Few lawyers go to law school with the dreams of redacting Excel files. That said, knowing how to redact electronically stored information takes skill in knowing what applications to use.
In one recent case, a producing party redacted irrelevant information on 22,152 records, including 5,224 Excel files. American Municipal Power, Inc., v Voith Hydro, Inc., No. 2:17-cv-708 (S.D. Ohio Aug. 25, 2020). The Defendant-Producing Party argued this was appropriate, because Rule 26 restricts the scope of discovery to relevant matters and Rule 34 doesn’t prohibit redacting irrelevant information. While that is an argument, it is not a good sign when a Court states a party’s arguments “are not well-taken.” American Municipal Power, at *4.
The Court explained that it is a rare document that contains only relevant information. In cases where “documents” have relevant and irrelevant information, the practice is to not redact the irrelevant information. This information can give context to the overall facts and sensitive information can be covered by a protective order. American Municipal Power, at *5-6.
The Defendant argued that producing the records without redactions would cost them $553,800 in order to produce the native versions without redactions. The Court was not moved by this claimed cost, because the redactions were not for privileged material, because there was nothing claimed on a privilege log. Moreover, if there was an inadvertent production, the Protective Order had a claw-back provision. Based on those realities, the Court opined it would not be burdensome to produce the ESI without redactions. American Municipal Power, at *8.
The Court concluded its reasoning with the following:
In the end, it strikes the Court that rather than utilize the specific procedures negotiated here for the precise purposes of simplification, efficiency, and resource preservation – ideas to which Voith subscribes with respect to other issues – Voith insisted on an “irrelevance review.” It chose this path despite its own realization that it was extremely burdensome.
American Municipal Power, at *9.
Bow Tie Thoughts
It is extremely easy for a legal team to make a task more difficult than it needs to be. This can be from not understanding how review applications work, not understanding the data that needs to be reviewed, or redacting everything that is not “relevant.”
As to redacting Excel files, this issue has gone back to the Williams v Sprint case. The case was an age discrimination lawsuit and the disputes included an order to show cause why metadata was scrubbed from spreadsheets, the redaction of Social Security Numbers, and the production of non-privileged sections of spreadsheets in native file format. See, Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 645-46 (D. Kan. 2005), (Williams 1) and Williams v. Sprint/United Mgmt. Co., 2006 U.S. Dist. LEXIS 101071, at *24-25 (D. Kan. Dec. 12, 2006), (Williams 2). In the resolution of one issue in that case, the Court held that the producing party could remove metadata directly corresponding to the privileged information that was redacted. Williams 1, at 653.
There are review applications today that can redact Excels without having to convert the native file to a static image. While one such tool is referenced in the above opinion, such strategies should be used on privileged or confidential information, not redacting irrelevant data.