You may have noticed that the issue of redactions has been in the news lately. Of course, I’m referring to the recent release of the Mueller report, in which Mueller confirmed that [redacted], proving what members of the [redacted] party had been saying all along.
If you’ve seen the report, you know that large sections concerning Russian interference were redacted from public view. This got me thinking about redactions generally. While few attorneys work on matters with national-security concerns, clients often consider certain confidential documents to be of equal or greater importance. They insist, sometimes with good reason, that marking a document “confidential” is insufficient protection. Or they believe that, since the information is irrelevant to the case, it should be redacted regardless of how important it may be. So they ask that documents be redacted prior to their production. But may a party unilaterally redact information simply because it is confidential, sensitive, or irrelevant?
Generally, the answer is no. Most courts that have considered this issue, including the U.S. District Court for the District of Minnesota, hold that redaction is an inappropriate tool for excluding information from a document. These courts note that the Rules of Civil Procedure require parties to produce “documents” as they are maintained in the ordinary course of business; a party’s discovery obligation is not limited to only the relevant information in documents. Besides, redactions often strip the relevant information of their context, hindering the opposing party’s ability to use the information as a part of the case. As the court explained in Bartholomew v. Avalon Cap. Gp., Inc., 278 F.R.D. 441 (D. Minn. 2011), “[i]t is a rare document that contains only relevant information. And irrelevant information within a document that contains relevant information may be highly useful in providing context for the relevant information.”