Redaction Errors Re-Visited, Again and Again

Hur v. Lloyd & Williams, LLC, 523 P.3d 861 (Wash. App. Div. 3 2023), presents another in a long list of redaction errors.[1]  Two significant errors occurred in the contract dispute action.

Defense counsel “inadvertently disclosed information subject to a claim of privilege when it sent electronic discovery responses to opposing counsel that had been partially redacted but not scrubbed of embedded text.”

However, “[i]nstead of notifying counsel for L&W and sequestering the documents, opposing counsel cited portions of the embedded text in support of a summary judgment motion.”

A disqualification motion followed. It was denied.  “The failure of opposing counsel to take corrective action violated rules of civil procedure and professional conduct. Nevertheless, the trial court ruled disqualification was not an appropriate sanction because counsel’s rule violations were not intentional.”

Producing counsel used “DocReviewPad” to redact emails.  Counsel “explained he redacted the purportedly privileged e-mails by blacking out the substantive content, leaving the header information (i.e., date, sender, recipient, and subject) visible in lieu of a privilege log.”

Receiving counsel later filed a motion supported by screenshots of the produced materials.

[E]ach image has a left-hand column and a right-hand column. The left-hand columns display the results of keyword searches. The search results are sentence fragments containing the search terms “Maggie” and “rent,” accompanied by a denotation of how many “matches” had been found in the searched documents. …  Alongside each set of search results, in the images’ right-hand columns, appears a visual of e-mail headers followed by completely blacked out text.

Producing counsel “recognized the e-mail fragment as content he had intended to redact.”  Counsel then determined that “metadata associated with the redacted portions had not been removed….”  Thus, the content was discoverable when a word search was performed.

Receiving counsel responded that she “did not understand metadata,” among other defenses to the disqualification motion.  She asserted that the search hits disclosed unethical conduct, and was not privileged. Counsel “was adamant she had not tried to uncover privileged information but had simply performed a word search of the discovery materials.”

The court opined that some of the recipient’s explanations “were suspicious” but believed that counsel did not knowingly search through privileged material.  It held that disqualification was too severe and ordered receiving counsel “to destroy the files, promised to banish the e-mail excerpts from the court’s decision-making, and instructed the parties to not mention the excerpts again.”

Producing counsel appealed and the decision was affirmed.  Rule 4.4(b) required the recipient to notify the producing party, and to return sequester or destroy the material; however, the court wrote:

The rules do not prohibit a lawyer from reading inadvertently disclosed information that is subject to a claim of privilege. The only proscription is of the failure to take corrective action.

The court added:

There is nothing improper or unreasonable in conducting a word search on materials containing redactions. Nor is it unethical to simply read the results of that word search. See WSBA Advisory Op. 2216 (noting that “[u]nder the ethical rules,” a recipient of inadvertently sent metadata is “not required to refrain from reading the document, nor [are they] required to return the document” to the sender). Indeed, it is only by reading the materials, at least cursorily, that a recipient can be expected to discover in the first place that they were inadvertently sent privileged information.

It concluded, however, that, once read, Rule 4.4(b) required corrective action by receiving counsel.

In deflecting allegations of intentional wrongdoing, the court wrote:

Even a sophisticated computer user would likely have been confused upon initially encountering results of a word search that did not match up with the contents of the visible text. Someone familiar with metadata would likely come to realize that the mismatched content was attributable to embedded text that had been insufficiently redacted. But an individual such as Ms. Urness, who claims an unfamiliarity with metadata, might have a hard time overcoming the initial confusion.

In a final footnote to that passage, the court stated:

We do not mean to excuse counsel’s lack of familiarity with metadata. The Rules of Professional Conduct require competent representation, including “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” RPC 1.1. To the extent a lawyer uses computer technology in communications, document management, or the exchange of electronic discovery, competent representation requires an understanding of metadata. See WSBA Advisory Op. 2216.

Mistake No. 1 was failure to properly “scrub” the documents prior to production.  Mistake No. 2 was failure of the recipient to notify the sender when the potentially privileged information was read.  Thanks to David McAfee for flagging this decision in Lawyer Who Kept Mistaken Email Release Avoids Disqualification (bloomberglaw.com)(Jan. 31, 2023).

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[1] See, e.g., Jason Tashea, How to redact a PDF and protect your clients (abajournal.com)(Jan. 10, 2019)(“While not excusable, redacting PDFs incorrectly is a common error. Regardless of software you use, you have to be thorough. Here’s what everyone should be doing to properly redact documents…. Now, check to see whether the text is still there by copying and pasting the redacted section into a new document. If your text doesn’t appear, you’re good to go. If it does, then after you e-file or share it electronically, you will have made the same mistake as Manafort’s legal team…. You also might want to remove all the metadata in your document, as well.”); Failed redaction reveals Paul Manafort’s ‘lies to FBI’ – BBC News (Jan. 8, 2019); The Hon. Herbert B. Dixon, Jr., Embarrassing Redaction Failures (americanbar.org)(May 1, 2019)(listing technological history and redaction failures).