Confidential and Privileged Information on eDiscovery

내용에 보면 FRCP 5.2.가 이제 eDiscovery 과정에서 거쳐야 하는 필수 스텝으로 자리매김하고 있다는데, 이거 전에 신경 안쓰고 있었지만 우리나라도 개인정보에 민감하다 보니 이 부분도 고려를 해야겠다는 생각이 드네. 아래 읽어 봐라. 

 

http://www.aceds.org/sound-redaction-methods-protect-against-mistaken-disclosure-of-sensitive-data/?utm_source=rss&utm_medium=rss&utm_campaign=sound-redaction-methods-protect-against-mistaken-disclosure-of-sensitive-data

 

 

The redaction process has been considered expensive, time-consuming, subject to human error and labor-intensive.[1]  Nonetheless, it is a necessary part of discovery. Being aware of the latest tools and methodologies can make the process easier and more defensible.

The case J-M Manufacturing Company, Inc. v. McDermott, Will & Emery[2] illustrates the importance of implementing defensible redaction methods. In the McDermott case, J-M Manufacturing, McDermott’s former client, alleges that McDermott is responsible for the production of privileged documents.  Specifically, the complaint alleges that McDermott “performed limited spot-checking” and “did not thoroughly review” the work of the contract attorneys and, as a result, about 4,000 privileged documents were produced.[3] While this may be the first malpractice case directly involving e-discovery issues, court-ordered sanctions involving e-discovery have generally been on the rise.[4] A more recent example arises from the high-profile Apple-Samsung litigation, in which Samsung’s outside lawyers at Quinn Emanuel were fined by a US court in San Jose for an inadvertent disclosure related to an insufficient redaction.

Rule 5.2 of the Federal Rules of Civil Procedure requires that steps be taken to ensure the privacy of sensitive information such as social security numbers and names of minors.[5]  Recent cases have shown that courts will not hesitate to impose sanctions for violations of Rule 5.2.[6]

There are several ways to help protect against an inadvertent disclosure of confidential or privileged information.

Perform redactions on all facets of a document

E-discovery productions often involve the release of documents in a format in which each document contains static images of the document (TIFFs), the native file and the associated metadata. Depending on the form of production, it may not be enough to only redact the static image files for the documents. For example, if the images are redacted, but the native files are also going to be delivered, then the requesting party can simply open the file natively to reveal the redacted content. Similarly, if images are redacted then metadata should also be reviewed to ensure it does not contain privileged or confidential information (such as un-redacted text). Special care should be taken regarding the method of redaction to ensure that the content is actually removed or the redaction is “burned” into the document to prevent the redacted information from being discoverable.

Utilize auto-redaction technologies

There are technological tools offered by various e-discovery service providers that can automatically redact information from documents selected for production. Auto-redaction technology allows users to pre-define names, bank numbers, and other important information and have them automatically removed from sets of documents. This type of technology can be quite versatile. It can auto-redact certain formatting from documents, for example XXX-XX-XXXX for social security numbers. In addition to saving time and money, the use of auto-redaction technology can make redaction processes more defensible and consistent.

Use tested methodologies

Using a tried and measured methodology can make your process defensible. There are numerous ways to mitigate the risk of a mistake. For example, a production process that involves various levels of documentable quality control can demonstrate the reasonableness of a mistake. There should also be some method of preventing the inadvertent disclosure of a redacted document without its redactions. It would be frustrating to have already spent the time and money to identify and redact a document to then still produce it in an un-redacted format. When working with an e-discovery service provider, you should ask what quality controls and safeguards it has in place to prevent these types of redaction errors.

Be aware of international issues

Redaction protocols can have a profound impact on a case that has facets across international borders. E-discovery professionals should be aware of the European Union’s Data Privacy Directive and its restrictions on the control of Personal Identifiable Information (PII). However, few consider the practical difficulties involved with creating multiple sets of redacted materials to comply with these requirements until they are met with tight timeframes to do it.  Time spent early on organizing and planning for the different sorts of redactions that will be needed can pay major dividends down the road.

Conclusion

The importance of ensuring a thorough and defensible strategy to redaction cannot be overstated. A variety of tips, tools and strategies exist that can help with this necessary process. Developing an effective redaction strategy early on in a case can not only save a lot of time and money but can also protect clients and reputations.

Joshua Kay is a litigation support coordinator at WilmerHale in New York City.