Can You Keep a Secret? Florida’s New Redaction Rule

Published in 2012
by Christopher B. Hopkins

If you have practiced for more than a decade, you have likely spent time with black markers or redaction tape trying to remove confidential information from discovery documents. Using a computer to redact electronic documents makes that job easier but may also increase the possibility of error – even among savvy parties. Recently, a California U.S. District Court judge intended to redact information from the publicly released version of her ruling in a high-profile patent litigation case between Apple and Samsung. Because she used the wrong redaction method, however, anyone copying and pasting the opinion text from the PDF version into a new document could read the sensitive information she had intended to protect.

Avoid potentially disastrous mistakes in your own practice by reviewing your redaction methods and Florida’s new procedural rules requiring removal of certain information.

Since October 1, 2011, Judicial Administration Rule 2.425 has limited the sensitive personal information which may be filed with the court. For example, with certain exceptions, a birth year (not date) is permitted whereas no portion of a bank account number may be included. Failure to comply with the rule could result in sanctions. Rule of Civil Procedure 1.280, Judicial Administration Rule 2.420, and other rule amendments work in conjunction with Rule 2.425 to limit the use of confidential and sensitive information obtained in discovery (federal court practitioners should review F.R.C.P. 5.2). The Florida Bar offers a free 90 minute CLE, “New Rule 2.420 Seminar,” at http://bit.ly/t21uqE).

Electronic case filing (“e-filing”) is standard in federal courts, increasing in the Seventeenth Circuit, and on the near horizon for Florida appellate courts. Information redacted from court filings must be able to withstand electronic scrutiny. In addition, a rule current being revised by the Rules of Judicial Administration Committee at the direction of the Florida Supreme Court will require most attorneys to serve documents, including discovery, by email when mandatory electronic filing is phased into the circuit courts.

Old-fashioned redaction of a paper document before scanning can be effective, so long as the covering is completely opaque. That said, covering information with ink or semi-translucent tape or paper can sometimes reveal critical information when scanned. Redaction of an electronic file can be easier, but care must be taken that the redaction is complete and final. Avoid these common pitfalls:

• DO NOT change the text’s font to white. DO NOT cover text with black highlighting or shapes. This will make it seem that the words have disappeared but cutting and pasting the text into a new document can retrieve them.

• DO NOT rely on your word-processing program alone because all programs retain hidden code (called “metadata”) that may include the history of revisions you have made. Even if you think you are not tracking your changes, information you have redacted may be retrievable.

• DO NOT rely on the edit tools in older versions of Adobe Acrobat to remove or cover over text because these edits can be removed to view the original information.

One effective redaction method is to replace confidential information in a word processing document with the phrase “text redacted” and then use your software to convert the document to PDF format. Only use this method if you are certain your PDF conversion will not include any metadata. Alternatively, you can print the document and scan it to a PDF file.

Another safe method is to redact a document in your word processing software and then copy the entire document into a simple-text editor such as Windows Notepad. Because this program does not save any hidden code, no metadata is preserved. After saving a document in Notepad, a PDF of the document will only contain the information visible on the screen. Unfortunately, most of the formatting of your original document will also be lost. If, however, you open the redacted Notepad document into a brand new Word document and reformat it, there should be no metadata relating to the redaction. This new Word document can be converted to PDF and shared electronically.

Instead you may wish to invest in software designed to efficiently and completely redact information. Keep in mind that you will want to redact information from both word processing documents and paper documents converted to electronic form and this may require different approaches. For word processing, some newer versions of common software offer redaction tools that remove metadata. Other companies, including Microsoft, offer downloads to add redaction tools to existing software.

For PDF documents, Adobe Acrobat Professional (Version 8.0 or later) includes redaction tools and will also examine a document to locate metadata. When you save a document after making redactions, the program permanently removes the redacted information. Adobe add-on programs such as Appligent’s Redax perform the same functions for older versions of Adobe.

Other programs such as Redact-It, Adeptol Redaction Software, and RapidRedact perform complete redactions of any type of document with the added ability to search documents and flag information which may be sensitive, such as variations on a name or phone numbers.

Whatever method you chose, you can be confident that you are keeping your clients’ secrets safe by knowing the rules for what to redact and having an irreversible method to remove information from electronic documents.

Christopher B. Hopkins and Tracy T. Segal are with Akerman Senterfitt (West Palm Beach).