The issue of whether irrelevant material in a relevant document can be redacted when the document is produced in discovery has long been a hot topic. See, e.g., Relevance Redactions Rejected – Rule 26(f) Resolution – E-Discovery LLC (ediscoveryllc.com)(Mar. 23, 2022). In that blog, I suggested that negotiation is the best solution.
One recent development in the sunshine law context is Seman v. Baldwin Borough, described in Tucker Arensberg, P.C., PA Office of Open Records Holds That Borough Cannot Fully Redact Non Responsive Entries in Legal Invoices | Tucker Arensberg, P.C. – JDSupra (June 27, 2023). There, a local government redacted non-responsive information when it produced invoices in response to a Pennsylvania freedom of information or public records request. The article states that the court wrote that “the Borough is not permitted to redact nonresponsive information from responsive records.” While Seman is not available on Westlaw, the article cites Pennsylvania authorities distinguishing between redacting a record as non-responsive, which is not permitted, and withholding it entirely if non-responsive, which is permitted. Under Pennsylvania’s open records act, “we conclude that an agency cannot claim ‘non-responsiveness’ to a request as a legal basis to redact a public record that the agency has decided to disclose.” Haverstick v. Pennsylvania State Police, 273 A.3d 593, 599 (Pa. Commw. Ct. 2022).
Kelly Twigger recently highlighted another development, Kaiser Aluminum Warwick, LLC, v. US Magnesium, LLC, 2023 WL 2482933 (S.D.N.Y. Feb. 27, 2023), in Episode 110: When are Relevancy Redactions Allowed in Responsive Documents? | eDiscovery Assistant (Jun. 28, 2023). Doug Austin did the same in Relevancy Redactions Allowed in Part by Court (ediscoverytoday.com), and I appreciate their publicizing and explaining the decision in their excellent blogs.
That decision agrees with my earlier suggestion that:
“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.”
Relevance Redactions Rejected – Rule 26(f) Resolution (2022). In fact, as pointed out in my blog, use of a negotiated redaction agreement was suggested in several earlier decisions.
In her blog, Kelly explains that the defendant redacted “irrelevant and completely sensitive information.” Id. The blog confirms the holdings that the general rule is that these redactions are not permitted; however, it explains that relevance redactions “can be appropriate in some cases”. Id. It adds:
“In essence, the Court says here that if the redacting party is clear about the reason for the redactions, and clear is going to be tough, then the receiving party will have the context required. My view here is that theoretically that statement from the court can be very true — but it’s also very difficult to parse out whether the redactions actually fall in line with the given reasons from the redacting party. It’s absolutely a case by case and sometimes a redaction by redaction issue. That means it’s not just expensive to do the redactions, but it’s also expensive to have to review and potentially challenge each of them.
The court’s final point in favor of allowing for relevancy redactions is that the existence of a stipulated protective order can help allay concerns that a producing party’s confidential information will not be shared outside of the litigation. But as the court states ‘if a party does not want to produce irrelevant and confidential information to an adversary and redactions can avoid this result, a party should not necessarily be denied the opportunity to redact if redacting would otherwise not prejudice the other side or delay the case.’”
Id. The blog adds:
According to Judge Parker, “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.”
Id. (emphasis added).
The holding of Kaiser Aluminum was: “In sum, this Court believes relevancy redactions must be evaluated on a case-by-case basis. Where such redactions are consistent with Rule 1 and Rule 26 and do not deprive the other party of context, they may be appropriate. However, a party should request permission to make such redactions in advance of a production.” 2023 WL 2482933, at *2.
Importantly, the Kaiser Aluminum court had already made the pertinent relevancy determination in another context. Id. at *2. Denying the right to redact would have been inconsistent with that prior decision.
Much like an analogous privilege log, the Kaiser Aluminum court ordered that column headers on spreadsheet-type tables, and titles of graphs, be unredacted, while permitting the entered data to remain redacted. It added: “Further, the parties shall seek the leave of the opposing party or the Court before redacting any future documents.” Id. at *3.
Kaiser Aluminum is well-reasoned. However, absent agreement of the parties, I tend to side with the 2011 Minnesota decision quoted in my earlier blog as the general principle:
“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.”
Relevance Redactions Rejected – Rule 26(f) Resolution (emphasis added). Further, discovery is designed to disclose evidence for use in trial. It may be prejudicial to a discovering party to require that it introduce a redacted document in a jury trial.
In any event, it is clear that there is no “one size fits all” rule. Negotiation, transparency, and agreement – – a/k/a cooperation – – is the only safe harbor.
UPDATE: See D. Austin, Another Redaction Gaffe, This One by a Major Company (ediscoverytoday.com)(July 5, 2023)(“While this is a story of another redaction gaffe (this time by a major company), it’s so ‘low-tech’, it could have happened decades ago. But it happened last week.”).
UPDATE: Perhaps one of the most informative blogs on this topic was posted by Kelly Twigger on LinkedIn. That blog is Isha Mrathe, Sony’s Sharpie Redaction Gaffe Is Egregious, But Underscores Common E-Discovery Gaps | Legaltech News (law.com)(July 3, 2023). It addresses FTC v. Microsoft. Ms. Mrathe wrote: “The redactions were made in black Sharpie instead of using redaction tape, or redaction software, a more common method. The problem: When one scans a document, the Sharpie ink can occasionally lighten, making some redactions visible on the electronic document…. For Sony, this meant the inadvertent disclosure of the profit margins the company shares with its publishers, along with revenue details relating to its ‘Call of Duty’ franchise, among other proprietary financial information.” The blog also includes Craig Ball’s excellent forensic analysis. Craig said:
In fact, “to my eye, the borders of the redactions are too uniform and the leading and trailing edges too consistently rounded to suggest a human hand holding a permanent marker. My guess is that the HTML color code for the shade of black used to overwrite was not exactly the same as the HTML color of the text and, when the image was rendered, the difference manifested in the artifacts seen on the document,” he said.
He also explained: “Effective redaction demands you thoroughly redact both the visual raster graphic component [a two-dimensional picture comprised of pixels] as well as the textual component of the redacted electronic document….” Ms. Mrathe’s article is well worth reading.
 Kaiser Aluminum was a breach of contract action with a force majeure defense. The discovering party argued “that redactions for relevance are disfavored when there is a protective order in place, as one is here.” The court reviewed a sample selection in camera. The documents contained financial information and research on competitors, among other things.