Today we have another report of a law firm making a technology blunder that appears to arguably violate a court order on what should be sealed and could adversely impact the client’s case. According to an article originally published in the Connecticut Law Tribute, pleadings from a class action lawsuit against GE that the court ordered sealed were improperly redacted before being filed. Apparently anyone can access the pleadings through PACER, copy the redacted material and reveal the "redacted" text by pasting into a Word document. This is a class action sex discrimination suit seeking a potential $500 million recovery. Hopefully by now, the offending documents have been removed and others substituted.
Whether it is improper redaction of documents or metadata disclosure issues, the simple fact is that lawyers have to understand the technology tools that they and their staff are using. Judges are learning new technology lessons due to e-filing and electronic discovery and they will be less inclined to forgive lawyers who make these kinds of errors in the future. Don’t try to do redaction without the proper tools, which means using Adobe Acrobat Professional 8 (not a prior version) if you are using Adobe to do it or one of the other redaction tools like the plug-in mentioned in the article.
Several months ago a lawyer called me expecting to be criticized, I think. They were working late on a deadline and became concerned about a few redactions they had to make. They ended up printing the documents, marking through the text with a black magic marker and then scanning/OCR’ing the marked document to create a new PDF. "I guess you think we were pretty dumb, huh?" He said. My response was that I thought they had all slept well that night, knowing that they had erred on the side of caution and were sure they hadn’t disclosed any information by accident.