In the Monday ruling issued by Magistrate Judge Lara Eshkenazi in Mercante v. Tarzia (E.D.N.Y.), the defendant’s attorney (Coleman) submitted an exhibit that allegedly contained wire-transfer instructions to the bank account of the plaintiff’s firm:
Exhibit F is described as redacted, and a white box labeled “REDACTED” sits over the bank details. The cover page also asserts that the bank information is redacted. Yet Mr. Coleman did not sufficiently redact or remove the sensitive financial data, since the text remains accessible by copying and pasting, or by selecting and moving the white box that covers it.
The court determined that this instance did not rise to contempt of court, which would stem from violating a protective order that forbids materials marked confidential from being filed on the public docket:
While the mistake shows some carelessness on defense counsel’s part, his initial attempt to redact the information and his prompt acceptance of responsibility for the error cause this Court to find that the plaintiff has not met her burden to prove, by clear and convincing evidence, that counsel was not reasonably diligent in attempting to comply with the Protective Order.
Nevertheless, sanctions were imposed on the defense counsel, requiring him to cover expenses for data-breach mitigation services:
As a consequence of the defense counsel’s improperly redacted filing, the bank account details of the plaintiff’s counsel’s law firm were exposed publicly and circulated online by a nonparty. The plaintiff’s counsel had to address the emergency over the weekend and incurred costs to lessen the risks of disclosing sensitive financial information to the public… Rule 37(b)(2)(c) authorizes the court to order the sanctioned party to “pay the reasonable expenses, including attorneys’ fees, caused by the failure” to comply with a court order….
[The] Court awards the plaintiff reasonable expenses totaling $2,316.00 (15.44 hours x $150).
Here’s some guidance I’ve offered before on redaction:
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I have repeatedly encountered documents drafted by attorneys that appear to be redacted, yet the supposedly confidential material could be retrieved with three keystrokes (Ctrl-A, Ctrl-C, Ctrl-V). One instance involved a court filing submitted under a redaction order; yet the material marked as secret turned out not to be truly secret at all.
Another case attempted to conceal the real name of a party, yet the name was only one copy-paste away from visibility. Moreover, when these documents were posted online in searchable spaces, search engines indexed the supposedly hidden material, so searching for the actual name would locate the document in which the attorney had tried to redact it.
For at least one document, I know which improper redaction method was used: the attorney used Google Docs to highlight passages with black highlighting, then saved the document as a PDF. It appeared blacked out on the screen; but the underlying text stayed in the PDF—as far as the software was concerned, the text wasn’t removed but merely colored differently. (A similar issue could occur with Microsoft Word.)
By pressing Ctrl-A in the PDF, I could select the entire document. (You can also select just the passage containing the redactions.) By pressing Ctrl-C, I copied the selected text to the clipboard, and then by pressing Ctrl-V in another program, I pasted it with all the formatting, including the highlighting, removed. (Sometimes a Ctrl-Shift-V is required.) The text then became fully visible. A commenter named anorlunda on an earlier post explained the problem well:
Users are trained WYSIWYG. What you see is what you get. That’s brilliant marketing, but when you place black text on a black background, what you see is nothing, while what you get is something else. So redaction contradicts our training.
To the best of my knowledge, Adobe Acrobat Pro redaction actually deletes the underlying text if you mark it for redaction and then apply the redactions. I’m sure there are other software options available for this purpose, including free tools. The key is to ensure that whatever you do, the redaction is genuinely complete.
