In a brief order issued last week, Judge Andrews denied a plaintiff's request that the defendant be ordered to re-produce tens of thousands of redacted documents from its production in unredacted form. According to the order, the defendant had produced 24000+ documents with redactions. The parties had agreed, via the protective order, that confidential information irrelevant to the case at hand or information not otherwise discoverable could be redacted.
Nonetheless, plaintiff argued that the defendant's "voluntary production of the fully-redacted documents inherently admits that they contain responsive material … Something underneath these full-document redactions must be responsive, or [defendant] would not have produced the documents."
In reliance on a sworn declaration from defendant's attorney and his own review of a sampling of the redacted documents, Judge Andrews concluded that there was no basis on which to find the redactions were inappropriate:
After reviewing the unredacted version of Plaintiffs’ Exhibit A, I have concluded that [defendant's] justifications for its redactions to Exhibit A – that the first document pertained to a different product and that the second document and the redacted portions of the third document are covered by the work product doctrine and attorney-client privilege – are sound. [Plaintiff] has given me no reason to doubt that a review of the remaining redacted documents would produce similar results and no reason to question the trustworthiness of Mr. Barry’s sworn declaration.
Notably, defendant's counsel Mr. Barry stated in his declaration that he had "personally reviewed" all of the redacted documents and had identified 39 that were erroneously redacted. It appears that the declaration went some way to reassuring Judge Andrews that the redactions were not overdone.
While redaction of documents to remove non-responsive or privileged information is not uncommon, it is always a good idea to have multiple levels of review to ensure that responsive, relevant, and non-privileged information is not being withheld (and certainly a good idea to do so before the Court has a chance to do its own review).
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