Electronic "Redactions" Not Always Effective: Greater Caution In Dealing With Sensitive Materials In Trade Secret Cases Necessary
The ABA Journal reports that a Princeton PhD candidate study has found electronic “redactions” included on PDF documents may not always be effective. Specifically, the study revealed that a computer program was able to scan 1.8 million Pacer filed documents, identify 2,000 documents that contained redactions (in the form of the ubiquitous “black boxes” obscuring the confidential information) and further identify 194 of these redactions which were able to be removed and the “confidential” information revealed. The “flaw” appears to be in the PDF documents themselves, and how they were created. The author of the study, Timothy Lee, explained that PDF documents consist of multiple layers, and that an improperly placed “redaction box” might not completely obscure the confidential information which is sought to be protected. Mr. Lee explains that “retrieving” the redacted information could be as simple as cutting and pasting from the PDF document.
Mr. Lee offers suggestions for legal practitioners looking to avoid the pitfalls of “failed” redactions, but the greater issue raised by the study is the danger in not fully exploring and understanding the technology we as lawyers are using to aid and further the representation of our clients. Although the study focuses on Pacer filed documents, “redacted” PDF files are exchanged by parties regularly during discovery, particularly now in the age of e-Discovery. Where once documents were redacted by-hand before copying was done, and the confidential information never being on the produced document, as Mr. Lee indicated redaction on PDF documents is usually accomplished by adding a “black box” layer to the information sought to be protected. Depending on how the PDF document is then handled, the information might still be accessible. Simply assuming that because you cannot “see” the information on the screen it is “gone” can be a dangerous plan. Attorneys would be well served to ensure that their electronic redactions are as secure as those made by the old fashioned black marker. This means not only looking at the PDF documents before sending them along to opposing counsel and/or electronically filing with the court, but ensuring that the redactions are to all of the layers of the PDF, and that they cannot be otherwise reversed.
Confidentiality agreements, “claw-back” provisions and protective orders may be able to recapture information inadvertently revealed to opposing counsel, but the lurking peril here is that none of these will recapture information lost to a non-party Pacer search similar to the one Mr. Lee ran for his study. Greater caution, and greater familiarity with the technology we are using, is the name of the game, especially if a company's trade secrets are in play.
