Production Archives

Percentage of eDiscovery Sanctions Cases Declining – eDiscovery Trends

December 11, 2012

According to Kroll Ontrack, the percentage of eDiscovery cases addressing sanctions “dropped by approximately ten percent” compared to 2011, while “cases addressing procedural issues more than doubled”. Let’s take a closer look at the numbers and look at some cases in each category.

As indicated in their December 4 news release, in the past year, Kroll Ontrack experts summarized 70 of the most significant state and federal judicial opinions related to the preservation, collection, review and production of electronically stored information (ESI). The breakdown of the major issues that arose in these eDiscovery cases is as follows:

Thirty-two percent (32%) of cases addressed sanctions regarding a variety of issues, such as preservation and spoliation, noncompliance with court orders and production disputes. Out of 70 cases, that would be about 22 cases addressing sanctions this past year. Here are a few of the recent sanction cases previously reported on this blog.
Twenty-nine percent (29%) of cases addressed procedural issues, such as search protocols, cooperation, production and privilege considerations. Out of 70 cases, that would be about 20 cases. Here are a few of the recent procedural issues cases previously reported on this blog.
Sixteen percent (16%) of cases addressed discoverability and admissibility issues. Out of 70 cases, that would be about 11 cases. Here are a few of the recent discoverability / admissibility cases previously reported on this blog.
Fourteen percent (14%) of cases discussed cost considerations, such as shifting or taxation of eDiscovery costs. Out of 70 cases, that would be about 10 cases. Here are a few of the recent eDiscovery costs cases previously reported on this blog.
Nine percent (9%) of cases discussed technology-assisted review (TAR) or predictive coding. Out of 70 cases, that would be about 6 cases. Here are a few of the recent TAR cases previously reported on this blog, how many did you get?

While it’s nice and appreciated that Kroll Ontrack has been summarizing the cases and compiling these statistics, I do have a couple of observations/questions about their numbers (sorry if they appear “nit-picky”):

Sometimes Cases Belong in More Than One Category: The case percentage totals add up to 100%, which would make sense except that some cases address issues in more than one category. For example, In re Actos (Pioglitazone) Products Liability Litigation addressed both cooperation and technology-assisted review, and Freeman v. Dal-Tile Corp. addressed both search protocols and discovery / admissibility. It appears that Kroll classified each case in only one group, which makes the numbers add up, but could be somewhat misleading. In theory, some cases belong in multiple categories, so the total should exceed 100%.
Did Cases Addressing Procedural Issues Really Double?: Kroll reported that “cases addressing procedural issues more than doubled”; however, here is how they broke down the category last year: 14% of cases addressed various procedural issues such as searching protocol and cooperation, 13% of cases addressed various production considerations, and 12% of cases addressed privilege considerations and waivers. That’s a total of 39% for three separate categories that now appear to be described as “procedural issues, such as search protocols, cooperation, production and privilege considerations” (29%). So, it looks to me like the percentage of cases addressing procedural issues actually dropped 10%. Actually, the two biggest category jumps appear to be discoverability and admissibility issues (2% last year to 16% this year) and TAR (0% last year to 9% this year).

So, what do you think? Has your organization been involved in any eDiscovery opinions this year? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant Compelled to Produce Additional Discovery to Plaintiff – eDiscovery Case Law

November 21, 2012

During this Thanksgiving week, we at eDiscovery Daily thought it would be a good time to catch up on some cases we missed earlier in the year. So, we will cover a different case each day this week. Enjoy!

Where the facts of the case led a court to conclude that certain electronically stored information (ESI) could contain evidence relevant to the case, the court ordered a party to comply with its discovery obligations related to that ESI.

In Freeman v. Dal-Tile Corp., No. 5:10-CV-00522-BR, 2012 U.S. Dist. (E.D.N.C. Oct. 2, 2012), a case alleging harassment and discrimination, among other claims, against her former employer Dal-Tile Corporation, the plaintiff brought a motion to compel, asserting that some of the defendant’s discovery responses related to its search for ESI were deficient.

Specifically, the plaintiff sought to compel a keyword search of preserved e-mails belonging to certain individuals for a time frame that began two months after the plaintiff left Dal-Tile. The defendant objected, arguing that because the plaintiff had already left the company during the time frame for e-mails requested, any such e-mails “could not be relevant to Plaintiff’s harassment claims, because ‘the sole issue is whether Dal-Tile knew or should have known of the harassment and failed to take appropriate steps to halt it.’”

North Carolina Magistrate Judge William A. Webb disagreed, stating that it was “reasonable to expect” that e-mails written or received during that time period “could contain historical e-mails, i.e., an e-mail chain, given that the requested search period begins only two months after Plaintiff resigned.” Moreover, the plaintiff’s request hit the mark for other reasons: “The custodians whose e-mail Plaintiff requests to have searched are . . . the human resource officer who investigated Plaintiff’s complaints, and . . . the regional vice-president to whom [the human resources officer] reported her investigation findings.” In addition, the search terms that the plaintiff requested were “appropriately limited in number and scope and, thus, reasonably calculated to lead to the discovery of admissible evidence.”

Moreover, Judge Webb noted, Dal-Tile did “not assert[ ] that it would be unduly burdensome to search the e-mail[s requested]” or the hard drive of the human resources officer, a search of which the plaintiff had included in her request.

Therefore, the plaintiff’s motion was granted.

So, what do you think? Should the plaintiff’s motion have been granted? Please share any comments you might have or if you’d like to know more about a particular topic.

From All of Us at CloudNine Discovery and eDiscovery Daily, Happy Thanksgiving! eDiscovery Daily will resume with new posts next Monday.

Case Summary Source: Applied Discovery (free subscription required). For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Louisiana Order Dictates That the Parties Cooperate on Technology Assisted Review – eDiscovery Case Law

November 19, 2012

During this Thanksgiving week, we at eDiscovery Daily thought it would be a good time to catch up on some cases we missed earlier in the year. So, we will cover a different case each day this week. Enjoy!

In the case In re Actos (Pioglitazone) Products Liability Litigation, No. 6:11-md-2299, (W.D. La. July 27, 2012), a case management order applicable to pretrial proceedings in a multidistrict litigation consolidating eleven civil actions, the court issued comprehensive instructions for the use of technology-assisted review (“TAR”).

In an order entitled “Procedures and Protocols Governing the Production of Electronically Stored Information (“ESI”) by the Parties,” U.S. District Judge Rebecca Doherty of the Western District of Louisiana set forth how the parties would treat data sources, custodians, costs, and format of production, among others. Importantly, the order contains a “Search Methodology Proof of Concept,” which governs the parties’ usage of TAR during the search and review of ESI.

The order states that the parties “agree to meet and confer regarding the use of advanced analytics” as a “document identification mechanism for the review and production of . . . data.” The parties will meet and confer to select four key custodians whose e-mail will be used to create an initial sample set, after which three experts will train the TAR system to score every document based on relevance. To quell the fears of TAR skeptics, the court provided that both parties will collaborate to train the system, and after the TAR process is completed, the documents will not only be randomly sampled for quality control, but the defendants may also manually review documents for relevance, confidentiality, and privilege.

The governance order repeatedly emphasizes that the parties are committing to collaborating throughout the TAR process and requires that they meet and confer prior to contacting the court for a resolution.

So, what do you think? Should more cases issue instructions like this? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required). For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant Claiming Not Reasonably Accessible Data Has Some ‘Splaining To Do – eDiscovery Case Law

November 9, 2012

In Murray v. Coleman, No. 08-CV-6383, 2012 U.S. Dist. (W.D.N.Y. Sept. 12, 2012), the plaintiff alleged harassment and retaliation in connection with his employment with the New York State Department of Correctional Services (DOCS). This discovery dispute arose when the plaintiff requested access to certain electronic records, alleging that the defendants withheld them.

In his motion, the plaintiff asserted that the defendants “never provided a ‘chronological e-mail history of any kind.’” In response, defense counsel “simply aver[red] that after plaintiff filed this motion to compel, he provided plaintiff with…‘the documents sought’ and, therefore, plaintiff’s motion is ‘moot.’” The plaintiff responded to the defendant’s reply, asserting that “‘virtually no electronic records [were] included’ in defendant’s discovery responses.”

Because the defense counsel’s response to the plaintiff’s motion was “terse,” New York Magistrate Judge Jonathan Feldman stated that it was “difficult . . . to determine whether defendants have in fact produced all relevant electronic records and e-mails as demanded by plaintiff.” Lacking in defense counsel’s response were “details regarding how and where electronically stored information (“ESI”) is held, what efforts were made to preserve relevant ESI, and the method used by defendants to locate, search and produce relevant ESI.”

As such, Judge Feldman “construe[d the defendants’] response as a claim that ESI, including e-mails, [were] not . . . produced because the data demanded [was] destroyed or [was] not ‘reasonably accessible’” pursuant to Rule 26(b)(2)(B) of the Federal Rules of Civil Procedure, which requires a producing party to “show that the information is not reasonably accessible because of undue burden or cost.”

Therefore, because the defendants had not sufficiently demonstrated that the ESI was not reasonably accessible, Judge Feldman ordered as follows:

“Defense counsel shall file an affidavit of a person with direct knowledge of DOCS’s document and e-mail retention system stating: (1) the document/e-mail retention policy used by DOCS currently and during the relevant time periods, (2) the dates of e-mails “reasonably accessible” for production in this litigation, (3) the back up or legacy system, if any, used by DOCS to preserve or archive e-mails that are no longer “reasonably accessible” and whether responsive documents or data may potentially be found on such back up or legacy systems, (4) whether accessing archived or back up e-mails would be unduly burdensome or costly and why, and (5) the date when a litigation hold or document preservation notice was put in place by DOCS regarding this matter and either a copy of or a description of the preservation or litigation hold utilized by DOCS.” [emphasis added]

Judge Feldman ordered the defense to provide this affidavit within 30 days.

So, what do you think? Was this an appropriate ruling given the situation? Or did the defendant deserve sanctions? Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required). For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant Ordered to Retain Outside Vendor, Monetary Sanction Awarded – eDiscovery Case Law

November 5, 2012

In Carrillo v. Schneider Logistics, Inc. (C.D. Cal. Oct. 5, 2012), California Magistrate Judge David Bristow ordered the defendant to “retain, at its expense, an outside vendor, to be jointly selected by the parties, to collect electronically stored information and email correspondence”. The defendant was ordered to produce all surveillance videotapes responsive to plaintiffs’ discovery requests and monetary sanctions were awarded for plaintiff’s attorney fees and costs incurred as a result of the defendant’s discovery violations.

Sequence of Events of Defendant’s Discovery Failures

In this class action wage and hour case against the defendants (a Wal-Mart provider), the plaintiffs filed a Motion to Compel responses to the first set of requests for production of documents. Here’s a sequence of events that led to the filing of the motion (all dates in 2012):

On February 1, plaintiffs propounded their First Set of Requests for Production of Documents to the defendant;
The defendant provided its initial responses on March 12 and supplemental responses on April 4;
The plaintiffs, believing that the defendant’s document production was incomplete, began a series of meet and confers with the defendant, and expressed concern that the defendant had not produced all responsive non-privileged documents;
On May 31, the plaintiffs filed a Motion to Compel regarding the defendant’s failure to produce documents relating to Wal-Mart and their alleged failure to conduct a proper search and produce responsive documents;
After the Court ordered the parties to further meet and confer, the parties resolved their dispute and submitted a proposed order, which resulted in the Court ordering the defendant to supplement its responses to the requests for production of documents and produce responsive documents, including those relating to Wal-Mart. The defendant was also ordered to produce a custodian of records and person most knowledgeable regarding Schneider’s document retention policies;
Following the Court’s Order, the defendant produced an additional 23,000 documents, many of which related to categories of documents the defendant previously claimed did not exist;
The defendant also designated two employees to address the defendant’s retention policies and its efforts to search for responsive documents. When these witnesses appeared for their depositions, however, they were unable to answer many basic questions regarding the defendant’s document retention policies and the defendant’s search for responsive documents;
On July 10, the plaintiffs deposed an area manager for the defendant who testified that she had deleted various emails, including reports, continued to delete documents up to the date of her deposition, and that she had never received an instruction advising her not to delete such emails;

This led the plaintiffs to file their Motion to Compel on August 23, as they identified a “substantial number of emails and surveillance videotapes which had not been produced”.

Judge Bristow’s Ruling

Noting that the “record reflects – at best – a haphazard search for records”, Judge Bristow stated that the defendant had “disregarded its obligation to conduct a reasonably diligent search for responsive documents, including, as explained below, electronically stored information.” Noting that at least 20 employees of the defendant regularly used “@wal-mart.com” email accounts for conducting business, the judge also noted that the defendant had still not produced any emails from those accounts and discounted the defendant’s contention that it had “no control” over those documents since the defendant’s employees used the Wal-Mart email address as their primary work email account. The judge also ruled that the defendant had withheld surveillance videotapes and that it had not taken adequate steps to preserve documents.

As a result, the defendant was ordered to retain an outside vendor to collect ESI and email correspondence within 45 days and produce all responsive videotapes within 10 days. The plaintiff was given 11 days to file a brief detailing their claim for attorneys’ fees and costs, with the defendant having two weeks to respond regarding the reasonableness of the stated costs. Judge Bristow did deny the plaintiff’s request for other sanctions without prejudice as “premature”.

So, what do you think? Have you seen other cases where parties were ordered to retain an outside vendor? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Another Social Media Discovery Request Ruled Overbroad – eDiscovery Case Law

November 2, 2012

As was the case in Mailhoit v. Home Depot previously, Ohio Magistrate Judge Mark R. Abel ruled in Howell v. The Buckeye Ranch, Case No. 2:11-cv-1014 (S. D. Ohio Oct. 1, 2012) that the defendant’s request (to compel the plaintiff to provide her user names and passwords for each of the social media sites she uses) was overbroad.

Background on Defendant’s Request

In this employment discrimination action where the plaintiff alleged that male supervisors, senior youth leaders, and coworkers sexually harassed her, the defendant filed a Motion to Compel in August to compel the plaintiff to give them her user names and passwords for each of the social media sites she uses. The defendant contended that information on the plaintiff’s social media sites “may be relevant to (1) whether the alleged sexual acts occurred and (2) her present emotional state”, indicating their belief that the plaintiff “is not currently impaired by serious emotional distress and is enjoying life”.

The plaintiff contended that the defendant’s discovery request was “overbroad and unduly burdensome” and that the defendant had “offered no evidence or other reason to back up” their speculation that there might be relevant information in the private sections of her social media sites. The defendant countered that the plaintiff testified as to several impacts of the alleged sexual harassment and that she cannot regularly update her Facebook account, yet her Facebook public pages contained evidence that the plaintiff still regularly updates her account.

Judge Abel’s Ruling

Judge Abel acknowledged that “[r]elevant information in the private section of a social media account is discoverable”, but that “a litigant has no right to serve overbroad discovery requests that seek irrelevant information”. Comparing the request of electronic social media data to that of hard copy documents, Judge Abel stated:

“The fact that the information defendants seek is in an electronic file as opposed to a file cabinet does not give them the right to rummage through the entire file. The same rules that govern the discovery of information in hard copy documents apply to electronic files. Defendants are free to serve interrogatories and document requests that seek information from the accounts that is relevant to the claims and defenses in this lawsuit. Plaintiff’s counsel can then access the private sections of Howell’s social media accounts and provide the information and documents responsive to the discovery requests.”

Judge Abel did note that the plaintiff “remains under an obligation to preserve all the information” in her social media accounts, so the defendants would presumably be able to access that information through requests for specific relevant information.

So, what do you think? How does this case compare to other cases (such as these three cases) where user names and passwords to social media sites were granted? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Government Document Productions Can Be Like Water Torture – eDiscovery Case Law

October 23, 2012

In Botell v. United States, 2012 U.S. Dist. (E.D. Cal. Sept. 18, 2012), Magistrate Judge Gregory Hollows noted that the US Government’s “document production performance in these proceedings has been akin to a drop-by-drop water torture” and ordered a preclusion order prohibiting the US Government “from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced” as of the date of the order. The US was also still required to produce the documents, whether they planned to use them or not. Judge Hollows also noted that the “Plaintiff has not waived any motion to seek further sanctions regarding non-production of documents, or spoliation of documents.”

In this wrongful death and personal injury action at Lassen Volcanic National Park when a mortared rock wall gave way killing one child and injuring another, the US Government produced over 7,000 pages of documents, yet, it was noted that “there is a glaring lack of production of emails from defendant’s agents and employees” with emails having only been produced from one custodian. As five other custodians were referenced in the produced emails, the plaintiffs contended that emails should have been produced from them as well. With regard to the back up of emails, one of the defendant declarations described the backup policy as follows: “[b]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.”

Judge Hollows ordered the defendants to provide a declaration describing “searches conducted to locate physical and electronic copies of emails” responsive to production requests, noting the declaration “shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.”

Summarizing the production issue in his order, Judge Hollows noted as follows:

“At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents.”

As a result, Judge Hollows issued the preclusion order, with the possibility of more sanctions to come.

So, what do you think? Was the ruling harsh enough? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

No Bates Numbers in a Native Production? Get Over It! – eDiscovery Best Practices

October 22, 2012

Last week, we discussed the benefits of requesting document productions in native format, including the ability to use Early Data Assessment/FirstPass Review applications to analyze your opponents produced data and metadata, using capabilities like email analytics and message thread analysis (where missing emails in threads can be identified), synonym searching, fuzzy searching and domain categorization. If you don’t understand the benefits of receiving the underlying metadata, try reviewing an image of an Excel spreadsheet and see if you can understand how the numbers were calculated without the underlying formulas. Not so easy, is it?

However, one objection that attorneys provide against producing documents in native format is that they’re not conducive to Bates labeling. Some native file types, such as Excel files, are not stored in a typical paginated, document-oriented format, so it is difficult or even impossible determine the number of pages for each file. Other file types vary the number of pages and placement of text on pages based on the document styles applied. For example, Word uses document styles based on the fonts installed on the workstation to display the content of the Word document; however, if the chosen font is not available when the document is viewed on another workstation, Word will substitute with another font and style that can change the formatting and even which page content appears. Since attorneys are so used to having a Bates stamp on each page of a document, many are still known to produce (and request production) in an image format, adding costs unnecessarily. Would those same attorneys print out every email in their Inbox before reading them?

However, most courts today accept a file-level “Bates” or Unique Production Identifier (UPI) where each file is named with a prefix and a sequential number. These numbers look just like Bates numbers, except they’re not stamped in the file itself; instead, they are used as the file name. These productions are usually accompanied by a data file, containing metadata for loading into a review tool, which includes the original file name and path of each file being produced.

So, how do you get around the issue of referencing individual page numbers for presentation at deposition or trial? Those files can still be converted to image (or printed) and a number applied for presentation. It’s common to simply use the Bates number as the prefix, followed by a sequential number, so page 6 of the 45th file in the production could be stamped like this: PROD000045-00006. This enables you to tie back to the production, yet only convert to image those files that need to be presented.

So, what do you think? How do you handle production numbering in native productions? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Avoiding the Redaction “Epic Fail” – eDiscovery Best Practices

October 19, 2012

On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or privileged information. All you need to do is draw a black box over the affected text, right? Not so fast, my friend. There’s a lot more to consider in order to ensure that you don’t inadvertently produce information that was intended to be redacted. Here are a few redaction “epic fails” and how to avoid them.

Failure to “Burn” the Redaction into the Image

If the redaction isn’t “burned” into the image so that it cannot be removed, the redacted data can still be viewed (as these unfortunate folks found out). Especially when your images are Adobe Acrobat PDF files, the most common mistake is to redact by obscuring the text by drawing a black box over the text or images you want redacted. A simple “cut and paste” can remove the black box, revealing the redacted text. Acrobat provides a redaction tool (for those editing the PDF there) to properly apply a redaction – it’s best to save the file to a new name after the redaction has been applied.

If you’re using a review application to manage the review, the application should ensure a “burned in” redaction for anything exported or printed, regardless of whether it lets you look at the redacted data within the application itself. For example, CloudNine Discovery’s review application, OnDemand®, provides a tool to enable the reviewer to draw a gray box over the text to be redacted so that text can still be viewed within the application. However, if the file is exported or printed, that box gets “burned” in as a black box to completely obscure the redacted text.

Failing to Update Corresponding Text Files to Remove Redacted Text

Even if the image is handled properly, you can still disclose redacted text if you don’t make sure that the corresponding text file, whether extracted from the native file or generated via Optical Character Recognition (OCR), isn’t updated to remove the redacted text. If you don’t update the corresponding text files, you’re allowing redacted text to slip through the production “back door”. This happens more often than you might think.

Producing Un-Redacted Native Files

If you’re producing native files, you’ve hopefully discussed with opposing counsel how to handle native files that require redaction. Typically, the approach is to convert those to an image format and redact the image. Sometimes the parties agree to “redact” the native files themselves and produce those. If so, as is the case with Adobe PDF files, there’s a right way and wrong way to redact native files. Changing the text to white or the background to match the text color is not the same as redacting the text. All you have to do is to revert back to the original formatting or simply highlight the affected area to see the redacted text. Instead, you’ll want to agree on a procedure where the text is deleted or replaced with an equal amount of meaningless content (e.g., all “X”s) to preserve text flow and pagination (make sure track changes is off before redacting). You may even want to agree to copy the entire content of a redacted document to a new file (to remove residual document composition information that might remain). To see what I “redacted” up above, highlight it with your cursor. 🙂

Failing to Redact Metadata

You may redact content on the document that you produce separately as metadata, via a load or data file. Failing to check the produced metadata for redacted documents could enable redacted data to slip through. So, don’t forget to check and remove any sensitive data here, as well.

Quality Control (QC) Check before Producing

Generally, when producing documents with redactions, you should have a checklist that ensures that image redactions are “burned” in, that redacted native files (if produced natively) are properly redacted, and that corresponding text files and metadata have been checked to ensure that redacted data has been removed from those as well. Otherwise, your production of redacted materials can wind up as an “epic fail”.

So, what do you think? How do you handle redactions within your productions? Do you have a process to QC check redactions before producing? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Production

Percentage of eDiscovery Sanctions Cases Declining – eDiscovery Trends

More Self-Documentation Features for Review Solutions – eDiscovery Best Practices

Defendant Compelled to Produce Additional Discovery to Plaintiff – eDiscovery Case Law

Louisiana Order Dictates That the Parties Cooperate on Technology Assisted Review – eDiscovery Case Law

Defendant Claiming Not Reasonably Accessible Data Has Some ‘Splaining To Do – eDiscovery Case Law

Defendant Ordered to Retain Outside Vendor, Monetary Sanction Awarded – eDiscovery Case Law

Another Social Media Discovery Request Ruled Overbroad – eDiscovery Case Law

Government Document Productions Can Be Like Water Torture – eDiscovery Case Law

No Bates Numbers in a Native Production? Get Over It! – eDiscovery Best Practices

Avoiding the Redaction “Epic Fail” – eDiscovery Best Practices

Status: Updated