[EDRM Editor’s Note: The opinions and positions are those of Doug Austin and Michael D. Berman.]
Plaintiff Mr. Corkery filed an emergency motion to amend or remove redactions to a document that he planned to use in an upcoming deposition. He also sought a privilege log for the redactions, “if any applies.”
Defendant Coinstar objected. At issue was “whether Coinstar’s production of approximately 2,000 pages of redacted board meeting minutes was improper.” Corkery v. Coinstar, LLC, 2026 WL 3001353 (D.R.I. Oct. 6, 2026).
The redaction of 2,000 out of 2,600 pages took place in a unique procedural posture.
Coinstar explains that these redacted documents were produced not in response to a discovery request but rather voluntarily out of fairness under Federal Rule of Evidence 612(b) because they were reviewed by a witness in preparation for his deposition testimony.
Id. at *2 (emphasis added).
Further, Coinstar added that the “witness reviewed the documents in redacted form while preparing for the deposition….” Id. at *2. Coinstar added that no privilege log was required because it was not withholding the documents based on privilege. Id.
The Corkery court wrote:
Rule 612 of the Federal Rules of Evidence pertains to writings that are used to refresh the memory of a witness either while or before testifying. Rule 612(b) provides that “an adverse party is entitled to have the writing[.]” Here, the writing used to prepare the witness to testify was provided to the opposing party in the same redacted form that the witness reviewed it in preparation for his testimony. Mr. Corkery has not provided any authority, nor has the Court found any, indicating that an unredacted document must be provided when a witness prepared with a redacted document.
Id. at *3 (emphasis added).
As to the privilege log: “Here, the document was provided in the same format it was used to prepare a witness, with redactions. There is nothing before the Court to indicate that any of those redactions were for privilege, nor has Mr. Corkery provided any authority indicating that if documents provided pursuant to Rule 612(b) of the Federal Rules of Evidence are redacted for privilege, then a log must be produced.”
Corkery addresses a unicorn. Redactions for relevance are generally prohibited or disfavored. One exception, discussed in Episode 110: When are Relevancy Redactions Allowed in Responsive Documents? | Minerva26, is Kaiser Aluminum Warrick, LLC v. U.S Magnesium, LLC., No. 22-CV-3105 (JGK) (KHP) (S.D.N.Y. Feb. 27, 2023), where New York Magistrate Judge Katherine H. Parker, stated: “Although many courts do not permit relevancy redactions, this Court believes relevancy redactions can be appropriate in some cases.” Judge Parker did permit the defendant to retain redactions on “information irrelevant to this action”. However, she also wrote: “the parties shall seek the leave of the opposing party or the Court before redacting any future documents.”
Including the Kaiser Aluminum Warrick case, here are other cases involving redaction for relevancy:
- M. Berman, ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy (Ediscovery, LLC May 14, 2025);
- D. Austin, Produce Unredacted Versions of Non-Privileged Text Messages, Says Court (eDiscoveryToday Jan. 8, 2025);
- D. Austin, Produce Unredacted Versions of Leases, Court Orders (eDiscoveryToday Nov. 6, 2024);
- M. Berman, Relevance Redactions Prohibited – Again (Ediscovery, LLC May 17, 2024);
- M. Berman, 8 Lessons Learned – Part III – Redaction Provision of ESI Protocol (Ediscovery, LLC May 8, 2024);
- M. Berman, Relevance Redactions Revisited (Ediscovery, LLC Jul. 5, 2023);
- D. Austin, Relevancy Redactions Allowed in Part by Court (eDiscoveryToday Jun. 7, 2023);
- M. Berman, Relevance Redactions Rejected – Rule 26(f) Resolution (Ediscovery, LLC Mar. 23, 2022);
- D. Austin, Redacted Audio Leads to Court Compelling Production of Full Videos (eDiscoveryToday Feb. 2, 2022).
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