Relevance Redactions Rejected – Rule 26(f) Resolution

Information Governance – Mis(?)-Labeling Documents as Privileged
March 23, 2022
Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones
March 24, 2022

This blog focuses on: authorities denying permission to redact irrelevant information from discoverable documents; a minority view to the contrary; and, a proposed solution using a Fed.R.Civ.P. 26(f) conference of the parties where appropriate.  If a party foresees the need to redact irrelevant or confidential information from an otherwise discoverable document, the best practice would be to negotiate a stipulated agreement permitting such redaction. The next best practice would be to file for a protective order permitting such redactions.

Redaction is the process of removing text from a discoverable document prior to its disclosure. See Redacting Definition & Meaning – Merriam-Webster.  Much has been written about “Embarrassing Redaction Failures” and the technological aspects of that process.

However, there are also substantive legal principles that govern – – and limit – – redaction. It is well-established that redaction of privileged information is permissible,[1] with a requirement that the redaction be visually obvious and often disclosed in a redaction or privilege log.[2]  The situation with redaction of other information from discoverable documents may be a bit less clear.

MOST COURTS REJECT RELEVANCE & CONFIDENTIALITY REDACTIONS

A body of case law limits the right to redact for reasons other than privilege or work product.   “It is a rare document that contains only relevant information.” Bartholomew v. Avalon Capital Group, Inc., 278 F.R.D. 441, 451–52 (D. Minn. 2011). Redaction of information from a discoverable document – – simply because a portion is irrelevant or non-responsive – – is generally not permitted.  Id.  To the same effect, if a confidentiality order has been entered, redaction for confidentiality is generally prohibited.  Id. at 452.

A report and recommendation of a Special Master in the District of Maryland recently followed this principle: “The federal courts have concluded that the Federal Rules of Civil Procedure do not permit a party to redact information, claimed to be irrelevant, from the documents it produces.”  In re Marriott Int’l Customer Data Sec. Breach Litig., 2020 WL 5525043, at *1 (D. Md. Sept. 14, 2020) (Facciola, J. (ret.)).  The rationale is clear:

That redactions based on relevancy are impermissible makes sense. First, there is no Federal Rule of Civil Procedure that permits it. Second, documents do not exist in a perfect world of relevance and irrelevance. The same document can contain relevant and irrelevant information. The redaction of the “irrelevant” information creates a perfect black box. No one knows what’s in it. That would then require the parties and the courts to review every document from which a redaction has been made. But, the wors[t] that can happen, if there is no redaction, is that the opposing party and counsel will see irrelevant information. There is a significant disproportion between the nature of that harm (if there is any) prevented by the redaction and the effort then demanded of all counsel and the court to determine the redaction’s legitimacy. See In re: Medeva Sec. Litig., No. 93-4376 KN, 1995 WL 943468, 1995 U.S. Dist. Lexis 2895 (C.D. Calif. 1995) (problems created by redaction outweigh “minimal” harm done by disclosure of some irrelevant material).

Furthermore, the document’s production does not prevent the producing party from seeking a redaction at trial to prevent the finder of fact from seeing the irrelevant information, if an instruction to the finder to disregard it is insufficient.

Finally, a party is always free to seek a protective order under Fed. R. Civ. P 26(C)(1) against the production of information that it wishes to redact. That Rule permits the court to prevent any disclosure if a party meets the Rule’s requirements. Channeling a dispute over whether information should be redacted into a motion practice where both parties can be heard before the redaction is made is preferable to a party resorting to self-help and redacting whatever it pleases. [emphasis added].

In Marriott Int’l, Judge Facciola (ret.) cited Bartholomew, 278 F.R.D. at 451–52 (emphasis added).  The Bartholomew court wrote:

Redaction is an inappropriate tool for excluding alleged irrelevant information from documents that are otherwise responsive to a discovery request. It is a rare document that contains only relevant information. And irrelevant information within a document that contains relevant information may be highly useful to providing context for the relevant information. Fed.R.Civ.P. 34 concerns the discovery of “documents”; it does not concern the discovery of individual pictures, graphics, paragraphs, sentences, or words within those documents. Thus, courts view “documents” as relevant or irrelevant; courts do not, as a matter of practice, weigh the relevance of particular pictures, graphics, paragraphs, sentences, or words, except to the extent that if one part of a document is relevant then the entire document is relevant for the purposes of Fed.R.Civ.P. 34. This is the only interpretation of Fed.R.Civ.P. 34 that yields “just, speedy, and inexpensive determination[s] of every action and proceeding.” Fed.R.Civ.P. 1.

This interpretation is buttressed by the fact that the Federal Rules of Civil Procedure do not grant parties the power to unilaterally redact information on the basis of relevance. The Federal Rules of Civil Procedure explicitly provide when redaction may be used. See Fed.R.Civ.P. 5.2 (discussing redaction within the context of filings with the Court); see also D. Minn. LR 5.5 (discussing redaction of transcripts). The Federal Rules of Civil Procedure also explicitly provide a method for a party to object to a request for production of documents. See Fed.R.Civ.P. 34(b)(2). Rule 34(b)(2)(B)–(C) states: “For each item or category, the response must … state an objection to the request, including the reasons” and “[a]n objection to part of a request must specify the part and permit inspection of the rest.” This method for objection does not explicitly include the option of producing redacted documents. In addition, the Federal Rules of Civil Procedure provide parties with the option to bring a motion for a protective order. Fed.R.Civ.P. 26(c). Thus, a party seeking the power to unilaterally redact documents for relevance should request leave to redact those portions that the party contends are irrelevant. Furthermore, there is a Protective Order… in the present case, which could be utilized to limit the dissemination of any confidential information.

Id. at 451–52 (emphasis added).  Under this analysis, a producing party cannot unilaterally redact some portions of discoverable documents based on relevancy grounds.

This principle seems well established.  For example, where a non-party redacted relevant, confidential financial information:  “The Court orders Valve to remove the redactions from volume 5 of its document production, except for any redactions of attorney-client privileged or attorney work product information, if there are any.”  In re Apple iPhone Antitrust Litig., 2021 WL 718650, at *3 (N.D. Cal. Feb. 24, 2021). It reasoned that a protective order provided sufficient protection.

Burris v. Versa Prod., Inc., 2013 WL 608742, at *1 (D. Minn. Feb. 19, 2013), is another leading decision.  There, plaintiff brought suit for personal injuries against the manufacturer and seller of a product. There was a related insurance coverage action.  The insurer redacted 51 pages of documents that contained insurance pricing that it considered to be a trade secret.  It also asserted that the information was not relevant to the coverage issues. Id. at *2. After in camera review, removal of most of the redactions was ordered.  The court noted that, when the parties submitted a stipulated protective order: “No party indicated that its interests required the right to redact proprietary information from the materials it would produce during discovery.”  It then addressed the issue of relevance:

Gulf next argues that it properly redacted the information because the undisclosed information is not relevant. However, Gulf offers no support for the proposition that a party may properly redact portions of a document on grounds that some, but not all, of the document is relevant or responsive. … The practice of redacting for nonresponsiveness or irrelevance finds no explicit support in the Federal Rules of Civil Procedure, and the only bases for prohibiting a party from seeing a portion of a document in the Rules are claims of privilege or work-product protection…. Parties making such redactions unilaterally decide that information within a discoverable document need not be disclosed to their opponents, thereby depriving their opponents of the opportunity to see information in its full context and fueling mistrust about the redactions’ propriety. And if the Court were to allow such a practice it would improperly incentivize parties to hide as much as they dare. That is a result at odds with the liberal discovery policies, the adversary process, and the Court’s obligation to read the Rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1. None of this is intended to imply that Gulf or its counsel attempted to hide the ball here. But because these types of redactions find no support in the Rules and are fraught with the potential for abuse, the Court will not permit them unless the circumstances provide an exceedingly persuasive justification to do so…. Gulf must remove these redactions …. [emphasis added].

Burris was followed in IDC Fin. Publ’g, Inc. v. Bonddesk Grp., LLC, 2017 WL 4863202, at *2 (E.D. Wis. Oct. 26, 2017).  There, “large swaths” of 600 out of 6,000 documents were unilaterally redacted.  Some of the redactions were based on non-responsiveness and others on assertion of trade secrets.  The court wrote that: “The defendants do not assert any privilege protecting the information they redacted, and object to disclosing the information on a blanket assertion that the redacted information does not apply to the plaintiff. The plaintiffs may disagree with the defendants’ relevance determination.”  It noted that “even irrelevant information within a document that contains relevant information may be highly useful to providing context for the relevant information.” And it did “not agree that the plaintiff must ‘take the defendants’ word for it. that the redacted portions of the documents are not relevant to the plaintiff’s claim.” After reiterating that a protective order had been entered, it wrote:

The court does not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds.

Burris was also followed by Target Corp. v. ACE Am. Ins. Co., 2021 WL 6062553, at *8 (D. Minn. Dec. 22, 2021).

ACE described the redactions on its Amended Privilege and Redaction Log as “[n]on-responsive information regarding reserves, reinsurance, and coverage under policies not at issue in this lawsuit.”… To the extent ACE redacted reserve or reinsurance information as irrelevant or non-responsive, those redactions were not appropriate, and ACE must produce the missing information. To the extent ACE redacted reserve or reinsurance information as privileged or protected work product, the privilege log is inadequate to determine whether the redactions were proper. [emphasis added].

Multiple authorities are in accord. Bledsoe v. FCA US LLC, 2021 WL 1720833, at *4 (E.D. Mich. Apr. 30, 2021); Weidman v. Ford Motor Co., __ F.R.D. __, 2021 WL 236072, at *4 (E.D. Mich. Jan. 25, 2021); Mgmt. Registry, Inc. v. A.W. Companies, Inc., 2020 WL 468846, at *5 (D. Minn. Jan. 29, 2020); Patterson Dental Supply, Inc. v. Pace, 2020 WL 13032915, at *8–9 (D. Minn. Dec. 21, 2020); Raines v. Allied Constr. Servs., Inc., 2019 WL 3545889, at *4 (D. Minn. Aug. 5, 2019); TrueNorth Companies, LC v. TruNorth Warranty Plans of N. Am., LLC,  2019 WL 5460208, at *2–3 (N.D. Iowa Mar. 19, 2019); Skky, Inc. v. Manwin USA, Inc., 2014 WL 12527215, at *11 (D. Minn. Oct. 29, 2014).

That appears to be the majority rule:  “[R]edacting allegedly nonresponsive or irrelevant portions of discoverable documents ‘breed[s] suspicions.’” In re State Street Bank & Trust Co. Fixed Income Funds Inv. Litig., 2009 WL 1026013, at *1 (S.D.N.Y. Apr. 8, 2009); Seth Katsuya Endo, “Contracting for Confidential Discovery,” 53 U.C. Davis L. Rev. 1249, 1297 (2020) (describing the “prevailing view”); but cf. Seals v. Leath, 2021 WL 7083331, at *4 (M.D. Ala. July 20, 2021) (describing a “virtually even split”); In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prod. Liab. Litig., 2021 WL 630826, at *1 (S.D. Ohio Feb. 18, 2021) (“In a few cases, courts in this circuit have permitted redactions of irrelevant information, but these redactions are ‘the exception rather than the rule.’”); S. Purcell, “Document Production in Federal Litigation: Can You Redact for Nonresponsiveness?,” The Federal Lawyer (Dec. 2012), 22-23 (noting unclear guidelines and split of authorities and suggesting that case law holds that prohibition is best practice).  Mr. Purcell suggests that, arguably, a responsiveness redaction may be considered “an evasive or incomplete” disclosure triggering a right to sanctions under Rule 37(a).  Id. at n. 2.

The rationale is compelling.  In Am. Mun. Power, Inc. v. Voith Hydro, Inc., 2020 WL 5014914, at *3 (S.D. Ohio Aug. 25, 2020) (citation omitted), the court wrote that redactions such as these are “fraught with the potential for abuse.”  The Voith Hydro court explained:

The defendants do not assert any privilege protecting the information they redacted, and object to disclosing the information on a blanket assertion that the redacted information does not apply to the plaintiff. The plaintiffs may disagree with the defendants’ relevance determination…. What constitutes relevant information is often a matter of judgment, and even irrelevant information within a document that contains relevant information may be highly useful to providing context for the relevant information.

The “no redaction” school of thought provides a “bright line rule.”  Found. for Glob. Sports Dev. v. United States Olympic Comm., 2021 WL 6618556, at *9 (C.D. Cal. June 24, 2021).

 A MINORITY VIEW IS THAT RELEVANCE & CONFIDENTIALITY REDACTIONS SHOULD BE PERMITTED

That said, there are cases and suggestions to the contrary.  Some argue that these holdings fail “to fully appreciate that commercially-sensitive information may still be misappropriated despite an ‘attorneys-eyes only’ restriction.” Philip Favro, New eDiscovery Case Law Developments in 2020: Native Excel Production without Relevance Redactions, FRCP 37(e) Order Rejecting Inherent Authority, and Denial of Proposed Blanket Production 502(d) Order – Innovative Driven (driven-inc.com), citing D. Kessler and A. D’Ambra Redactions are not the problem, they are a solution (nortonrosefulbright.com) (N.Y. Law J. Jan. 31, 2020).

The leading decision supporting relevance redactions is In re: Takata Airbag Prod. Liab. Litig., 2016 WL 1460143, at *1 (S.D. Fla. Mar. 1, 2016):

Defendants raise the concern that without irrelevance redactions, they would have to produce copious amounts of information, potentially disclosing competitively sensitive information with no bearing on this case. Despite the protective orders in this case, Defendants worry that this competitively sensitive information will be disclosed, perhaps to their competitors, perhaps to the media.

The Takata Airbag court agreed, explaining with some force that “ a party is not entitled to receive every piece of relevant information. It is only logical, then, that a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.”  The court then made a fact-based decision regarding the redactions presented, permitting many of them.

To the same effect, after an in camera review: “This information is not linked to Duke’s claims, the Objecting Defendants’ defenses, or other disputed matters in this litigation and is therefore not reasonably calculated to lead to the discovery of admissible evidence under Rule 26. Accordingly, the Court concludes that good cause exists to grant Duke’s Motion in part and exclude this irrelevant information from discovery.” Duke Energy Carolinas, LLC v. AG Ins. SA/NV, 2018 WL 2025901, at *5 (N.C. Super. Apr. 30, 2018) (granting protective order in part).

A decision permitting redactions reasoned:  “There are many reasons why redactions for relevancy are disfavored. A bright-line ‘no redactions for relevancy’ rule is easy to enforce…. At the same time, some courts have, in specific circumstances, permitted relevancy redactions, especially when the redacted information plainly has no potential relevancy to the litigation or is particularly sensitive.”  Found. for Glob. Sports Dev. v. United States Olympic Comm., 2021 WL 6618556, at *9 (C.D. Cal. June 24, 2021).

One writer summarized the competing interests in the age of ESI:

Instead of using stipulated protective orders to reduce the screening costs and privacy concerns of the producing parties, an alternative tactic frequently employed in practice is the redaction of non-relevant or sensitive information from responsive documents. But Rule 34 does not explicitly contemplate such redactions. And, while courts are split on whether it is permissible, the prevailing view is that it is “generally improper for parties to unilaterally make redactions within responsive documents on the grounds that the redacted portions are not relevant.” Courts have identified strong reasons for the dominant trend in the case law, including the possibility of abuse, the importance of seeing relevant information in its context, and the risk that even proper redactions might engender distrust between the parties.

While courts have (for good reasons) generally disfavored the redaction of non-relevant, sensitive information in responsive documents, it is possible that the growth of email will force a new look. And Rule 5.2 already articulates a concern for keeping certain types of information exchanged in discovery presumptively private through redactions. While the United States has not gone that far, Canada’s legal system permits redactions along such lines.

S. Endo, “Contracting for Confidential Discovery,” 53 U.C. Davis L. Rev. at 1296–97 (footnotes omitted)(emphasis added);

Thus, ESI may present unique issues:

The applicability of the general rule [barring such redactions] to Excel workbooks and other potentially expansive databases has not been fully explored. While spreadsheets are considered a single “document” under the discovery rules, they are often designed to pivot, storing vast quantities of information regarding disparate business ventures, product lines, marketing outlets, etc., that can then be queried or otherwise manipulated to produce specific reports of interest to the user. At least one court has recognized that, with regards to multi-volume manuals or large documents that are internally separate, “if entire sections are clearly and convincingly irrelevant, they may be redacted.”

Corker v. Wholesale,  2020 WL 1987060, at *2 (W.D. Wash. Apr. 27, 2020)(citation omitted); cf. Am. Immigr. Council v. U.S. Immigr. & Custom Enf’t, 464 F. Supp. 3d 228, 239 n. 2 (D.D.C. 2020) (“The Court will leave the mechanics of compliance up to the parties; one option would be to negotiate an agreement to produce the spreadsheets in electronic Excel format to counsel for plaintiff without any redactions in the birthdate field, subject to a strict protective order that would require counsel to redact the precise date of birth, and prohibit counsel from disseminating the native data further.”).
In short, courts have found instances where redaction should be permitted.  E.g., Seals v. Leath, 2021 WL 7083331, at *5 (M.D. Ala. July 20, 2021) (holding redactions were justified to comply with court order defining scope of discovery).

A ”CONFERENCE OF THE PARTIES” MAY PROVIDE THE SOLUTION

It appears that the better, but not invariable rule, is that unilateral, “black box” redactions for irrelevance are not permitted.  However, there may be situations where there is good cause for redactions based on irrelevance.

Procedural rules provide two potential solutions to this dilemma: (1) a conference of the parties to reach an agreement; and, (2) a motion for a protective order in the absence of an agreement.

In addition to the possibility of seeking a protective order, the Skky court suggested cooperation as an alternative.  It recommended discussion of the redaction issue in a Rule 26(f) conference of the parties:

Ideally, parties should address and attempt to reach agreement during their Rule 26(f) conference on the bases on which a party might redact allegedly irrelevant or unresponsive, but non-privileged, content from an otherwise discoverable document. Failing that, if a party desires to redact such content from an otherwise discoverable document, it must bring a motion for a protective order, seek leave of the Court to redact, and show “good cause.”

2014 WL 12527215 at n. 18 (citations omitted)(emphasis added).  “[T]he Federal Rules of Civil Procedure provide parties with the option to bring a motion for a protective order. Fed.R.Civ.P. 26(c). Thus, a party seeking the power to unilaterally redact documents for relevance should request leave to redact those portions that the party contends are irrelevant.”  Bartholomew, 278 F.R.D. at 452.

This appears to be a “best practices” solution for cases where it is appropriate.  For example, in Jazz Pharms., Inc. v. Synchrony Grp., LLC, 2019 WL 8438414, at *1 (E.D. Pa. May 23, 2019), the court wrote that “[t]he mutually negotiated Protective Order that controls this case provides for redactions only if the information withheld is (1) neither relevant to the subject of this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence,[3] or (2) subject to the attorney-client privilege or work-product doctrine.” It then sustained relevance redactions.

A stipulated protective order permitting certain redactions was published in Marriott Int’l, Inc. Customer Data Sec. Breach Litig., 2021 WL 7083238, at *1 (D. Md. Jan. 22, 2021).  However, it was a “blunt instrument” that “proved to cause a significant discovery logjam and source for unending disputes between the parties….”  The Court modified the protective order. In In re Intuniv Antitrust Litig., 2018 WL 6492747, at *2 (D. Mass. Dec. 10, 2018), “a protective order that allows [the parties] to redact non-responsive, confidential information in documents that elsewhere contain responsive information.”

A party’s consent to redaction is a relevant factor. Tobacco Tech., Inc. v. Taiga Int’l N.V., 2009 WL 10682045, at *3 (D. Md. Mar. 16, 2009).

A strong argument can be presented that, if a party anticipates a need to redact discoverable documents for reasons other than privilege or work product protection, unilateral action is the least likely to succeed.  Cooperation and transparency, either through a negotiated agreement or, if that fails, a motion for protective order, is preferable. [4]

_____

UPDATE: Thanks to Philip J. Favro, ed., “Selected eDiscovery and ESI Case Law from 2021-22” (The Sedona Conference 2022), 12-13, for his citations to U.S. Risk, L.L.C. v. Hagger, 2022 WL 209746 (N.D. Tex. Jan. 24, 2022)(rejecting redactions with limited exception), and Trellian Pty, Ltd. v. adMarketplace, Inc., 2021 WL 363965 S.D.N.Y. Feb. 3, 2021)(permitting non-party competitor to redact).

_____

[1] Chestnut v. Kincaid, 2021 WL 5845164, at *2 (D. Md. Dec. 9, 2021); Gov’t Accountability & Oversight, P.C. v. Frosh, 2021 WL 785797, at *4 (Md. Ct. Spec. App. Mar. 1, 2021) (unreported); Nutramax Lab’ys, Inc. v. Twin Lab’ys Inc., 183 F.R.D. 458, 465 & n. 11 (D. Md. 1998)(redaction of opinion work product).

[2] Maryland Restorative Just. Initiative v. Hogan, 2018 WL 5295825, at *6 (D. Md. Oct. 25, 2018); Khoshmukhamedov v. Potomac Elec. Power Co., 2012 WL 1357705, at *6 (D. Md. Apr. 17, 2012) (requiring a log).  If the redaction is visible, and the  reason for the redaction and sufficient metadata is present, e.g., “subject,” “date,” “to,” “from,” and “cc,” a separate log may be surplusage. However, given that many litigation review platforms will generate a log, only minimal effort is generally required. In S. Purcell, “Document Production in Federal Litigation: Can You Redact for Nonresponsiveness?,” The Federal Lawyer (Dec. 2012), at n. 10, Mr. Purcell suggests that “the logging requirement of Rule 26(b)(5) does not apply to non-responsiveness redactions. That does not appear to be a majority rule.

[3] Under Rule 26, the scope of discovery is “claims and defenses,” not the “subject matter of the action.”  Additionally, the “reasonably calculated to lead to discoverable information” language was removed in the December 2015 amendments to the Federal Rules of Civil Procedure.  The terminology used may be appropriate as a negotiated standard; however, it may be preferable to refer to the current scope of discovery under Rule 26(b).

[4] This blog focused on discovery not on materials e-filed, e.g., Fed.R.Civ.P. 5.2, or offered in evidence at trial.  Separate concerns are presented in those contexts.  Solomon v. Kess-Lewis, 2013 WL 4760982 (D. Md. Sept. 3, 2013), appeal dismissed, 563 Fed. Appx. 228 (4th Cir. 2014)(sufficient protection will be afforded by Rule 5.2 redaction involving minors).  As to filed materials, the First Amendment is implicated. In re Marriott Int’l, Inc. Customer Sec. Breach Litig., 2022 WL 18710, at *1 (D. Md. Jan. 3, 2022)(“The court may conclude that a redaction was correctly made under the Protective Order, but the public interest compels disclosure of what was redacted. The converse is also true.”)(report and recommendation of Special Master).  This blog does not address video editing.

Share