Mastering The Art Of Redaction. Or Not.

Adam Liptak at the New York Times reports that:

About eight pages of a 51-page government brief filed in federal court in San Francisco on Wednesday were electronically blacked out to protect what prosecutors said was sensitive material concerning a grand jury’s investigation into steroid use in baseball. But the secret passages can be viewed by simply pasting the document into a word processing program.

Forget the substance of this case. And I assume that the material was supposed to be blacked out. (The general counsel for Hearst newspapers, an opposing party, elegantly suggested this might have been an intentional leak, saying “it is our hope that the government did not leak the document”. Nice!) I can’t help but wonder who screwed up (lawyer, paralegal, or secretary) and whether any heads will roll.

Speaking as a former legal assistant at Heller, Ehrman in San Francisco, and junior associate at Debevoise & Plimpton in New York (roughly equivalent positions, given that SF paralegals routinely conducted cite-checks, a task left to junior associates in NY), I can only imagine the horror transpiring at DOJ. The low level employees responsible for these redactions no doubt live in daily dread of a – shall we say it? – fuck up of this magnitude. The good news is that this incident will be a helpful training vehicle for law firms across the country. The bad news is that the median blood pressure of paralegals and junior associates just went up a notch.

Meanwhile, at this very moment, somebody is holding his or her head very low. He or she may already be toting a pink slip. Given our small world, I’ll bet that there’s no more than one degree of separation between Co-Op readers and this sorry soul. If you know him or her, tell him my heart goes out. Thank the lord it wasn’t me.

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2 Responses

  1. KipEsquire says:

    I think there’s a significant overestimation in the professions of the productivity skill set of the median employee (i.e., how well they truly know MS Office, let alone Lexis, WestLaw or a Bloomberg terminal).

    For example, I can’t count the number times I get calls from panicked MBAs who think that their documents have been hopelessly corrupted because they don’t know the difference between “Page Layout” and “Normal View” in MS Word. Or what a ZIP file is. Etc.

    This anecdote doesn’t suprise me one bit.

  2. RCinProv says:

    I am years into a project that involves criminal court transcripts. The cases involve child abuse so redaction is a constant issue. I have yet to obtain a “redacted” transcript that does not reveal some or all of the information that is supposed to be redacted.

    I agree that the the job of redacting is difficult and I don’t blame the poor clerks. I just find the whole endeavor largely useless. Indeed, based on my experience, I’d say that redaction of long documents is never fully effective. And of course, if it’s not fully effective, it’s not effective.

    Finally, there’s the case where the transcript is entirely sealed to prevent this possibility — and what do you know, the Magistrate in the federal habeas petition used the kids’ names in a decision available on PACER!