Almost ten years ago, the talk of the legal media was Brown Rudnick's botched redaction. It appeared that, while preparing a complaint, Brown Rudnick lawyers tried to redact sensitive information by simply using the highlighting function in Word to cover the information with a black strip and then converting the document to PDF. As they soon found out, this process did not remove the sensitive information, and copying and pasting the redacted paragraphs into a new Word document would reveal the information. Brown Rudnick escaped serious sanctions--having only to pay attorney's fees--because it was implausible that the law firm would have revealed the sensitive information on purpose.
But here we are, ten years later, and legal practitioners--as well as courts--continue to get caught in the same trap. It happened again in high profile cases in 2011 (Apple v. Samsung), 2016 (CFPB v. Prime Marketing Holdings), 2017 (the DOJ in a case against Deutsche Bank), 2019 (Jones Day's failure to redact grand jury testimony), and 2019 again (Paul Manafort trial). Yet, law firms have not learned to do it better. As Hon. Herbert B. Dixon Jr. noticed not too long ago "for now, nothing in this world can be said to be certain, except death, taxes, and redaction failures."
The general recommendation is using a PDF editor to mark and apply redactions. But this is not an error-free method either. With the drafting process taking place exclusively in Microsoft Word, redactions will have to be proposed and reviewed in that medium during the drafting and editing process before being transferred to a PDF document. Currently, lawyers do this in one of three inefficient and error-prone ways: (1) highlighting proposed redactions in the Word document in yellow, removing them before printing to PDF, and then re-marking and applying the redactions in the PDF (risking that some proposed redactions will be missed); (2) highlighting proposed redactions in the Word document in yellow, changing them to black after receiving client or partner approval, printing to PDF and then marking and applying redactions over the black highlights; (3) highlighting proposed redactions in the Word document in yellow or a different color, printing to PDF after
receiving approval, and marking and applying
redactions over the highlights in the PDF (the risk here is mostly aesthetic, showing a sloppy redaction with colored highlights peaking out of the redactions; the photo on the right is an actual redaction submitted that way).
After a decade, there is a solution to avoiding these redactions failures. Prelimine's LitKit provides a way to mark and remove redactions directly in Microsoft Word. Once the redactions are approved, LitKit users may with the click of a button print to PDF two documents (1) one applying the redactions; and (2) a clean document with a clearly marked confidentiality header of the user's choice. Finally, a simple way for law firms to avoid embarrassingly repeating the same error they've been warned about for over a decade.