It’s Blacked Out, But Is It Really Redacted?
January 10, 2019 | Daniel J. Donnellon and Joseph M. Snyder
Defense counsel in the high profile criminal trial for former President Trump Campaign Manager Paul Manafort provided all lawyers, paralegals, and legal assistants a valuable lesson: USE PROPER REDACTION TOOLS FOR ELECTRONIC FILING.
Paul Manafort has been in the news as he sits in jail, without bail, awaiting sentencing for crimes related to his work, and income derived therefrom, in Ukraine for a political party favoring Russia’s interests in the region. After he was convicted in a Virginia federal court, and immediately prior to a related case in Washington, D.C., he signed a so-called “cooperation agreement” to provide testimony that would assist Special Counsel Robert Mueller. His lawyers apparently believed that cooperation with Special Counsel could result in a more favorable sentencing. But, as was widely reported in the national news, Special Counsel Mueller recently found that Manafort violated his cooperation agreement by lying to investigators.
On Tuesday, January 8, 2019, his defense lawyers electronically filed a 10-page brief with the federal court ostensibly to provide explanations for 5 specific “lies” contended by Special Counsel. They were permitted to file the entire brief under seal and to redact from the public filing any specifics regarding the alleged lies. The public filing contained certain specific portions that were electronically “blacked out” and were not intended for public viewing. But, as published by CNBC “those sections are easily viewable when the sections are copied in a word processing file, and then pasted into a new document.” They subsequently re-filed a correctly redacted version. But, not before CNBC published a story reporting on the alleged “lies” that included communications Manafort had with an alleged Russian spy, Konstantin Kilimnik that may have involved providing the spy with polling data on the campaign he was managing for then-candidate Trump. Of course, it is possible the law firm did this intentionally as some public relations campaign to release the “alleged lies,” but it nonetheless provides an important lesson.
Law firms must take heed. Although not every case involves the press scrutiny Paul Manafort is afforded, electronic filings in state and federal court occasionally must contain redactions, particularly for trade secrets or personal identifiers. In addition, even routine discovery exchanges regularly require privileged and confidential information to be redacted before production to the opponent.
There are a number of different ways to do redactions and a variety of effective software tools to choose from to get the job done. Many document editing programs allow a user to draw black boxes over sensitive material to be protected. However, oftentimes just drawing the box does not really effectively conceal the sensitive information.
In the case of the Manafort filing, his defense attorneys failed to “flatten” the markups they had created. Thus, the little black boxes they added were merely like digital pieces of tape on top of the underlying text present in the original document. This is why the public, including this author, was quickly able to uncover the supposed “hidden” text by simply highlighting the hidden text in the Adobe PDF, clicking copy, and then pasting that text into a Word document.
When redacting legal documents, it is essential to ensure that the original underlying text information is completely removed from the document that is e-filed. There are several methods that can be utilized to achieve this goal. One option consists of going back to the source material, deleting sensitive text, and replacing it with the word REDACTED or similar labeling. Another option is to simply create new scans of redacted material after any black boxes have been added. As long as the boxes completely cover the source material the new scans will be image files without the underlying text data that was present in the original. In other words, the digital “tape” will be made permanent. Alternatively, users may elect to use a software tool with document markup features to make redactions, but it is critical that they take all necessary steps to ensure that the markups are “flattened” or “burned-in,” thus deleting any source material underneath the black boxes that was present in the original document.