The Law of [Redacted]

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You may have noticed that the issue of redactions has been in the news lately. Of course, I’m referring to the recent release of the Mueller report, in which Mueller confirmed that [redacted], proving what members of the [redacted] party had been saying all along.

If you’ve seen the report, you know that large sections concerning Russian interference were redacted from public view. This got me thinking about redactions generally. While few attorneys work on matters with national-security concerns, clients often consider certain confidential documents to be of equal or greater importance. They insist, sometimes with good reason, that marking a document “confidential” is insufficient protection. Or they believe that, since the information is irrelevant to the case, it should be redacted regardless of how important it may be. So they ask that documents be redacted prior to their production. But may a party unilaterally redact information simply because it is confidential, sensitive, or irrelevant?

Generally, the answer is no. Most courts that have considered this issue, including the U.S. District Court for the District of Minnesota, hold that redaction is an inappropriate tool for excluding information from a document. These courts note that the Rules of Civil Procedure require parties to produce “documents” as they are maintained in the ordinary course of business; a party’s discovery obligation is not limited to only the relevant information in documents. Besides, redactions often strip the relevant information of their context, hindering the opposing party’s ability to use the information as a part of the case. As the court explained in Bartholomew v. Avalon Cap. Gp., Inc., 278 F.R.D. 441 (D. Minn. 2011), “[i]t is a rare document that contains only relevant information. And irrelevant information within a document that contains relevant information may be highly useful in providing context for the relevant information.”

Other courts have noted that, even when redactions are applied with restraint and in good faith, they tend to breed suspicion and fuel mistrust about the redactions’ propriety. As one court noted, allowing parties to redact documents “would improperly incentivize parties to hide as much as they dare,” a result at odds with liberal discovery policies. Burris v. Versa Prods., Inc., 2013 WL 608742 (D. Minn. Feb. 19, 2013).

But not all courts have agreed, and some courts have sustained a party’s unilateral redactions, provided the information truly was irrelevant. For example, in Spano v. Boeing Co., 2008 WL 1774460 (S.D. Ill. Apr. 16, 2008), the plaintiff moved to compel clean copies of redacted documents produced in discovery. The court denied the motion, permitting the redactions because the information was irrelevant. Other cases have allowed a party to redact information it deemed irrelevant pending an in camera review. But these cases are outliers, usually concern a discrete set of documents, and often involve documents in which the reason for the redactions was evident.

Of course, there are times when redactions are appropriate. Parties are free to redact information protected by the attorney-client privilege or work-product doctrine. The Minnesota and Federal Rules of Civil Procedure also require litigants to redact social security numbers, financial account numbers, and other personal identifiers prior to filing the documents in court. While these rules are limited to items filed with the clerk, courts have frequently cited these rules when addressing what information parties may unilaterally redact. Courts have also permitted redactions where there are specific constitutional or privacy concerns. See, e.g., Schiller v. City of New York, 2006 WL 3592547 (S.D.N.Y. 2006) (permitting redactions because of concerns over freedom of association). But for run-of-the-mill civil litigation, unilateral redactions are generally prohibited and a sure way to lose an inevitable motion to compel.

So what should parties do if they are concerned about producing irrelevant or sensitive information? Obviously, the first step is to seek a confidentiality or other form of protective order from the court. If the existing protective order is insufficient, parties should discuss the issue with opposing counsel or seek a supplemental protective order from the court specifically permitting redactions of irrelevant information or allowing for an in camera review of some or all of the sensitive documents. Although the court may decline to conduct such a review, taking a reasonable, proactive approach will receive a much warmer reception than the inevitable motion to compel that parties invite with unilateral redactions.

Cory D. Olson is a trial attorney with Anthony Ostlund Baer & Louwagie P.A., a litigation boutique in Minneapolis. Cory represents clients in a variety of business disputes, with a significant portion of his practice focused on representing securities professionals and firms in regulatory investigations and arbitrations. A graduate of the University of Minnesota, Cory has written and spoken on employment, shareholder and securities matters. Visit www.anthonyostlund.com or email [email protected] for more information.