E-Discovery Tip Sheet

Transcription

1 E-Discovery Tip Sheet Redaction Exposed When we talk about reserving material from document production, we generally think about two main strategies: 1. withholding documents under a claim of privilege, or 2. redacting specific portions of produced documents. Volumes can and have been written about privilege claims, privilege logs, and clawbacks of inadvertently-produced privileged material. In the past year alone, we have seen Samsung chastised for posting Apple secrets to its employees, and Magistrate Judge Andrew Peck lecturing all who would listen that the absence of a 502(d) Order (specifying return of inadvertently produced privileged material) under the Federal Rules of Evidence should be grounds for legal malpractice. Let us confine our discussion today to redactions. What are we talking about when we talk about redaction? Let s first turn back to the days of photocopies of black-marked photocopies. Redactions obliterate a privileged or otherwise sensitive portion of a document so that it may be produced at least in part. Sometimes, in very small part: George W. Bush s military service record, for example, revealed little more than his name and a visit to the dentist. As long as the information was on paper, or exportable to paper, markers, scissors and tape ruled. The mechanics of redaction only started to change when the focus of discovery shifted to electromagnetic bits. Back in the early-to-mid aughts, electronic documents became the principal subjects of interest as digital document creation and storage was acknowledged to be more prevalent than paper document creation. E-Discovery, the

2 June 2015 E-Discovery Tip Sheet Page 2 collection, review and production of electronic mail and computer-generated documents, was the focus of study (e.g., The Sedona Conference), decisions (e.g., Zubulake v. Warburg and its sequels) and law (the December 2006 amendments to the Federal Rules of Civil Procedure). It came to pass that one had to redact electronic documents. And it was likewise true that one could not do so, at least without denaturing the original document. If one deleted text from a Word document (most preferably a copy), the metadata and the shape of the document changed, so arguably it was not the same document, but an adulterated version. Obscuring text also involved adulterating the document, with the bonus of being ineffective: a search, or a font color change, or a manipulation of an overlaid graphic would still turn up the text. Enter Adobe Adobe s Portable Document Format (PDF) seemed to be the ideal solution to the problem of producing redacted documents. As a digital print medium, the PDF file could be seen as an a print-out where metadata could be elided and text obscured. The difference between obscuring and redacting text became apparent when deleted material prepared by Merck & Co. in 2005 for publication was found in the document s metadata, accidentally disclosing information which linked Vioxx to an increased risk of heart disease. <1> Adobe addressed the issue in a 2006 technical note <2> which cautioned that [p]roblems can arise when editors use an improper method such as trying to obscure information rather than deleting it, or if they are unaware of sensitive metadata in a document. The paper goes on to recommend using the third-party Redax tool from Appligent (which is still offered by Appligent Document Solutions); otherwise, every effort should be made to redact in the authoring application before converting to PDF. The technique described involves: copying a document, in the copy, deleting the redactable content (or replacing it with XXXX characters or a blank graphic to maintain the document s spacing), creating a new blank document,

3 June 2015 E-Discovery Tip Sheet Page 3 copying the content of the marked up copy and pasting it into the new blank document, setting the PDF conversion parameters (if the Adobe plug-in is present) to confirm that Convert document information and Attach source file to Adobe PDF are turned off, and saving the new document. If redacting a PDF document directly, Adobe in this paper recommends doing black markups, exporting the page images to TIFF (tagged image file format), then building a fresh, image-only PDF from the TIFFs. Apparently, the Transportation Security Administration (TSA) did not get the memo. In December 2009, a TSA contract employee posted a PDF format redacted security manual to a publicly-available Federal procurements website. [See footnote <1>] The text of the redacted content in the manual magically appeared when the black boxes were selected, copied, and pasted into Notepad. A betanews commentary published following the debacle <3> noted that Adobe had long since released Acrobat Professional 8, its first release to include true built-in redaction. The included Mark for Redaction / Apply Redactions tool passed the publication s tests with flying colors. Now redaction, with selection of text and scrubbing of underlying content, is a standard feature of Acrobat Professional, Nuance PDF Converter, and a host of other tools. Redaction in Review Document review software has long addressed redaction of images (and more recently, near-native views) of documents during review. Summation redacted; Opticon / Concordance Image redacted, allowed redactions to be toggled and text selected. These days translucent redaction, which renders the redacted text visible while still under review until the production burn-in, is often a default view. Redaction in review software remained a pretty manual process: instead of a black marker, you had a pointer-applied tool, but it remained that every redaction required individual judgment and application. More vexingly, while data have grown more portable, redactions have not. XML should allow the specification of redaction coordinates for each document and each page, but EDRM XML transfer has yet to sweep away de facto standards such as

4 June 2015 E-Discovery Tip Sheet Page 4 Concordance DAT or OPT or IPRO LFP formats. Converting Summation iblaze data means leaving behind all those.ann files in the markup folder; at least you have the Bates numbers of the affected pages. Concordance provides the Redlines database for generating a report and parameters. That is not the same as seeing your REDACTED box in the same place on the same page without further intervention. One other wrinkle is the handling of extracted or OCR text for a redacted document. Early applications were not cognizant of a redaction in which case the text could be inadvertently produced; later applications might acknowledge the redaction by suppressing all text or native production for that document. In either case, an extra OCR step for redacted document images is required, whether handled by your principal review application or not. Be sure you know how your application handles redactions before you send out your first production. Redaction: The Next Generation While, as noted, redaction requires eyeballs, some parts of the process which lend themselves to programming rules have surfaced in various applications. Some features to look for: Auto-redaction This is the ability to find and auto-redact identifiable strings of text, such as Social Security numbers, credit card numbers, telephone numbers or business tax ID numbers. It uses a standard coding system, called regular expressions, which allows users to build masks of general or specific numbers, uppercase or lowercase characters, and other type objects, to identify instances of the item sought. Those are then redacted automatically under the rule set. Repetitive redaction If a document has several consecutive pages which are to be redacted in their entirety, some systems will allow the coordinates to be defined and set to repeat. Negative redaction Sometimes the bulk of the content needs to be secured, but a few tidbits may be exposed (see the Bush example above). Some review tools allow the exposed spaces to be defined in each page, with the remainder defaulting to redacted. As with public scandals, it is less the fact than the concealment that can complicate matters and trip up the unwary. Know your objectives, know your

5 June 2015 E-Discovery Tip Sheet Page 5 software, be vigilant, and verify that you are, like a good fashion designer, in firm control of what is to be concealed and what is to be exposed. REFERENCES: <1> COMPUTERWORLD -- TSA Gaffe Shows Pitfalls of Redaction by Jaikumar Vijayan [Jan 4, 2010] ( <2> Redaction of Confidential Information in Electronic Documents [Adobe Technical Note ] ( <3> betanews The PDF redaction problem: TSA may have been using old software by Scott M. Fulton, III [12/10/2009] ( -- Andy Kass [email protected] The views expressed in this E-Discovery Tip Sheet are solely the views of the author, and do not necessarily represent the opinion of U.S. Legal Support, Inc. U.S. LEGAL SUPPORT, INC. ESI & Litigation Services PROVIDING EXPERT SOLUTIONS FROM DISCOVERY TO VERDICT e-discovery Document Collection & Review Litigation Management Litigation Software Training Meet & Confer Advice Court Reporting Services At Trial Electronic Evidence Presentation Trial Consulting Demonstrative Graphics Courtroom & War Room Equipment Deposition & Case Management Services Record Retrieval Copyright 2015 U.S. Legal Support, Inc., 90 Broad Street, New York NY (800) All rights reserved. To update your address or unsubscribe from these mailings, please reply to this with CANCEL in the subject line.