In a recent contract dispute, the court held that relevancy redactions were allowable even though a protective order was in place – provided that the redactions left sufficient information for the opposing party to understand the nature of the redactions. The court noted that one reason that relevancy redactions are generally disfavored is they lead to motion practice, but that this can be avoided if a producing party discusses its wish to make redactions with the court and the opposing party in advance.

We help clients ensure that all redactions are appropriate and defensible, to avoid the kind of dispute the parties found themselves in here.

In Kaiser Aluminum Warrick, LLC v. US Magnesium LLC, No. 22-CV-3105, 2023 WL 2482933 (S.D.N.Y. Feb. 27, 2023), the defendant included relevancy redactions in a production of documents to the plaintiff. Kaiser Aluminum objected, arguing that redactions for relevance are disfavored when there is a protective order in place, as there was in the case. US Magnesium countered that the information redacted was irrelevant and competitively sensitive, and that redaction was appropriate.

After conducting an in camera review, the court found that US Magnesium was entitled to redact irrelevant information, reasoning:

• Rule 26(g) requires attorneys to certify that they have fulfilled their production obligations, and there is no reason to think that a party is less able to make good faith relevancy determinations as to portions of documents than as to whole documents.
• One frequent objection to relevancy redactions is they are time-consuming and expensive, but if a party wishes to undertake the expense and can do so in a timely manner, then redactions are consistent with discovery obligations.
• Protective orders can prevent confidential information from being shared outside of a litigation, but their existence does not necessarily mean a party needs to produce irrelevant and confidential information if it does not want to.

Although the court upheld US Magnesium’s relevancy redactions for the most part, it did order US Magnesium to unredact certain relevant information that was found during the in camera review. The court also ordered US Magnesium to unredact column and row headers as well as chart titles for redacted charts of financial information, in order to allow the plaintiff to understand the nature of the information that was redacted and that it was not relevant to the case. And the court reminded the parties that they should discuss their wishes to make redactions with the court and the opposing party in advance – which US Magnesium did not do – in order to cut down on motion practice.

Joe A. Tate, Jr., Member and Managing Director of CODISCOVR, focuses his practice on eDiscovery, information governance, and data management issues in the context of litigation and investigations. In his role, Joe is responsible for the day-to-day management of a team of attorneys and technologists that handle all phases of the eDiscovery lifecycle. Connect with Joe →

Nicole Gill, Counsel at CODISCOVR, concentrates her practice on electronic discovery in a variety of contexts, manages complex document review workflows, and routinely navigates data and privacy protection laws across many jurisdictions, both domestic and foreign. Nicole also implements quality control procedures to mitigate risk and counsels both clients and colleagues on issues related to eDiscovery, information governance and data management. Connect with Nicole →