Blago Redaction Snafu Offers Bad Example of eDiscovery Practice
There have been three recent examples of bad digital redaction processes of documents, that as a result, have revealed privileged information. One involved the TSA revealing confidential security practices in what they thought to be a redacted document, another involved a case against Facebook where privileged information thought to be redacted in court documents was exposed. These documents were available on the Web. The most recent was this past week when a motion was filed to issue a subpoena to President Obama in the Rod Blagojevich criminal trial in the U.S. District Court in Chicago. Whoever was responsible for redacting information from the motion failed to properly do so, so that anyone who downloaded and viewed the PDF of the motion was able to copy and paste the “redacted” information. The topic of this article focuses on the technological snafu and its relation to the world of eDiscovery. For more on the actual meat of the motion and what was suppose to be redacted, you may visit the Web sites of NBC Chicago, Fox News or Chicago Breaking News for WGN/Chicago Tribune.
This inability to properly redact information from documents is disconcerting from two perspectives: 1. It’s not that difficult to redact information in a document. 2. How often are documents assumed to be redacted but just aren’t?
LexTekReport checked in with Christine Musil, Director of Marketing for Informative Graphics Corporation, an Arizona-based technology company that creates collaboration, annotation and redaction software. Christine tells us that there are fairly common misunderstandings of redaction software tools and several big examples of misuse.
Christine says that a common misuse of redaction tools in either MS Word or Acrobat is that they use drawing shapes to cover the text, not realizing that all they are doing is covering the visual text. Christine says that “A person could highlight the text under the drawing shapes, copy the text and paste it into another document to see/read the hidden text. It appears in this particular [Blagojevich] case, the representative from the Blagojevich legal team or the court, may have started using the Acrobat redaction tool, but did not finalize the redaction process within the document.” They would have had to apply the redactions and resave the document following the redaction process. “There is a way you can use the redaction tool in Acrobat and not finalize it, so that the text underneath the crossed-out sections can be copied digitally.”
According to Christine, proper redaction is easy to do, but it must be done completely and tested properly. “It’s pretty simple. There is a plug-in for MS Word. We suggest people use a tool specifically designed for redaction. Adobe Acrobat Professional also has redaction in it. That is the most common tool used to do it and the most common way to have it be wrong. I don’t think I’ve seen a single redaction mistake like this happen with anything besides Adobe Acrobat Professional. They either miss that final step or they heard it had redaction and they grab a drawing box and they think that’s it. People don’t understand that what they see on the screen doesn’t completely correlate to what is inside the document. A lot of people don’t understand this, even among legal professionals.”
We checked in with our resident eDiscovery expert, Tom O’Connor, to lend his perspective to the redaction issue in regard to eDiscovery document exchanges. Tom tells us that, “Some reports may have indicated that there was a ‘glitch’ in the software. This is a competence issue, not a computer software issue. Either the users of the software were not trained properly, or did not pay attention during training. This is a ‘user’ issue. Folks kind of fumble and stumble around with technology. They don’t pay for training. They don’t buy a good product like “Redact-It”, where they’re going to get good training. Instead, they kind of teach themselves and this is what happens, they make a mistake. This isn’t a technology issue, it’s a people issue.
“And unfortunately then, for the implications for eDiscovery, what if you inadvertently in the course of litigation revealed some privileged communication to the other side and that person clicked on the document and lo and behold, there’s privileged information?
“There’s two different points to consider there. The first is: have a ‘claw-back’ provision when you’re going into your ‘meet and confer’. Now that presupposes that you actually do a ‘meet and confer’ and understand what you should be presenting and asking for. The first piece of advice I give my clients is ‘read the rule book’ because people don’t understand that. I would venture to say that in well over 90% of the meet and confers, people are not asking for a ‘claw back’ provision. This would be a perfect example of when you could use it. Because you could say, ‘Hey, we inadvertently produced something that was privileged and you have to give it back.’ And under the Federal Rules, if you’ve given it to another party, you have to get it back from them. Now, that still doesn’t help the damage being done, if somebody has opened that and read it. And they can use it in their thought process.
“You’ve got to understand in the wonderful world of technology what it is you’re doing. And people don’t. You could inadvertently do exactly this in a big case. You could think you’re redacting some privileged information, send it to the other side in a production. Then realize that you didn’t use the redaction tool properly. A. If you have a ‘claw back’, you can automatically get it back. B. Even if you don’t have a ‘claw back’, you can probably request it and the court might order it back. However, sometimes, some Judges have been in a position of “If you didn’t do a thorough job…” The ‘claw back’ provisions are designed to talk about inadvertent mistakes in production and the inadvertent piece is when you did your best to protect the privilege. I’m not sure the Federal Rules of Civil Procedure and the Federal Rules of Evidence consider the ineffective use of technology as a good faith effort to protect privilege. If you have not protected your privilege within documents, for which you have a duty to your client, you may be exposing yourself to a malpractice case. You have to take the steps necessary to protect a case. You don’t need a computer science degree to properly redact privilege information in documents. Not having done the training, having learned the product, are you in effect breaching your duty to your client?”
According to our experts, redaction is an easy process in theory, but must be tested properly before document release to ensure effectiveness. There are a some good redaction products out there – one would be Redact-It, AIRedact for large volumes of documents, another would be Adobe Acrobat Professional. But most importantly, proper training by the individuals using the products is absolutely essential.
About our experts:
Tom O’Connor (below) is the Director of the Legal Electronic Documents Institute.
Tom is a nationally-known consultant, speaker and writer in the area of computerized litigation support systems. Tom’s involvement with large cases led him to become familiar with dozens of software applications for litigation support and he has both designed databases and trained legal staffs in their use of eDiscovery tools. Tom is the author of The Automated Law Firm, a guide to computer systems and software published by Aspen Law & Business, now in its fourth edition and The Lawyers Guide to Summation, published by the ABA.