, a Ukrainian man the Federal Bureau of Investigation believes may be a member of a Russian intelligence agency unit connected with the hacking of the Democratic National Committee’s email server. They meant to redact these passages, but they didn’t do so properly before filing. A tech-savvy reporter from the Guardian caught the error, and the lawyers and their client made the news. In another case, this one between Facebook and a bikini-photo app called Six4Three, the Wall Street Journal caught defective redactions that revealed that Facebook had at one time considered selling access to users’ data for as much as $250,000 per company.

Illustration by Dave Klug

Illustration by Dave Klug

And even more recently, a law firm inadvertently failed to redact testimony protected by grand jury secrecy rules. In United States v. Indivior Inc., No. 1:19-cr-00016 (W.D. Va. 2019), the government charged Indivior with engaging in an illicit nationwide scheme to increase prescriptions of Suboxone Film, a drug used in the treatment of opioid addiction. The law firm representing Indivior prepared a filing alleging misconduct during grand jury proceedings. The publicly filed version of the brief even said it was “redacted in order to protect certain grand jury material.” And although the memorandum appeared to redact the grand jury material, it didn’t actually do so, which allowed a reporter to write an (unflattering) story about the whole affair.

Magistrate Judge Pamela Meade Sargent ordered Indivior’s attorneys to explain “why counsel should not be sanctioned for this error and explain[] what steps counsel have taken to ensure this error will not be repeated.” The lawyers took full responsibility for the improperly applied redactions, explaining that although black-box redactions appeared over certain text in the brief (making it impossible to see the text), a reporter was able to copy and paste the hidden text underlying the redactions due to a “technical weakness . . . caused by the method of redaction.” Specifically, the error was the result of applying the redactions in Microsoft Word and printing to Adobe Acrobat, “rather than [using] redaction software our law firm has in place that is specifically designed to avoid such issues.” Id.

Redaction Rules of Civil Procedure

Proper application of redactions in public filings may be essential to protect confidential or sensitive client information. But in many other circumstances, counsel are also required to redact personally identifiable information in court filings to comply with federal and state redaction rules governing individual privacy. Federal Rule of Civil Procedure 5.2 and Federal Rule of Criminal Procedure 49.1 require that much personal information—including Social Security numbers, taxpayer identification numbers, financial account numbers, and home addresses—be redacted in full or in part before filing. Similarly, many state courts have analogous redaction rules that also protect the filing of certain categories of individual information on the public docket.

And when attorneys violate these redaction requirements, courts have imposed sanctions. See, e.g., Reed v. AMCO Ins. Co., 2012 U.S. Dist. LEXIS 32446 (D. Nev. 2012) (imposing sanctions of reasonable attorney fees for failure to redact privileged information filed on the Electronic Case Files system); Weakley v. Redline Recovery Servs., LLC, 2011 U.S. Dist. LEXIS 42750 (S.D. Cal. 2011) (imposing a sanction of $900 to pay for five years of credit monitoring, where the defendant’s counsel filed the plaintiff’s Social Security number in violation of Federal Rule of Civil Procedure 5.2).

In a more recent case, a property lien holder improperly filed a debtor’s financial statement, which contained the debtor’s full Social Security number, home telephone number, address, and date of birth, on the public docket without redaction, violating Federal Rule of Bankruptcy Procedure 9037. In re Lunden, 524 B.R. 410, 414 (Bankr. D. Mass. 2015). Judge Henry J. Boroff found that sanctions against counsel for the lien holder were warranted due to the clear language of Rule 9037, the emphasis of this requirement during the electronic filing process, and counsel’s “refus[al] to take any corrective action” after filing. Id. at 418. The debtor’s counsel was also awarded attorney fees and costs associated with the dispute and reimbursement of the costs of credit monitoring for one year for the debtor. Judge Boroff opined that further sanctions might be warranted if the debtor could show that she suffered any damages as a result of the filing. Although the Lunden opinion concerns the failure to redact protected information in a public filing, and not the technical failure to properly execute such redactions, it demonstrates that neglecting to observe redaction requirements or take corrective measures can have serious consequences.

How to Redact

So how do you keep your client’s information (or your adversary’s) out of the news? You don’t need special redaction software—in fact, court filings may be effectively redacted in Adobe Acrobat so long as the correct steps are followed. The instructions below apply to Adobe Acrobat XI but should also apply to most versions of Adobe Acrobat Pro:

  1. Open the document you wish to redact, go to the Tools menu, and select Redact. Doing so will bring up the redaction tools ribbon in the main document view.
  2. To proceed with marking the items you wish to redact, select Mark for Redaction.
  3. Highlight the text you wish to redact. Text marked for redaction will be outlined in red.
  4. To execute the redaction, click Apply in the redaction tools ribbon, and press OK. At this point, the text in the document itself will have been permanently redacted, but the redaction process is not yet finalized.
  5. Finalize your redaction by finding and removing hidden information in the document and its metadata. After you apply your redaction, Adobe Acrobat will automatically prompt you to remove hidden information in your document. You should always select Yes in response to this prompt.

Adobe Acrobat allows you to change the color of the redaction (e.g. black box, white box) and to include text within the redaction (e.g., “Attorney-Client Privileged” or “Confidential”).

Whether filing redacted documents on public court dockets or exchanging them with other parties in transactional matters, it is important to ensure that redacted confidential information is, in fact, marked out and unrecoverable. Following these steps will result in redactions that hide the protected language on the face of the document and scrub the hidden text underlying the redaction, helping lawyers avoid potentially significant consequences both for themselves and their clients.

Andrea L. D’Ambra and Susana Medeiros

The authors are with Norton Rose Fulbright US LLP.