Redaction, Action, Traction–Takata, eDiscovery, and FRCP
POSTED ON March 25

Black’s Law Dictionary defines “discovery” as the “[c]ompulsory disclosure, at a party’s request, of information that relates to the litigation.” That definition is as accurate as a one sentence definition can be, but it leaves out an important point: not turning over information that may be covered by another party’s request. Redaction of information from a response is a vital part of the practice of discovery.

We all know that redaction of privileged or protected information is routine. We are also aware that it often occurs to eliminate information outside the scope of discovery. In the recent case of In Re Takata Airbag Products Liability Litigation, MDL No. 2599 (S.D. Fla. Mar. 1, 2016), Judge Frederico Moreno modified, and approved as modified, a proposed plan to redact irrelevant information. In that case, the defendants had requested that they be allowed to redact certain categories of irrelevant information from the materials that were to be turned over to the plaintiffs. They expressed concern that they would be required to give the plaintiffs “copious amounts of information” that could disclose “competitively sensitive information with no bearing on this case.” The defendants were apprehensive that this information could be disclosed to competitors or the media, even with a protective order in place.

Judge Moreno found that the defendants gave persuasive reasons for their redaction request. The plan he approved allowed the defendants to redact information that fell into seven categories, all unrelated to the subject of the litigation. In approving the plan, Judge Moreno made reference to the 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure. Those amendments emphasize that discovery requests should be “proportional to the needs of the case.” F.R. Civ. P. 26(b)(1). He quoted Chief Justice Roberts’ recent comment in his 2015 Year-End Report on the Federal Judiciary that the amended Rule 26 “crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” A party is not entitled to discovery of “every piece of relevant information.” From that premise, Judge Moreno concluded that it was only logical “that a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld.”

Note that Judge Moreno’s order does not give parties a free pass to redact parts of documents deemed “irrelevant.” He was approving a plan that set out the categories of irrelevant information that would be redacted. In addition, the judge was careful to note that the defendants had set out good, “persuasive” reasons for redacting information. Although this was not said explicitly, the clear inference is that a party who wants to redact information bears the burden of convincing the court that it should be allowed to do so.

While the term “redaction” can conjure up images of people spending hundreds of hours marking up paper documents, redaction today is usually done electronically. This type of  redaction reduces the expense of review, which is the biggest single factor in the cost of discovery. Some mistakenly refer to electronic redaction as documents printed out and marked up by hand. The far more efficient approach uses software employing linguistic cues to locate what should be redacted. Whatever method or combination of methods is used, redaction of irrelevant data reduces the burden on the party who has to produce it, and also on the party slated to plow through a mountain of irrelevant data–a win-win situation.




About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.