I Witness. The Consequences of Documents That Are Incorrectly [Redacted]

• Author: Andrea L. D'Ambra, Susana Medeiros
• Pages: 15-16

15VOL 46 | NO 3 | SPRI NG 2020

iWitness

ANDREA L. D’AMBRA AND SUSANA MEDEIROS

The authors are with Norton Rose Fulbright US LLP.

Last year, lawyers for former Trump advi-

sor Paul Manafort inadvertently published

information about their client’s meetings

with Konstantin Kilimnik, a Ukrainian

man the Federal Bureau of Investigation

believes may be a member of a Russian

intelligence agency unit connected with

the hacking of the Democratic National

Committee’s email server. They meant

to redact these passages, but they didn’t

do so properly before filing. A tech-savvy

reporter from the Guardian caught the

error, and the lawyers and their client

made the news. In another case, this one

between Facebook and a bikini-photo app

called Six4Three, the Wall Street Journal

caught defective redactions that revealed

that Facebook had at one time considered

selling access to users’ data for as much

as $250,000 per company.

And even more recently, a law firm

inadvertently failed to redact testimony

protected by grand jury secrecy rules.

In United States v. Indivior Inc., No.

1:19-cr-00016 (W.D. Va. 2019), the govern-

ment charged Indivior with engaging in an

illicit nationwide scheme to increase pre-

scriptions of Suboxone Film, a drug used

in the treatment of opioid addiction. The

law firm representing Indivior prepared

a filing alleging misconduct during grand

jury proceedings. The publicly filed ver-

sion of the brief even said it was “redacted

in order to protect certain grand jury ma-

terial.” And although the memorandum

appeared to redact the grand jury material,

it didn’t actually do so, which allowed a

reporter to write an (unflattering) story

about the whole affair.

Magistrate Judge Pamela Meade

Sargent ordered Indivior’s attorneys to

explain “why counsel should not be sanc-

tioned for this error and explain[] what

steps counsel have taken to ensure this

error will not be repeated.” The lawyers

took full responsibility for the improp-

erly applied redactions, explaining that

although black-box redactions appeared

over certain text in the brief (making it

impossible to see the text), a reporter was

able to copy and paste the hidden text un-

derlying the redactions due to a “techni-

cal weakness... caused by the method

of redaction.” Specifically, the error was

the result of applying the redactions in

Microsoft Word and printing to Adobe

Acrobat, “rather than [using] redaction

software our law firm has in place that

is specifically designed to avoid such is-

sues.” Id.

Redaction Rules of Civil

Procedure

Proper application of redactions in public

filings may be essential to protect confi-

dential or sensitive client information. But

in many other circumstances, counsel are

also required to redact personally identifi-

able information in court filings to com-

ply with federal and state redaction rules

governing individual privacy. Federal Rule

of Civil Procedure 5.2 and Federal Rule

of Criminal Procedure 49.1 require that

much personal information—including

Social Security numbers, taxpayer identi-

fication numbers, financial account num-

bers, and home addresses—be redacted

in full or in part before filing. Similarly,

many state courts have analogous redac-

tion rules that also protect the filing of

certain categories of individual informa-

tion on the public docket.

And when attorneys violate these re-

daction requirements, courts have im-

posed sanctions. See, e.g., Reed v. AMCO

Ins. Co., 2012 U.S. Dist. LEXIS 32446 (D.

Nev. 2012) (imposing sanctions of rea-

sonable attorney fees for failure to re-

dact privileged information filed on the

Electronic Case Files system); Weakley

v. Redline Recovery Servs., LLC, 2011 U.S.

Dist. LEXIS 42750 (S.D. Cal. 2011) (impos-

ing a sanction of $900 to pay for five years

of credit monitoring, where the defen-

dant’s counsel filed the plaintiff’s Social

Security number in violation of Federal

Rule of Civil Procedure 5.2).

THE CONSEQUENCES OF

DOCUMENTS THAT ARE

INCOR RECTLY

[REDACTED]