Redactions are a common tool used in litigation to conceal materials from party adversaries, judges and/or the public. The most common types of redactions shield content protected by the attorney-client or work product privileges. Other types of redactions protect personally identifiable information (PII), business sensitive information and, in some cases, depending on the jurisdiction or negotiated production terms, non-responsive content. Historically, redactions were applied to hard copy records with black tape before turning over the documents to the court or the opposing party. Since the advent of modern personal computers and the proliferation of electronic discovery, redactions are typically and most effectively applied with an eDiscovery tool during the review and production process. Redactions only work, however, if they are properly applied before the producing party discloses the records in litigation.

In a recent lawsuit brought by 14 State Attorneys General against social media company TikTok, the Kentucky Attorney General’s office filed documents to the public docket that contained blackout redactions over sensitive, internal TikTok communications and business records. Kentucky Public Radio discovered they were able to copy and paste the redacted material into a new document and expose the redacted content in full. The radio station then published a summary of the redacted content in their reporting on the lawsuits before the presiding judge granted a motion to seal the court records “to ensure that any settlement documents and related information, confidential commercial and trade secret information, and other protected information was not improperly disseminated.”

At times redaction failures do not only impact litigation strategy and public perception but can also implicate national security issues. In 2014, the New York Times newspaper published information provided by former NSA employee Edward Snowden and failed to properly redact information about a sensitive CIA operation and the name of an NSA agent involved. Readers of the article were able to copy and paste the “redacted” content and review in full. Similarly, in 2019, Paul Manafort, in a filing in response to Special Counsel Robert Mueller’s report, applied redactions in Microsoft Word or Adobe Acrobat and did not merge (or burn) the redactions into the original document before producing. Like the TikTok documents, Guardian reporter Jonathan Swain was able to copy and paste the redacted content and uncover the underlying content. In both of these instances, the redacted content contained sensitive national security information, highlighting the importance of knowledgeable and competent technologists and counsel with experience in eDiscovery.

It is paramount when applying redactions to ensure that the redactions are burned into the production image (or appropriately applied in the native record) before producing to avoid inadvertent disclosure. Review and production platforms used by eDiscovery vendors (such as Relativity, Everlaw, Disco, etc.) provide tools for simple and effective redaction application. In some cases, the technology allows for auto-redactions for certain topics (such as social security numbers, protected as PII) or redaction propagation on duplicate records. Practitioners should also be mindful of the content in a document’s metadata that may require redactions, as well as embedded images that are extracted during processing and may require additional redactions on child family members. Working with a sophisticated and experienced eDiscovery vendor, such as CODISCOVR, will ensure that your productions are professionally executed and your sensitive or privileged materials are protected from disclosure.