In my experience as an e-discovery project manager, I’ve found that one of the primary reasons for lengthy document reviews is the need to redact documents. While the extent to which redactions will be needed may not be known at the outset of a review, good project management should include recognizing when and what type of redactions may be needed. Factors to consider include the type of case, the extensive nature of the collection process, the type of files processed for review, the stipulations agreed to in the ESI protocol and protective order, the sophistication of the legal teams involved, the contentious nature of the dispute and, perhaps of equal importance, the technology available to apply those redactions.
Recently I managed a case with approximately 27,630 chat messages that needed to be redacted. Our review team ended up applying over 2 million individual redactions to these files. In the past these redactions may have been painstakingly applied one by one by a team of review attorneys. However, thanks to tools available today automating the redaction process, the redactions just took minutes to complete!
Redactions are typically made for privilege or confidentiality. In most cases, the protective order entered in the case guides the parties (and e-discovery team) in what types of confidential information should be redacted. Redactions often become the subject of contentious debate between parties as the reason for and extent of certain redactions can have far-reaching implications on available evidence and case strategy.
During document review, the potential categories of information to be redacted should be evaluated by both subject matter and review experts before the review starts and then those categories should be re-evaluated, and adjusted if necessary, throughout the review.
Determining what should be redacted and then making sure that information, and nothing more, is redacted, can be difficult. Making such a determination requires significant attention to detail and, ideally, layers of review. My colleague, Peter Jacobus, wrote a fantastic blog on redacting sensitive information, which you can find here.
Websites for courts and regulatory entities typically provide information describing how redaction should be submitted. Confidential agreements and ESI protocols also often contain specific information regarding what information can and should be redacted. The standard workflows used in document review include:
Every once in a while a case has issues with electronic redactions and information that should not be disclosed is inadvertently disclosed. As an initial matter, all cases should have a clawback or 502(d) agreement that allows for the return of such material. However, beyond the clawback, the risks of improper redacting can be mitigated with careful review and attention to QC. An electronic redaction on an image or a native file does not automatically become part of the original document, so care should be taken to make sure any documents exported or transferred maintain those redactions. Also, e-discovery software tools vary so the way the redactions exist within the systems varies as well. Transferring redactions from one Relativity database to another, for example, is typically seamless; however, transferring redactions from Relativity to another e-discovery tool may mean the redactions are not captured.