In Magistrate Judge Lara Eshkenazi's opinion Monday in Mercante v. Tarzia (E.D.N.Y.), defendant's counsel (Coleman) filed an exhibit containing "wire transfer instructions to [plaintiff's counsel's] firm's bank account":
asserted
counsel → file → account
Exhibit F purports to be redacted, and a white box with the word "REDACTED" covers the bank account information.
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box → purport → information
The exhibit cover page also states that the bank account information is redacted.
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information → state → ?
However, Mr. Coleman failed to adequately redact and remove the sensitive financial information, as the text is accessible by copying and pasting, or by clicking and moving the white box covering the text.
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text → fail → text
The court concluded that this didn't qualify as contempt of court (based on of its failure to comply with a protective order, "which prohibits materials marked 'confidential' from being filed on the public docket"):
While the mistake reflects some carelessness on Defense counsel's part, his initial attempt to redact the information and immediate acceptance of responsibility for his error leads this Court to conclude that Plaintiff has not carried her burden of demonstrating by clear and convincing evidence that Defense counsel was not reasonably diligent in attempting to comply with the Protective Order.
But the court granted sanctions against defense counsel, in the form of having to pay expenses for "data breach mitigation" services:
As a result of Defense counsel's improperly redacted filing, the bank account information of Plaintiff's counsel's law firm was posted publicly and circulated online by a nonparty.
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information → conclude → nonparty
Plaintiff's counsel had to address the emergency over the weekend and incurred costs to mitigate the potential risks of public disclosure of sensitive financial information….
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counsel → have → information
Rule 37(b)(2)(c) provides that the Court must order the sanctioned party to "pay the reasonable expenses, including attorney's fees, caused by the failure" to comply with a court order….
[T]he Court awards Plaintiff reasonable expenses in the amount of $2,316.00 (15.44 hours x $150).
Here's some advice I've offered in the past as to redaction:
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I → provide → redaction
I have often run across documents written by lawyers that looked redacted—but all the supposedly secret information in them could be extracted with literally three keystrokes (ctrl-A, ctrl-C, ctrl-V).
uncertain
information → run → keystrokes
One was a court filing that was filed pursuant to a court order authorizing the redaction; but the material so carefully marked secret proved not to be secret at all.
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material → file → redaction
Another carefully tried to hide the real name of a litigant whom the lawyer was trying to keep pseudonymous; but the name was one copy-and-paste away from being visible.
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name → try → whom
What's more, when the documents were posted online in searchable spaces, search engines indexed the supposedly hidden material, so searching for the real name would find the document in which the lawyer had been trying to redact the name.
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lawyer → post → name
For at least one of the documents, I know what improper redaction mechanism was used: The lawyer used Google Docs to highlight passages using black highlighter, and then saved the document as a PDF.
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lawyer → know → PDF
That looked blacked out on the screen; but the underlying text still remained in the PDF document—as far as the software was concerned, the text wasn't removed but was just set in a different color.
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text → look → color
(Something similar would happen with Microsoft Word.)
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Something → happen → Word
By clicking ctrl-A in PDF, I selected the whole document.
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I → click → document
(You can also just select the passage that contains the redactions.)
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that → select → redactions
By clicking ctrl-C, I copied the selected text to the clipboard.
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I → click → clipboard
And then by clicking ctrl-V in another app, I pasted it with all the formatting, including the highlighting, removed.
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formatting → click → highlighting
(In some situations, it takes a ctrl-shift-V.)
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it → take → V.
Commenter anorlunda on an earlier post explained the problem well:
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anorlunda → explain → problem
Users are trained WYSIWYG.
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Users → train → WYSIWYG
What you see is what you get.
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you → see → what
That's brilliant marketing, but when you make black text on a black background, what you see is nothing, but what you get is something else
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get → make → what
So redaction contradicts our training.
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redaction → contradict → training
To the best of my knowledge, Adobe Acrobat Pro redaction actually deletes the underlying text, if you mark the text for redaction and then apply the redactions.
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you → delete → redactions
I'm sure there is other software available to do this, including free software.
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I → be → software
Just make sure that whatever you do, the redaction is actually complete.
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redaction → make → whatever
The Aporia