In Episode 110, our CEO, Kelly Twigger discusses the increasingly relevant issue of whether relevancy redactions in responsive documents are permitted and how the existence of a protective order impacts that decision.
Welcome to this week’s episode of our Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. eDiscovery Assistant is a SaaS based legal research platform and knowledge center for lawyers and legal professionals, and it is the only legal research database devoted exclusively to eDiscovery case law.
My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, as well as the principal at ESI Attorneys. Each week, I pick a case from our eDiscovery Assistant database and talk about the practical implications of that decision for you, your clients, and your practice.
Before we dive in, if you haven’t yet had a chance to grab our 2022 Case Law Report, download a copy of that for your perusal. Each of the decisions in eDiscovery Assistant is a public link, meaning that you can link to those decisions in your writing. You can also review the full text of the decision without having a subscription to log in.
Let’s dive into this week’s decision. It’s a short one, that comes to us from the case of Kaiser Aluminum Warwick, LLC, v. US Magnesium, LLC. This is a decision from February 27th of 2023. It’s from United States Magistrate Judge Katharine Parker out of the Southern District of New York.
For those of you who follow the Case of the Week, you know that Judge Parker has authored several decisions that we’ve handled here on Case of the Week, including the infamous Nichols v. Noom. Judge Parker is extremely prolific when it comes to discovery decisions, and she is incredibly thoughtful in terms of looking at how the decisions that she is making impact the scope of discovery case law across the country. Judge Parker has 76 decisions in our eDiscovery Assistant database, making her likely the highest judge with a number of decisions in our database.
As always, we tag each of the decisions in our database with our issue-based tagging structure, and this week’s issues include sampling, redaction, protective order, failure to produce, and in-camera review.
What are the facts of the decision before us? The underlying case here involves a breach of contract in which the plaintiff alleges that the defendant failed to fulfill its supply contract for magnesium. If you take magnesium like I do every day, you’ll remember that there was a shortage of magnesium during the pandemic. And while I don’t know the whole history of this case, I’m guessing that is part of the background for this action.
In discovery, the defendant here produced documents that included relevancy redactions, and the plaintiff objected. Relevancy redactions are the sole focus of our discussion for today and have become a very crucial issue in electronic discovery that you need to be thinking about at the outset of your case.
If you’re not familiar with them, relevancy redactions means that the producing party redacted portions of documents that it believed were not relevant to the allegations of the complaint. Redactions are typically limited to privileged material, and we see privileged redactions regularly.
Relevancy redactions have come into focus a lot, I would say within the last decade, but much more prominently within the last three to four years. And the reason that we’re seeing such a focus on relevancy redactions is the way that we communicate via electronic information. If you take a look at any of the platforms on which you communicate with your colleagues, it is pretty commonplace for parties to switch between subjects and never change the subject line of the email or of the slack thread or of the Teams chat. We see a lot of overlapping where search terms might pull up a thread, but certain elements of that thread would not be relevant. The question is whether or not those can be redacted before producing documents. That’s the issue before us today.
On a motion to compel, the plaintiff here seeks to have the court order the defendant to reproduce the documents in unredacted form. It’s important to note that the parties here do have a protective order in place. The facts don’t mention the specifics of a protective order, but generally a protective order allows a party to designate documents as confidential or attorneys eyes only, so that confidential business information is not shared beyond what is necessary for the litigation. Typically, documents with designations cannot be filed with the court without doing so under seal or providing additional protections from them being publicly available.
The defendant here claims that the documents that it redacted contain “irrelevant and completely sensitive” information, which includes information about detailed financial reports, results of research on competitors in the market, reports on segments of the business unrelated to magnesium operations, and information on magnesium production. Some of those you can figure are not going to be relevant to this case, but several of them do seem to overlap with the allegations. The court directed the defendant to submit the documents in question for in-camera review.
The Court starts with Rule 26 of the Federal Rules of Civil Procedure, which of course defines discoverable information as what is relevant to the claim or defense and proportional to the needs of the case. The Court does note that historically courts have disallowed relevancy redactions from otherwise responsive documents for four reasons. First, that a party should not be permitted to determine whether portions of a document being produced are irrelevant. Second, that relevance redactions may eliminate context needed for an adversary to understand the unredacted portions of the document. Third, where a stipulated protective order is in place, the producing party’s information is already protected. And fourth, redactions take time and are expensive and therefore inconsistent with Rule 1’s mandate that cases be administered so as to promote the just, speedy and inexpensive resolution of the case. Following listing those four reasons, the Court cites to multiple decisions in the District Courts in the Second Circuit, where it sits, that disallow relevancy redactions.
But the Court also notes that it believes that relevancy redactions, “can be appropriate in some cases”. The Court then goes on to cite three reasons in which they might be appropriate. First, the Court points to the Rule 26(g) requirement that an attorney has to sign certifying that they’ve made a reasonable inquiry for responsive and relevant documents and that they have fulfilled their production obligations subject to proper objections. The Court notes that:
there is no reason that this Court can discern to find that a party is less able to make good faith relevance determinations as to portions of documents than as to whole documents. Indeed, a party’s Rule 26 (g) certification applies equally to the entirety of a party’s discovery responses and objections.
Second, according to the Court, while relevance redactions take time and may be expensive, if a party wishes to undertake the expense voluntarily, and it can do so in a timely manner without impacting the discovery schedule that is set by the Court or in prejudicing the other party, then the Court found that those redactions may be consistent with Rule 26(b)(3) and Rule 1. On this point, the Court does note that while redactions may, “breed suspicions”, those can be resolved if a party is clear about the need for the redactions and is conservative in the amount of redactions.
In essence, the Court says here that if the redacting party is clear about the reason for the redactions, and clear is going to be tough, then the receiving party will have the context required. My view here is that theoretically that statement from the court can be very true — but it’s also very difficult to parse out whether the redactions actually fall in line with the given reasons from the redacting party. It’s absolutely a case by case and sometimes a redaction by redaction issue. That means it’s not just expensive to do the redactions, but it’s also expensive to have to review and potentially challenge each of them.
The court’s final point in favor of allowing for relevancy redactions is that the existence of a stipulated protective order can help allay concerns that a producing party’s confidential information will not be shared outside of the litigation. But as the court states “if a party does not want to produce irrelevant and confidential information to an adversary and redactions can avoid this result, a party should not necessarily be denied the opportunity to redact if redacting would otherwise not prejudice the other side or delay the case.”
In contrast, the Court then notes that the biggest issue with relevancy redactions is that they lead to motion practice exactly as we have in this decision and Judge Parker states that that is a strong reason to disallow such redactions. According to Judge Parker, “motion practice could be minimized, however, if a producing party discusses its desire to make such redactions with its adversary in advance of its production and seeks permission from the Court to make them.” Those are two new standards for relevancy redaction that we haven’t seen in case law previously. In sum, the Court found that the relevancy redactions must be evaluated on a case-by-case basis and can only be allowed where they are consistent with Rules 1 and 26 and do not deprive the other party of context. But, and this is a very big but, a party should request permission to make such requests in advance of a production. I’m not seeing that happen in litigation. If you are, I’d love to know about it.
Applying those principles to the documents at issue here, the Court found that the defendant did not seek permission to make relevancy redactions. However, because the Court had previously denied plaintiffs request for production of the information that defendant subsequently redacted, the Court allowed the redactions here so that this ruling did not run contrary to its prior rulings. So that’s a very unusual situation where the Court had already said to the plaintiff, you are not entitled to certain types of information. The defendant then redacted based on that ruling, and the Court upheld those redactions. The Court did note, however, that had defendant sought permission before redacting, the Court would have advised it to redact in a different manner than it actually did. And the Court goes on to state with specificity what was wrong with defendant’s redactions — namely, the defendant made inappropriate block redactions on financial tables, and redacted headings and descriptions for the columns and rows that precluded the plaintiff from understanding the context of the redactions and graphs and their titles were redacted inappropriately.
After that analysis, the Court required the defendant to reproduce the documents within two weeks to reveal the responsive information about magnesium inventory and purchases, and to reveal column and row descriptors, as well as the graph titles. The Court did permit other redactions, including redacted bullet points under some tables and charts concerning information that were irrelevant to the action. Finally, the Court also required the parties to seek leave of the opposing party or the Court before redacting any future documents.
As I mentioned earlier, relevancy redactions have become a very hot topic in the last few years. Users creating ESI tend to mix topics in conversation and information sought that may be relevant to a claim and can also contain information that is not relevant, and between competitors in particular, that is a big issue.
Relevancy redactions need to be added to the list of issues that you are considering at the outset of your matter, and that means you need to get in the data to see what needs to be considered for relevancy redactions. If you’re going to enter into an ESI protocol, you may want to include provisions on how to handle redactions for relevancy. In matters that we’ve handled at ESI attorneys, we create a specific category for non-relevant business information, and we’ve used that abbreviation to note redactions after compromising with the other side on what the scope of that non-relevant business information is. The second step we do is to include metadata fields to denote where a redaction has been included and the basis for that redaction so that those fields can be sorted within the opposing party’s review platform and they can be reviewed for any need for potential challenges. We then draft the ESI protocol to provide for both of those categories of redaction and the metadata so that the other side can use the information accordingly and we can avoid that motion practice.
Whether you can redact for relevance is a jurisdiction by jurisdiction issue, so you need to know where your jurisdiction stands before you go down this path. Otherwise, you could be spending a lot of time and money on redactions just to spend more time and money on motion practice and then potentially reproducing the documents without the redactions.
This decision from Judge Parker lays out a very nice roadmap of the arguments to use if you are advocating for or against the use of relevancy redactions, and it’s a good one, so I suggest that you add it to your notes for discovery practice. This decision is an example of a court that was really willing to dig into the nitty gritty on the documents. We’re seeing more and more courts that are asking parties to submit documents for in-camera review and analysis like this decision from the courts, but it will delay the case and interrupt your ability to be able to use documents on depositions if those need to proceed before these motions are resolved.
Plan, plan, plan in advance for how you’re going to handle relevancy redactions to avoid motion practice. Discuss it with the court at your Rule 26 or Rule 16 Conference and understand the court’s position on them. To make the conversation with the court most constructive for your clients, you should be prepared to discuss the specific reasoning for why certain information should be redacted. Have examples from the data that show the court where the issues are arising and why you need the limitations or the redactions that you need and why a protective order is not going to be sufficient. Here the defendant had already gone to the court and gotten a ruling on a subset of information that was not relevant. You’ll want to do the same thing.
That’s our Case of the Week for this week. Thank you so much for joining me. We’re back again the week after the July 4th break with another decision from our eDiscovery Assistant database. As always, if you have a suggestion for a case to be covered on Case of the Week, drop me a line. If you’d like to receive the Case of the Week delivered directly to your inbox via our weekly newsletter, you can sign up on our blog. If you’re interested in doing a free trial of our case law and resource database, you can sign up to get started.
Thanks so much, and have a great week.