The "New New" Thing in Inadvertent Disclosure - Risk Managing Redaction

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There is much concern with metadata mining – the ability of recipients of e-documents, including e-mail, to view data hidden in these documents that is generated during the course of creating and editing them. This information, while usually of no significance, can contain confidential information and work product. If you are keeping up with e-document risk management, you know that care must be taken to avoid sending metadata in e-documents to avoid ethics and malpractice issues.

The latest variation on metadata risk management concerns computer procedures that permit viewers to see what is behind the black in redacted e-documents. Douglas S. Malan in his article Redacted documents become viewable on PACER (The National Law Journal, page S5, 6/9/2008) writes of an ongoing discrimination class action against GE. The plaintiff’s counsel redacted extensive portions of briefs filed on the PACER federal court filing system to make them inaccessible to the public. What happened next was someone discovered that the redacted language was readable by downloading documents from PACER, copying the redacting black bars covering text, and then pasting them to a Word document. Thus, sensitive information about GE’s personnel policies that were ordered sealed became a matter of public information.

Wright explains, “[R]edaction in the digital world requires special software and the know-how to delete the words behind the shield.” He advises that redaction mining is easier when older versions of Adobe are used. He cites the Connecticut Bar Association’s Legal Technology Committee for the advice that the newest version of Adobe simplifies redacting text and deleting the covered text.

The special software that Wright refers to is Redax, a product of Appligent Inc. Information on Appligent’s website indicates it should do the job. At this writing it costs $249 and requires an Adobe program that must be purchased. (Editor’s Note: We do not recommend products – just provide information to assist in your own evaluation of what may be useful.)

Lawyers who fail to effectively redact e-documents risk court sanctions, ethics violations, and malpractice claims. We recommend that you add redaction to your risk management program. If you need more information on metadata mining read the Bench & Bar article in the May 2008 issue The Impact of the Internet on a Lawyer’s Standard of Care and Professional Responsibility – Part I (available on Lawyers Mutual’s website -- go to the Bench & Bar page).

 


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