A document recently published on the Ministry of Justice website, highlighted the importance of properly redacting documents. This example preceded the current data security issues from the Ministry of Social Development computer systems in New Zealand.

The document in question was a cabinet paper about Modernising Court Services. The paper contained sensitive material that was intended to be withheld. When you look deeper at the document, much of the text had not been removed as it was still sitting behind the face of the document. This could be easily be read by a simple ‘copy and paste’ to a new file to view all of the text that was meant to have been removed.

The evolution of redaction

For those not familiar with the meaning of redaction, or redacting documents it is essentially removing privileged or sensitive information from a document. Redacting documents is most common in the legal world during the discovery process.

In a paper based world, this use to involve the blacking/blanking out of selected text from a document. Many may still print electronic files and then physically redact and then rescan. Obviously this is a very burdensome and inefficient process in today’s digital world.

Today the redaction process is predominantly carried out electronically. The advancement in technology has reduced much of the costly and time consuming part of the redaction process, but it is essential to know exactly what you are doing and if the software you are using is doing what you expect of it.

Redaction errors are common – but they shouldn’t be

Solely focusing on the cabinet paper instance alone is unfair, as redaction issues frequently occur. I still come across many similar issues during discovery exercises where parties have not redacted documents properly. Unfortunately many do not find out until they have been provided the documents to the other side.

Lawyers often spend considerable time deciding upon what has to be redacted. It is a shame when after all this hard work they are let down either by the product or people incorrectly applying the redactions.

Redaction errors can cause more than just embarrassment for the law firm and their client. It goes without saying the importance of getting the redaction process right. No one wants to provide the other parties with access to privileged or sensitive information.

Eliminating the challenges

Redaction issues have long been identified by many others. From a New Zealand perspective, Guy Burgess of Clendons and LawFlow, touched on these issues in greater detail in a blog post –

Guy Burgess outlined 3 challenges often faced when redacting documents –

• Making it easy – ideally, the lawyer will be able to make their own redactions directly on each PDF while viewing it anywhere and any time, without the need to install separate standalone software and without any fuss. In particular, this avoids the inefficient and obsolete process of printing documents, manually redacting them, and then re-scanning them.
• Making the redactions permanent and secure – there are many real-world examples of unsafe, or non-permanent, redactions, where an apparently redacted document still allows the underlying text to be easily retrieved
• Handling duplicates – there is no point redacting one version of a document, only to have a duplicate produced in original form.

I would add to this the importance of ensuring the product that you are using to redact is capable of ensuring the redactions are both permanent and secure. This means removing the redacted text from view in the document, but also ensuring the redacted text is not visible in any underlying layer or from an associated text file.

Check what you have redacted

Like with any documents provided to other parties, it is important to know what is ‘going out the door’. This is more important if your exchange set contains redacted documents, which could contain privileged or sensitive material.

Even with reputable software and their providers, often these mistakes are down to operator error. Ensure you know how the software you are using handles redactions, and the person applying the redactions knows they are doing it correctly.

E-Discovery software will take the pain out of the redaction process, but it is not always simply a matter of pushing a ‘magical button’. Do not just assume your redactions will be applied. This can be where some ediscovery products and especially products that were not developed for e-discovery can be found wanting.

If you are unsure of the redaction process or the software you are using – get advice from an expert.