With electronic court filings becoming a thing of the present, not the future, adequate electronic redaction is now essential. For example, General Order 08-02, issued by the United States District Court, Central District of California, requires redaction to protect "sensitive and private information." The Order provides, at Part IV.E:
“The parties shall refrain from including, and/or shall redact where inclusion is necessary, the following personal data identifiers from all documents filed with the Clerk.
- Social Security Numbers: If an individual’s Social Security Number must be included in a document, only the last four digits of that number should be used.
- Taxpayer Identification Numbers: If a taxpayer identification number must be included in a document, only the last four digits of that number should be used.
- Names of Minor Children: If the involvement of a minor child must be mentioned, only the initials of that child should be used.
- Dates of Birth: If an individual’s date of birth must be included in a document, only the year should be used.
- Financial Account Numbers: If financial account numbers are relevant, identify the name or type of account and the financial institution where maintained, and only indicate the last four digits of the account number.
- Home Address: If a home address must be included, only the city and state should be used.
- Additional Information: For good cause, the assigned judge may require redaction of additional information.
Before the digital world was fully upon us, redactions were accomplished with a black marker. Now, attorneys and support staff are preparing documents for filing electronically, and redactions are applied with electronic tools. Unfortunately, some people believe that a redaction is sufficient if the private text is visibly obscured. But with digital information, merely obscuring text may not (or will not) actually remove it from the electronic document. The results of incomplete redaction can be devastating.
In a sex discrimination case against General Electric, Sanford, Wittels & Heisler (based in Washington, D.C.) electronically filed documents for the plaintiffs with large passages redacted. (Douglas Malan, GE Suffers a Redaction Disaster (May 28, 2008) www.law.com.) The redactions were insufficient:
“But as of late last week, you could download several documents through PACER's federal court filing system, copy the black bars that cover the text on the screen and paste them into a Word document.
Voilà. Information about the inner-workings of GE's white, male-dominated management and their alleged discriminatory practices against women, which is supposed to be sealed by court order, appears with little technical savvy required.
(Ibid.) The fallout is that a potential settlement may unravel because of the disclosure of information about General Electric that both sides agreed to keep secret.
A PACER account representative was unaware of the problem until she was guided through the process of downloading, copying and pasting the "redacted" information into new document, where, like magic, it appeared in an unredacted form. It is important to note that PACER employees do not check filings for redaction adequacy. That obligation rests on the lawyers. As noted in Malan's law.om article, "Where once a black marker strike on a piece of paper was sufficient, redaction in the digital world requires special software and the know-how to delete the words behind the shield." In the GE case, "Plaintiff's attorney Sanford couldn't say what process or software his law firm used to redact the information in the Schaefer case. 'Quite frankly, I'm not involved in the mechanics,' he said." (Ibid.) One would venture a guess that this unfortunate attorney knows now.
In a subsequent post I plan on reviewing Adobe Acrobat v.8, which provides secure redaction tools sufficient for all filings and at a price point that should be affordable to even the smallest firms.