Relevance Redactions Prohibited – Again

Athletics Investment Grp., LLC v. Schnitzer Steel Industries, Inc., 2024 WL 2191007, at *6-7 (N.D. Cal. May 14, 2024), is another in a long line of cases prohibiting redaction of purportedly nonresponsive or irrelevant material from responsive documents.

I have written several blogs about redactions for relevance or confidentiality:

• Relevance Redactions Revisited (Jul. 5, 2023)
• Relevance Redactions Rejected –‘ Rule 26(f) Resolution (Mar. 23, 2022);
• 8 Lessons Learned – Part III – Redaction Provision of ESI Protocol (May 8, 2024).

While Athletics Investment does not break new ground, it is instructional.  The lawsuit was a citizen action to enforce the Clean Air Act.  The court wrote:

BAAQMD submitted five examples of redacted documents; each contains extensive redactions. According to BAAQMD, these documents contain information about Schnitzer’s facility, in addition to “information about hundreds of facilities subject to its oversight mandate.” … BAAQMD states that it redacted information “based solely on the non-responsive quality of the information contained within those documents, i.e., that the information was about other facilities and not protected by another privilege.” …  For its part, AIG argues that the redactions are improper and that “how BAAQMD regulates other facilities may be probative of claims in this case.” …

As a general matter, it is improper to redact portions of otherwise responsive documents on the grounds that those portions are not relevant or responsive. Doe v. Trump, 329 F.R.D. 262, 275 (W.D. Wash. 2018); see In re High-Tech Emp. Antitrust Litig., No. 11-CV-2509-LHK, 2013 WL 12230960, at *1 (N.D. Cal. Mar. 15, 2013) (“The Court will not permit Defendants to redact information based on Defendants’ unilateral assessment of lack of relevance and/or responsiveness.”). “It is a rare document that contains only relevant information; and irrelevant information within an otherwise relevant document may provide context necessary to understand the relevant information.” … Redactions are also highly disfavored where, as here, there is a protective order in place. …

BAAQMD does not explain why the protective order is not sufficient to protect its interests in the redacted material. Accordingly, as BAAQMD has not shown a legal basis for its redactions, BAAQMD must produce unredacted versions of all non-privileged responsive documents by May 17, 2024.

I believe that the majority view is that redactions are generally limited to privilege and work product.  See Relevance Redactions Rejected – Rule 26(f) Resolution (discussing majority and minority views).  Redaction of material protected by statute, personal identifiable information, and information governed by agreements, may also be permissible.  8 Lessons Learned – Part III – Redaction Provision of ESI Protocol.

The best solution is discussion and cooperation in a Rule 26(f) conference.  Id.  If an agreement regarding the scope and methodology of redaction cannot be reached, the next-best solution is a pre-production motion for protective order demonstrating why the general rule should not apply.  Id.

One Judge recently wrote that “motion practice could be minimized, however, if a producing party discusses its desire to make such redactions with its adversary in advance of its production and seeks permission from the Court to make them.”  Relevance Redactions Revisited.

UPDATE: In In Re: Insulin Pricing Litigation, 2024 WL 2808083, at *8-9 (D.N.J. May28, 2024), the court agreed with the general rule that redaction of irrelevant material is not appropriate.  It noted an exception where there is an articulated burden or harm.  Due to a need for anonymity of certain people, it found that redaction was, on the facts presented, appropriate under that exception.