This article originally appeared in Law Technology Today published by the ABA on Nov. 13, 2015. I co-authored this piece with Joel Henry, PhD, JD.
No matter your choice of discovery tools, one thing remains the same: redaction. Redaction removes privileged or protected information prior to production to opposing counsel. Redaction can be one of the most important—and sometimes the most costly—part of document review. Unfortunately, as the volume of data continues to rise, so will the cost to redact.
While this may seem like a trivial subject, the problems with redacting electronic documents have made big news. Take, for example, the study by Timothy Lee of the federal judiciary’s PACER system. Instead of focusing on documents that should have been redacted, he focused on documents that had been redacted where the actual redaction itself was unsuccessful, meaning the redacted data still existed in the document and could be retrieved. Out of the 1.8 million documents analyzed, 194 had failed redactions. This study does not even count those documents where information had failed to be identified as requiring redaction altogether (a study by Carl Malamud found 1,600 out of 2.7 million cases in the PACER system that contained information like Social Security numbers, with no attempt whatsoever to redact them).
Don’t Waste Time, Redact Electronically
No half-decent lawyer needs to be reminded that responsive documents (i.e. relevant and discoverable) can contain privileged, confidential, or private information that should be redacted. This process of redacting in the paper world involves teams of lawyers, with black markers in hand, who spend countless hours scouring documents for information to redact. While this process should change in the e-discovery world where technology assists legal teams every step of the way, often responsive documents are printed, redacted, and then scanned back into TIFF or PDF format for production instead. If you don’t redact electronically stored information (“ESI”) in its electronic form, you consume large amounts of time, as well as clients’ money.
At the very core of the issue, redacting ESI manually on paper defeats the entire purpose of e-discovery. Being able to filter, search, review, and produce information with the aid of technology allows the e-discovery process to move efficiently while still protecting your clients’ rights and your obligations as a lawyer. Electronic redaction allows you to produce documents to opposing counsel in whatever form agreed upon in the meet and confer discovery conference (often native or near-native form) along with all metadata if necessary. The most successful e-discovery software vendors recognize this and offer redaction as part of their software solutions. These solutions allow redacting the native file while keeping the original file protected in order to review and defend redactions. Why is this important? If you simply take the Word file that is responsive, and replace the Social Security number with “XXX-XX-XXX,” save the redacted file over the original, you will destroy the original file. This can result in spoliation issues, which come with stiff consequences such as adverse inference instructions, as well as making it impossible to defend the redactions as legally sound.
Redacting information without a privilege log to describe why you redacted the information within your ESI puts your entire production at risk. Remember that the Federal Rules of Civil Procedure impose a requirement—Fed. R. Civ. P. 26(b)(5)(A)—that any withheld information be described, “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” While this language is not specific, it doesn’t mean that you can redact your ESI and refuse to explain why you did so. Almost all e-discovery solutions will offer a privilege log with its redaction functionality, however, if it does not, or if you are redacting with a program like Adobe Acrobat, it is important to remember that you need to log what was redacted.
Images within a document require human review or the use of special software that can recognize characters within images—optical character recognition (“OCR”). Your search for information within OCR’ed documents (image documents converted to documents containing the text within images) depends heavily on the quality of the OCR platform itself. Even the best OCR engine can misinterpret words, leading to failed searches for privileged or confidential information. This becomes especially important when using an automated redaction feature, as is common in the leading e-discovery platforms, which search for specific words or phrases. The safest approach to ESI that has been OCR’ed is to flag each document that requires redaction. This will allow you to ensure you manually oversee all redaction on these documents, reducing the chance of a missed redaction due to poor OCR. Requiring more eyes-on time for these documents may just save you that sanction, malpractice claim, or adverse inference in the future.
Electronic information continues to grow at an explosive rate, but that doesn’t mean you have to invest more time and money in the discovery process. Completing the e-discovery process with electronic redacting is a relatively easy process once you understand how to do it. Utilize all this great technology to your advantage. Not only will it save your firm time and money, it will save your client the same as well.