Redaction: Does Your Procedure REALLY Protect Confidential/Privileged Information?

RedactedRedaction is the removal confidential information from documents before final publication. If not done properly, the information can later be mined from the document.

American Bar Association (ABA) Rules applicable to redaction:

1.1-1.3: A lawyer must provide competent representation and MUST use methods and procedures meeting standards of competent practitioners.

1.6 (a) A lawyer shall not reveal information relating to the representation of a client

The process of redacting is often considered a simple administrative function. However, when done wrong, there can be major problems.

You may remember the “old days” when law firms redacted documents manually. This method required making duplicate work copies and then choosing a weapon of choice: a Sharpie, Paper Mate Liquid Paper Dryline and/or Post-It Cover Up Tape.

When a case involved complex injuries, extensive medical treatment and hundreds of pages of records, this meticulous (and tedious) process could take hours and leave the firm open to malpractice claims in the event of human error.

Forward to this age of technology. Documents are usually prepared in MS Word, and converted to Portable Document Format (PDF) for distribution.  Unfortunately, merely converting a MS Word document to PDF does not automatically remove all metadata. This is especially true if the user is implementing older versions of Adobe Acrobat (anything prior to version 8). True redaction may not be happening. In the digital world, special software and know-how are required to delete the words behind the black bars.

The redaction of documents and records is often an essential part of a paralegal’s job. It has become an increasingly high-profile component of information protection and exposure. Botched redactions have caused major issues for major entities such as Facebook, General Electric and the Transportation Security Administration.

A case I often refer to in my Ethics & Technology courses is Lorene Schaefer v General Electric et al (U.S. District Court for the District of Connecticut Case 3:07-CV-00858 (PCD). This case demonstrates how easily electronic redaction can be uncovered.

Lorene Schaefer, former general counsel of GE Transportation, filed a sex discrimination suit against General Electric.

The firm representing her took the time and effort to use the borders and shading tool in MS Word to redact reams of pages in numerous briefs to make them inaccessible to the public – or so they thought.  The documents were then converted to .pdf and filed electronically with PACER (Public Access to Court Electronic Records).

As it turned out, the documents could be downloaded through PACER’s federal court filing system.  Then the black bars that covered the text on the screen could be cut and pasted into a Word document and deciphered as easily as copying and pasting the text by removing the highlighting that covered the text.

Information that was supposed to be sealed by court order could be accessed with little technical savvy.

Unfortunately paralegals were responsible for redacting the documents before filing the briefs electronically.  The mistake was innocent and very basic.  In preparing its brief for filing, the paralegals incorrectly assumed that using Microsoft’s ‘Highlight” (or “Borders and Shading”) tool to redact text actually removed the text from the file’s contents.

It does not.  It “covers up” the text, but the text itself remains in the document beneath the black bars, fully searchable and available for copying. In this case, the problem was solved by printing from PACER, complete with the black bars covering the text, and then re-scanning the documents into the federal filing system. While this is an easy fix, the damage had been done.

My suggestion to you would be to either use newer versions of Adobe software that will properly redact the document or print the documents with the redaction in place, then scan them into your system for filing or for sending to opposing counsel. OR explore redaction software resources. One I recommend is Redact-It available at