Today, redactions are more important than ever. Given the massive amounts of data involved in discovery, it is imperative to protect sensitive information from unnecessary disclosure.
There have always been rules on when redactions are necessary. No one wants Social Security Numbers flying around for all to see. But now, it’s common for discoverable materials to contain all kinds of personal identifying information (PII) you want to keep private either to protect your company or consumers.
Redaction offers you security beyond a protection order. No one can leak information they don’t have. No one can steal it either. When you redact information, either by choice or obligation, a redaction log provides a clear record and explanation for your choices, which might be necessary for court.
A redaction log is a record that tracks blacked out or abbreviated information in relevant materials turned over during discovery. It might include the document name or number, the page/paragraph location, the type of information redacted, and a brief reason for the redaction.
At least two circumstances give rise to redaction logs. The first is necessary, and the second is discretionary.
Federal and state rules of procedure require redacting certain information for privacy. Rule 5.2 of the Federal Rules of Civil Procedure dictates privacy protections for public filings in federal courts. Information that must be redacted includes:
The court also might require or allow redaction of other identifying or sensitive information, like alien registration or driver’s license numbers.
The federal rule says you may file a reference list identifying redacted information along with redacted materials. You must file the list under seal.
There may be similar requirements in state courts. For example, under California Rules of Court, Rule 1.201, you must redact personal information from documents you publicly file with the court. You may file a Confidential Reference List of Identifiers, Form MC-120.
The second reason for a redaction log is when you want to protect sensitive yet irrelevant information. You can either reach an agreement with the other parties regarding redactions or make the unilateral decision to hide certain irrelevant information.
There’s somewhat of a false parallel between privilege and redaction logs. Both are reports describing what you hold back during discovery. But they serve two distinct purposes.
A privilege log tracks relevant documents you withhold due to privilege. The log is necessary to explicitly invoke your right to retain privileged information and inform the other party they aren’t receiving documents relevant to the dispute. Without a log, the recipient wouldn’t know what they’re missing.
A redaction log tracks information that is irrelevant to the legal matter. You aren’t censoring the information because of privilege; you’re hiding it based on privacy and protection. The irrelevant information could harm your company (or your clients, vendors, customers, or consumers) if exposed. A log isn’t essential in the sense that the recipient knows when a document includes redactions. It’s useful, nonetheless.
Depending on the tool you are using for discovery and redactions, compiling a redaction log could be incredibly tedious—or extremely simple. If redactions are applied manually in a tool such as Adobe Acrobat, or in a discovery platform that does not allow for redaction reports, creating a redaction log can take hours of painstaking documentation.
The best eDiscovery platforms will automate both privilege and redaction log creation.
In Logikcull, for example, you can create a redaction log in just a few clicks. When a document is redacted, Logikcull automatically applies a “has redactions” tag. Users can then create a CSV export with select metadata, including a full list of documents having redactions and, if a redaction label is applied, the reason for those redactions.
Total time to create: just a few seconds.
Best practices call for considering discretionary redactions from the very beginning. At the onset of discovery, you can discuss redactions with the other parties. You’ll reach an agreement or get the court’s input. Either way, you can move forward with your redactions confidently.
Deciding what to redact or hold back as privileged should be the hard part—not documenting your decisions. Your team needs an efficient and accurate process for creating a privilege log, redaction log, or both. You’re all too aware that modern discovery often includes millions of documents, which might require tens of thousands of redactions of PII and other sensitive information. A user-friendly, automated process to log those redactions saves your team time and energy.