[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
This is the third follow up to 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), and 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
The Social Media Addiction court resolved a dispute over – – and entered an order governing – – redaction as part of a court-ordered ESI Protocol. 2024 WL 1786293 at *8-10.
“Redaction,” especially when it is based on an argument that part of a document is not responsive, is a hot topic. See Relevance Redactions Revisited (Jul. 5, 2023). In that blog, I wrote that the holding of Kaiser Aluminum Warwick, LLC, v. US Magnesium, LLC, 2023 WL 2482933 at *2 (S.D.N.Y. Feb. 27, 2023),was: “In sum, this Court believes relevancy redactions must be evaluated on a case-by-case basis. Where such redactions are consistent with Rule 1 and Rule 26 and do not deprive the other party of context, they may be appropriate. However, a party should request permission to make such redactions in advance of a production.”
I have written that some authorities deny permission to redact irrelevant information from discoverable documents. There a minority view to the contrary.
I suggested a proposed solution using a Fed.R.Civ.P. 26(f) conference of the parties where appropriate, writing: “If a party foresees the need to redact irrelevant or confidential information from an otherwise discoverable document, the best practice would be to negotiate a stipulated agreement permitting such redaction. The next best practice would be to file for a protective order permitting such redactions.” Relevance Redactions Rejected – Rule 26(f) Resolution (Mar. 23, 2022).
In Social Media Addiction, the court printed the parties’ competing redaction proposals for the ESI Protocol, noted where there was agreement, and then wrote: “Defendants’ proposal would allow redactions based on the law of any jurisdiction, including foreign law. At the [hearing], counsel for Snap argued that the European Union’s General Data Protection Regulation (GDPR) legal regime could be a basis for redaction. Plaintiffs argued that European law should not be binding on or applicable to a proceeding in this Court, which is governed by U.S. law. Snap cited no binding Ninth Circuit or United States Supreme Court law which requires this Court to apply European substantive law with regard to a discovery issue governed under U.S. law. Accordingly, the Court rejects Defendants’ language to the extent it would permit redactions to be made based on an assertion that such redactions are required (or permitted) by foreign law, such as the GDPR. No redactions shall be made based on or justified by non-U.S. law.”
Consistent with what I suggest is the majority view, relevance redactions were not permitted.
See Michael Berman, Relevance Redactions Revisited (July 5, 2023).
The court then ordered the parties to include the following in their ESI Protocol:
(a) A Producing Party may redact (i) information subject to the attorney client privilege or the work product protection (PRIV); (ii) information that cannot be disclosed pursuant to the Stored Communications Act (SCA); (iii) source code subject to separate agreement applicable to production of source code (CODE); (iv) personal identifying information (PII) including phone numbers, personal addresses, personal email addresses, the month and day of birth, driver’s license numbers, and other PII agreed to by the Parties (for example, the Parties shall complete their meet and confer on whether or not to redact users’ ages and years of birth). In any event, there shall be no redaction of illnesses, injuries, and medical diagnoses. To the extent a document or pleading contains PII, the Parties shall designate such documents at the appropriate Confidentiality level under the Protective Order and shall comply with Fed. R. Civ. P. 5.2 with regard to filings with the Court.
(b) No redactions for relevance may be made within a produced document or ESI item. If, during the course of discovery, the Parties identify other kinds of information that any Party has a reasonable basis for redacting, the Parties will meet and confer on a case-by-case basis regarding that information before such redactions are made. If the Parties cannot agree, they may seek resolution from the Court.
(c) The Producing Party will indicate, on the face of the redaction, the asserted reason(s) for the redaction (PII, SCA, CODE, and/or PRIV) and the REDACTION TYPE metadata field shall indicate that the document contains redactions and the reason(s) for the redaction.
(d) Notwithstanding the foregoing, this provision shall not be read to prohibit redactions permitted under applicable U.S. law or the Protective Order.
(e) Where a responsive document contains both redacted and non-redacted content, the Parties shall produce the non-redacted portions of the document and the OCR text corresponding to the non-redacted portions.
(f) Native Redactions. Spreadsheet files requiring redaction, including without limitation Microsoft Excel files, shall be redacted and produced natively (unless the Parties agree to production in some other format). In addition, a Producing Party may natively redact other files that cannot be properly imaged for redaction.
(g) All images of redacted files shall be processed to show all comments, revision marks, speaker notes, marks made in track changes, or other user-entered data which are visible in a normal view of the document in its native application, unless such material is redacted and marked as redacted in accordance with this section. Where possible, any occurrences of date/time auto-field items, including in headers and footers, will be removed and replaced with the term AUTODATE to prevent the current date from being printed. Email header information (e.g., date and/or subject line) shall not be redacted unless it is independently privileged. The Parties shall honor reasonable requests for the production of particular redacted documents in other formats where the image is not reasonably usable.
(h) Color. Redacted versions of documents that would have been produced in color in their un-redacted form shall be produced in color as detailed herein. [emphasis added].
Every ESI Protocol should be unique and tailored to the case. This case is large and complex.
Some key points that may be generic are that, of course, privileged and work product information may be redacted.1 The court permitted redaction of information where federal law prohibited disclosure. PII, presumably of non-parties, and source code governed by a separate agreement, could be redacted. Further, a protective order could permit other redactions.
Consistent with what I suggest is the majority view, relevance redactions were not permitted. See Relevance Redactions Revisited. Redaction boxes must disclose the reason for the redaction and a load file field must be provided to permit the recipient to search for redactions.
Notes
1 There, the issue may be whether the redactions must be entered on a privilege log.
