Category Archives: Redaction

Redaction Failures Continue in Electronic Court Filings, Study Shows


Timothy B. Lee, a graduate student for Princeton’s Center for Information Technology Policy, recently published the results of a study he conducted into litigants’ failure to adequately redact sensitive documents before uploading them to the various Court PACER systems. (PACER stands for Public Access to Court Electronic Records, and is available for most federal courts (see full list of participating courts.) As a means of attempting to address this problem, Mr. Lee has developed software (which he has released into the public domain through his article) that would permit courts to pre-screen PDF filings before they are accepted for the electronic court filing (ECF) system to determine if redactions were ineffectively made (and then bounce the filings back to the litigant for correction). He has also suggested that courts modify the software to create a tool for ECF users to pre-screen their own PDFs to confirm that redactions were made effectively before uploading them to the court’s public records.

Court Rules Require Redaction in Electronic Filing 

A court’s local rules may provide for redaction of certain sensitive information such as “personal identifiers as Social Security numbers, dates of birth, financial account numbers and names of minor children . . . .” U.S. District Court for the Eastern District of Pennsylvania, Local Rules of Civil Procedure 5.1.3; see also U.S. Court of Appeals for the Third Circuit, Privacy Policy. Litigants themselves may have other reasons to redact certain information – such as a need to keep competitively sensitive information, trade secrets or other information protected by a Protective Order, Non-Disclosure Agreement or Confidentiality Agreement from disclosure to the public.

Litigants Do Not Always Redact Effectively

Mr. Lee concludes that litigants and their counsel do not always comply with court rules for redacting sensitive information from documents to be filed with the Court. His article explains his research methodology in detail, and it’s worth reading the entire thing to get proper context for his analysis.

His research raises some important points – specifically, even though counsel may make a genuine attempt to redact certain information before uploading PDFs to the court’s ECF system, they aren’t always doing it correctly. It is simply not sufficient to redact text by applying black shading to it within the word processing program and then saving the file to PDF format. He identifies several examples in which he found black shaded boxes covering text, which on their surface might appeared to be a redaction, but this method allows someone to copy and paste the so-called “redacted text” into a new document, so that the text that the author hoped to keep secret would actually be revealed.

Tips for Redacting Completely

Mr. Lee recommends using the National Security Agency’s 2005 primer on secure redaction as a guideline to redacting effectively a document before making it public. See “Redacting with Confidence: How to Safely Publish Sanitized Reports Converted From Word to PDF,” NSA, 12/13/2005 (provided by the Federation of American Scientists; note that a 2006 version of the document is available directly from NSA). Mr. Lee describes the safest approach: “completely deleting sensitive information in the original word processing document, replacing with innocuous filler (such as strings of XXes) as needed, and then converting it to a PDF document . . . .”

However, frequently, court filings are made at the last minute, in a rush, and replacing the sensitive information in a document with innocuous text before creating a redacted version may not work for all litigants. Sometimes, you have one round of redactions and immediately before filing, the decision is made to either unredact certain text or to redact more. It may be faster instead to use commercially available redaction tools (such as Adobe’s redaction tools – currently available in Adobe X Pro or Adobe X Suite) to create and edit the redactions in the PDF document itself up and until the time of filing. Adobe’s article on Redacting Sensitive Information using its tools is also worth reading.

Some courts have published guidelines for creating effective redactions in documents to be submitted for electronic court filing and ultimately, for public review. See, e.g. (in alphabetical order, by state), Southern District of Alabama’s Best Practices: Redaction of Information; Northern District of Arizona’s Effective Personal-Identity and Metadata Redaction Techniques for Subsequent E-Filing; Northern District of Indiana’s Notice of Redaction Responsibility; District of Maine’s A Guide to Proper Redaction of Documents; Minnesota District Court’s ECF Tips at page 7; Montana District Court’s Out of Sight, But Not Gone . . . ; New Jersey District Court’s Effective Personal-Identity and Metadata Redaction Techniques for E-Filing; Northern District of California’s ECF Tip: Avoid Inadvertent Disclosure of Redacted Material by Using Proper Redaction Technique.

Litigants and counsel are urged to review these suggestions and make smarter choices in their redaction practices.

Take Into Account Court Rules Requiring Text-Searchable PDFs

Some courts also require PDF documents to be submitted in “text-readable” or “text-searchable” format. See, e.g. District of Oregon’s Local Rule 100 (includes a provision that all PDFs be submitted in text-searchable format: “Attachments, or other documents not generated by the filing party’s word processing system which are scanned and then converted into a PDF file in preparation for electronic filing, should be run through an application (like an optical character recognition program (OCR)) to convert the contents into a text searchable PDF file. Exhibits which are primarily graphical do not have to be converted to text searchable documents.”).

Other jurisdictions merely indicate that a text-searchable PDF is “preferable” to an image-only PDF, in part because it takes up less storage space in the court’s records system. See, e.g. (in alphabetical order, by state), Middle District of North Carolina’s ECF Administrative Policies and Procedures Manual at page 3 of 27(“Although there are two types of PDF documents, electronically converted PDF’s and scanned PDF’s, for documents capable of electronic conversion only electronically converted PDF’s may be filed with the court using the ECF System, unless otherwise authorized by local rule or order.”) (emphasis in original); Northern District of Ohio Electronic Filing (“Documents should not be scanned unless they require an original signature or where the original itself is in paper format. The Court prefers that documents be converted rather than scanned because converted documents provide text search capabilities and greatly reduce the file size.”); Eastern District of Pennsylvania’s CM/ECF User Guide at page 2 (“Use a scanner ONLY if you cannot electronically prepare your documents.”); Utah District Court’s CM/ECF User Guide at page 5 (“Documents converted to PDF from Word, WordPerfect, or other word processing software are preferable, as converted documents are more easily readable and are text searchable.”); Eastern District of Wisconsin’s Portable Document Format (PDF) Guidelines at page 2 (“The Court recommends that you avoid scanning documents which originate with you. The direct software extraction methods usually provide better results.”).

For similar reasons, Mr. Lee does not recommend redacting a hard-copy document using a black marker and then scanning the document to PDF. While he concedes that this method works to remove the sensitive information from being viewed, blocked or copied, it also prevents the ability of the Court, other litigants and the public from blocking and copying non-secret text within a court-filed public document. Indeed, this type of copying is commonly when the Court wishes to refer to an excerpt of a litigant’s brief in its Order, but also when you are responding to a filing and need to refer to a long argument that your opponent has made – it’s simply easier and is less likely to introduce errors if you can copy and paste the cited portion. As Mr. Lee explains, “Although this may succeed in removing the sensitive information, we don’t recommend this approach because it effectively converts the document into a raster-based image, destroying useful information in the process.”

Bottom Line

Pay attention when you redact documents for public filing, and take a minute to try to block and copy that text that you think you’ve redacted to see whether the underlying text can be viewed. The pressure is always on for filing documents with the court as soon as possible when you’re under a deadline, but spending those extra few minutes to double check that you haven’t given away secret information is the smarter thing to do in the long-run.

NJ District Court Launches New Version of Electronic Filing System

Effective November 15, 2009, the United States District Court for the District of New Jersey implemented a revised version of its Electronic Court Filing (“ECF”) system. See CM/ECF Version 4.0 Public Release Notes, October 6, 2009.

According to the Notice, the following changes are now in effect:

* Added a checkbox for attorneys to confirm whether they have made any redactions in the document to be filed. The login screen also now contains hyperlinks to the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure regarding redaction requirements. (For more on the redaction requirements, see my prior post about the Court’s notice to the bar providing guidelines for redacting documents before filing them in the public system. See also Robert McMillan, HSBC Exposed Sensitive Bankruptcy Data, The New York Times, December 4, 2009, which discusses the redaction problem more broadly. )

* Implemented the changes imposed by the amended Federal Rules of Civil Procedure with regard to the calculation of various deadlines.

* Streamlined document and attachment uploading to appear on a single screen.

* Renumbered documents and their attachments.

* Modified the user interface for reference during docketing.

* Added an option to subscribe to an RSS Feed for notifications, with links to docket sheets and documents. (Does not include restricted or sealed information.)

* Updated user interface for e-mail information.

The Court’s notice provides more detail, and I encourage you to review it in its entirety. For more information about the amendments to the Federal Rules, see Notice To The Bar – Notice of Federal Rules Amendments, December 3, 2009, which also provides a link to the text of the new rules.

The Court also announced that effective December 1, 2009, attorneys wishing to register for the ECF system can no longer merely certify that they completed the online tutorial on the Court’s web site. Instead, they must attend “hands on” training held at the courthouse or in-house at a law firm. See Notice to The Bar – New CM/ECF Registration Requirements.

NJ Federal Court Issues Notice about Redaction of Private Information from Court Filings

I received this notice today from the U.S. District Court for the District of New Jersey, and thought it worthwhile to post in its entirety:

It has come to our attention that electronic filers may be using inappropriate procedures or software to redact documents. We encourage all electronic filers to review their software guides and/or check with your systems’ staff regarding this issue. The redaction techniques below can also be found on the court’s web site at http://www.njd.uscourts.gov/cm-ecf/RedactTips.pdf.

Effective Personal-Identity and Metadata Redaction Techniques for E-Filing

When you e-file a PDF document, you may be providing more information in that document than you can see via your PDF reader software. Some redaction techniques used when e-filing are ineffective, in that the text intended to be hidden or deleted can be read via a variety of techniques. And, because information about the document, called “metadata”, is also stored inside the document, it is often viewable as well. Examples of metadata and hidden data include the name and type of file, the name of the author, the location of the file on your file server, the full-sized version of a cropped picture, and prior revisions of the text.

E-filers must use extra care to make sure that the PDF documents to be submitted to ECF are fully and completely free of any hidden data which may contain redacted information. The protection of sensitive data can be compromised if improper redaction techniques are used. Here are a couple of examples of sensitive-data visibility issues:

* Highlighting text in black or using a black box over the data in MS Word or Adobe Acrobat will not protect the data from being able to be seen. Changing the text color to white so it disappears against the white screen/paper is similarly ineffective.

* Previous revisions and deleted text may be able to be seen by manipulating an Adobe Acrobat file.

Fortunately, there are effective means of eliminating this metadata from electronic documents. Probably the simplest method is to omit the information from the original document and save the redacted version with a new name, for example, “REDACTED”, then convert to PDF.

While the court does not endorse any specific method, and the responsibility for redacting personal identifiers rests solely with the parties, commercially-available software can be used to redact, not just hide, the sensitive information. Redax (http://www.blogger.com/www.appligent.com) and RapidRedact (http://www.blogger.com/www.rapidredact.com) are two examples of commercial products used by some. Adobe Acrobat 8.0 Professional and above and WordPerfect XIV both contain redaction tools. Search the web for references that may be useful to you.

While this notice clearly applies to cases filed in the federal court of New Jersey, electronic court filing is also available in the federal court in the Eastern District of Pennsylvania (Philadelphia, Allentown), which has a local rule requiring that certain personal information of the parties be removed from public filings. E.D. Pa. Local Rule of Civil Procedure 5.1.3 (“Modification or Redaction of Personal Identifiers: As documents in civil cases may be made available for personal inspection in the office of the clerk of court at the United States Courthouse, or, if filed electronically, may be made available on the court’s Electronic Case Filing system, such personal identifiers as Social Security numbers, dates of birth, financial account numbers and names of minor children should be modified or partially redacted in all documents filed either in traditional paper form or electronically.”).

UPDATE: This notice is also available on the Court’s web site. See Personal-Identity and Metadata Redaction Notice, October 23, 2009.