When does a party to a suit go too far in redacting information?

How Much Redaction is Too Much Redaction? Blanket Redactions Without Legitimate Justification.

Author: Maria A. Grajales
Case Citation: IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)
Employee/Personnel/Employer Implicated: Counsel (unclear as to whether it is In-House Counsel and/or Outside Counsel)

eLesson Learned: When a party seeks to redact portions of discoverable documents, he or she must demonstrate that the subject
documents are privileged and or that these documents are protected by the work-product doctrine.
Tweet This: No, no, says the court to bogus practice of redactions.

A tool once meant to protect the privacy and sensitive information of parties has now been abused to impede the disclosure of discoverable information. The practice of redacting serves a critical role in the discovery stage of litigation, but its potential for abuse is one we cannot lose sight of. Attorneys must be careful to redact only information that is privileged or subject to work-product protections.

In IDC Fin. Pub., Inc. v. Bonddesk Grp., plaintiffs brought a motion to compel against defendants after defendants redacted 600 of over 6,000 documents produced in discovery. Plaintiffs sought production of the unredacted version of these documents. Defendants argued that the information redacted is not relevant and was therefore permissibly redacted. Defendant further claimed that plaintiff is not entitled to peruse through any and all documents dealing with the contract at issue.

While it is certainly true that parties to a litigation do not have free reign to obtain and review any and all documents, the Federal Rules of Civil Procedure make clear that parties may obtain documents that are both nonprivileged and relevant to a party’s claim. This means that even information that is not admissible as evidence in court falls within the scope of discovery. However, this does not mean that a party cannot object to a document request or that a party is suddenly barred from redacting pertinent information. A party seeking to redact certain information simply needs to assert that the information redacted is privileged or is protected by the work-product doctrine.

The issue in IDC Fin. Pub., Inc. v. Bonddesk Grp. is that defendants went “beyond the sort-of ‘line item’ redactions of personal information or account numbers sanctioned by [the federal rules]. Instead, they have blocked out large chunks of information on documents . . . they admit are discoverable.” In support of these blanket redactions, defendants merely asserted that the information redacted was not relevant. This unsupported assertion provides courts with little to judge. By virtue of these redactions and lackluster explanations, judges are themselves incapable of determining whether the information has been properly redacted.

In fact, redactions based on irrelevance is not supported by the federal rules of evidence. These broad blanket redactions permit parties to unilaterally determine what is discoverable and what is not, with little to no oversight from the courts or any other party. This essentially deprives a party’s adversary from the opportunity to review discoverable information. Allowing unfettered redactions would threaten the legitimacy of our justice system by incentivizing parties to redact as much as they can and hide the truth.

Going forward attorneys should be cautious in what they redact. Attorneys should be careful to comply with the Federal Rules of Civil Procedure and only redact information that is either privileged or subject to the work-product doctrine. Alternatively, the party seeking to redact an extensive portion of discoverable information must show other compelling reasons for doing so. Adopting such a practice will ensure a more efficient and productive resolution of the case at stake.

Maria is a third-year law student at Seton Hall University School of Law and is expected to graduate in January 2020. She earned a B.A. in Political Science from Montclair State University in 2015. Maria is interested in the area of complex litigation.

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