Anticipation of Litigation Advisor
Redaction in the News
January 21, 2019
Redaction, the editing of a document to hide portions to prevent public view, has been in the news. Recently, in a high profile filing in a criminal case, the failure to properly redact a document resulted in public access to information that should have been sealed. As noted in the Washington Post and other papers, a filing by counsel for Paul Manafort inadvertently disclosed that he shared 2016 presidential campaign polling data with an associate said to have ties to Russian intelligence. “Paul Manafort shared 2016 polling data with Russian associate, according to court filing,” Washington Post, Jan. 8, 2019. According to the ABA Journal, “Looking at the defense’s filing this week, they appear to be redacted. But by highlighting the black bars, the obscured text can be copied and pasted into a new document for anyone to read.” “How to redact a PDF and protect your clients,” ABA Journal, Jan. 10, 2019.
The Federal Rules of Civil Procedure require that certain confidential information must always be redacted from public filings. Rule 5.2(a) states:
(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual's social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only:
(1) the last four digits of the social-security number and taxpayer-identification number;
(2) the year of the individual's birth;
(3) the minor's initials; and
(4) the last four digits of the financial-account number.
Rule 5.2(d) further provides “[t]he court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.” Under Rule 5.2(e), the court for “good cause shown” may (1) “require redaction of additional information; or (2) limit or prohibit a nonparty's remote electronic access to a document filed with the court.” Under Rule 5(f), “[a] person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.” A party, under Rule 5.2(g), may also file a reference list which identifies redacted documents: “A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.”
Importantly, the failure to redact may result in waiver — “A person waives the protection of Rule 5.2(a) as to the person's own information by filing it without redaction and not under seal.” Id., Rule 5.2(h). Redaction can also be required by protective orders entered by the Court. See Federal Rules of Civil Procedure 5.2(e) and 26.
Redaction and the use of sealed documents present problems for parties who seek to protect documents and information from public disclosure. Before sealing or allowing redaction, generally, courts must weigh the public’s right of access against the parties’ legitimate interest in maintaining the confidentiality of trade secrets or other sensitive information. “Submitted documents within the common law right may be sealed, however, if competing interests outweigh the public's right of access.” Nixon v. Warner Comms., Inc., 435 U.S. 589, 597, 598-99 (1978). The First Amendment can support a right of public access: “[t]o avoid disclosure under the First Amendment right of access, the movant must show ‘the denial [of access] is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.’” Good v. West Virginia-American Water Co., (S.D.W.Va. Aug. 4, 2017) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982)). But, “[f]or a right of access to a document to exist under either the First Amendment or the common law, the document must be a ‘judicial record,’” In re Application of U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013). “A document becomes a judicial document when a court uses it in determining litigants' substantive rights.” In re Policy Management Systems Corp., Nos. Nos. 94-2254, 94-2341, 1995 WL 541623, at *4 (4th Cir. Sept. 13, 1995).
Redaction is important because it protects information that should not be made public. Parties must comply with rules, like FRCP 5.2, and court orders requiring redaction or sealing of documents. Failure to comply results in improper disclosure of information and can result in sanctions issued against the offending party.
Before the advent of word processing and Adobe format documents, redacting involved blacking out confidential text with a magic marker and holding the page up to the light to ensure the text could not be read. Today, redaction is more complex and requires a basic technological proficiency.
The lesson is to redact properly. (Here are instructions for redaction with Adobe Pro (from the ABA Journal)). Involve your knowledgeable secretarial or IT staff to make sure you get it right and check your work to avoid inadvertent disclosure.
Author: Thomas J. Hurney, Jr., Member, Health Care Litigation
© January 2019 Jackson Kelly PLLC