Confidentiality – Two Rules to Consider

In today’s digital-age, potentially responsive data is voluminous, custodians are plentiful, and data resides all around us.  As a result, we are likely to find documents that are protected, proprietary, and confidential.  Confidentiality is one of the most important things that a lawyer needs to pay particular attention to and take extra precaution with. If you do not want to deal with a malpractice lawsuit or be sanctioned by the courts, one must consider the isolation and/or redaction of such protected documents.

Under Rule 1.6 of the Federal Rules of Professional Responsibilities, a lawyer shall not reveal confidential information relating to the representation of their client, unless given permission from that client to do so. The only time that a lawyer is permitted to divulge information pertaining to their client is under one of the exceptions set forth in the Rules. For instance, if your client advises that he has hired a hit man and has explained in detail how the hit man is to kill his partner; that would be a situation in which you are free to reveal this information in order to protect another person from serious bodily injury or death.

Litigation Project Mangagement

If the information obtained from your client would not fall under the exceptions, you are not free to disclose it. During the process of preparing for trial, you will have documents with sensitive information that should not be revealed to counsel, courts, or the public. Documentation could have a variety of information to be redacted, including personally identifiable information (PII), such as financial account numbers, names of minors, date of births, and social security numbers of the parties. It is important that you take the time to redact these documents prior to sending copies to the court and counsel.

What is redaction and why is it important? Redacting a document means removing information from a document that is confidential and should not be revealed to anyone else. This is important because documents are filed with the courts every day and sent to opposing counsel with sensitive information that your client would not want divulged.

Rule 5.2 of the Federal Rules of Civil Procedure, sets forth the privacy protection for filings made with the court. Under this rule, an attorney is required to redact any documents being filed with the court unless the court orders otherwise. The reason for this is due to many documents having sensitive information such as social security numbers, taxpayer-identification number, date of birth, names of minors, or financial account numbers.

In order to redact this information, the court requires different variations of redacting this information. There are some exemptions to this rule such as revealing a financial account number that may be subject to the case at hand. The problem with redacting documents arises when improper methods to redact are used such as when someone simply tries to highlight over the information instead of deleting the information or using the proper software.

Typical problems with redacting occur when someone tries to hide the confidential information and they do not look over the documents clearly for all information that should be redacted, when they neglect to consider metadata, or they are unaware as to the use of technology that isolates/redacts data. Redacting is a very important part of litigation-production and should be done correctly in order to stay out of trouble with your client and the courts.

Data Processing & Hosting

With the rise in technology, we are now seeing major issues between confidentiality, redacting, and e-discovery. Just recently, Wells Fargo had a customer data breach. The attorney for Wells Fargo failed to review all of the documents in discovery, which lead to an inadvertent disclosure of privileged and confidential documents. Within these documents were PII pertaining to wealthy customers of Wells Fargo and their assets. These documents were handed over to opposing counsel without the proper redaction required. With the overwhelming amount of eDiscovery comes the risk of potential liability and malpractice suits being filed if the documents are not properly looked over and redacted.

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