originally published in The Lawyers Weekly
Despite recent high-profile redaction slips most law firms have failed to implement stringent policies, training and software to minimize the risk of redaction leaks.
For instance, recent headlines highlighted the February fiasco that embroiled leading social networking site Facebook.
Some background: Founders of student social networking site ConnectU sued Facebook, accusing creator Mark Zuckerberg of basing the popular networking website on ConnectU intellectual property.
Nearing a settlement and striving to keep terms confidential, Facebook representatives asked the judge to remove reporters from the courtroom while the two parties finalized the deal. The press received a redacted transcript that hid settlement details.
However, an Associated Press reporter copied text from an electronic version of the transcript and pasted that text into a blank document, thus learning the settlement amount and other closely-guarded information.
“The message must not be getting out yet,” says Christine Musil, director of marketing for Scottsdale, Ariz.-based content visualization, collaboration and redaction technology firm Informative Graphics Corp. “This is not the first headline.”
But even redaction-savvy organizations slip up. For instance, the U.S. federal government, already defending itself against allegations of what the Electronic Frontier Foundation calls “warrantless wiretapping,” came under further fire last year when a document attempted to justify the existence of an AT&T communications surveillance room.
The shot in the foot: Until AT&T’s attorneys released the document, with all mention of the room “redacted,” the EFF didn’t know about the room.
The irony: The surveillance room, an alleged collaboration between AT&T and the U.S. National Security Agency (NSA), would have remained unknown if AT&T lawyers had read the NSA’s paper on secure redaction.
In such cases, bad press and bruised reputations may be the least of a lawyer’s worries. Musil says that consequences can range from e-discovery slip-ups and loss of privilege to sanctions and disbarment.
The situation is particularly precarious since tech-savvy reporters, bloggers and opposing counsel, among others, regularly scan documents for ineffectively redacted information.
Musil muses that today’s problems may stem from the days of “redaction parties,” when legal teams armed with Sharpies marked up reams of paper. Simply marking text works on paper documents, although Musil says the process is paper- and labour-intensive. “It takes two or three copies to really get it black,” she explains.
But simple black marks on word-processing or PDF documents do not obliterate the text underneath. The marks serve as graphic layers above the text, but the text underneath still resides in the document. Copy a redacted paragraph from a PDF, for example, paste it into a simple text editor that does not handle graphics, and you’ll see if, in fact, the redacted text is still in the document.
Metadata, or information about the document, can also be a land mine. Any metadata on paper documents shows on the pages themselves. Not so with electronic documents, which can store tracked changes (right back to the original draft), author names, creation and modification dates and file names and paths, among other information.
Effectively redacting a digital document means:
- Creating a copy of the document so that the original document survives the redaction process.
- Ensuring the copy contains no metadata.
- Removing the redacted text from the document, not simply covering it.
Adobe Acrobat 9 contains proper redaction tools, even a handy search and redact feature (although these tools are hidden in submenus).
If your version of Acrobat does not include redaction tools, redaction software can cost less than an Acrobat upgrade and may offer a wider range of options. Redaction tools include Redact-It from Informative Graphics, RapidRedact from the eponymous New Zealand firm and I.D. Shield from Madison, Wis.-based Extract Systems, LLC.
To avoid headline-grabbing mistakes, Musil offers several redaction tips:
- Set a formal in-house redaction policy.
- When choosing redaction tools, see if they can easily support your redaction policy.
- Train staff on redaction policies and tools.
- Designate an in-house redaction expert to guide people who need to redact.
For a PDF of the original article, click redaction.