Redaction: Now It’s Personal

Posted by Alison ONeill | Mon, May 18, 2020

Redaction is never having to say you are sorry – for the inadvertent disclosure of sensitive or privileged data.

With heightened concern regarding Personally Identifiable Information or PII, and the ever-present unease about inadvertent disclosure of confidential information and loss of privilege, an easy to use, reliable redaction tool is a “must have” item when working with Electronically Stored Information.

 

Rules Regarding Personally Identifiable Information

Personally Identifiable Information includes a wide range of information and even though PII is defined in the CFR it is by no means a clear-cut issue (2 CFR 200.79).  The rule states that determination of whether or not particular information is PII “requires a case-by-case assessment of the specific risk that an individual can be identified.”

Even seemingly benign information that would be considered in the public domain can be treated as PII if that information, combined with other information, “could be used to identify an individual.” (29 cfr 200.79)

While the analysis regarding what information should be treated as PII can be challenging, the ability to redact such information in an eDiscovery tool should not be such a challenge.

 

Why Is It Important To Have a Robust Redaction Tool?

Using an e-Discovery tool with a cumbersome, confusing redaction tool is like leaving the house and then wondering later if you left the oven on. You don’t want to come back to your house to find a pile of ashes or return to your e-discovery tool finding your Attorney-Client and Work-Product privilege gone up in smoke.

With the introduction of new privacy laws such as the California Consumer Privacy Act (CCPA) and pending privacy legislation such as that pending in New York, the accuracy and ease of use of redaction tools plays a critical role in e-Discovery.

While having a simple, accurate, and reliable redaction tool is an essential feature when choosing an e-Discovery provider, it is equally, if not more important to choose e-Discovery software that provides guardrails to ensure documents are not produced to the opposing party with incomplete or missing redactions.  This is even more significant if you have more than one legal professional reviewing the same documents.

Imagine the potential damage if one reviewer marks a document to be redacted and another goes to produce the document before it was redacted with no warnings or guardrails in place within their e-Discovery software.

Unlike the California Consumer Privacy Act (CCPA), the proposed New York privacy legislation created a private right of action allowing individual consumers to sue businesses of any size if their personal information is put at risk. Here it is important to remember that a law firm is a business and thus potentially liable under this proposed legislation.

 

Conclusion

Protecting both privileged information as well as PII is of utmost importance in any litigation and needs to be carefully and methodically reviewed and safeguarded.  In this regard, a user-friendly redaction tool is a critical must-have when choosing an eDiscovery Tool.

While the debate regarding how best to safeguard Personally Identifiable Information will likely continue for many years to come, one way to guard against inadvertent exposure of PII or the loss of privilege is to use e-Discovery software with a robust and reliable redaction tool so you are not put in the position of having to tell your partner or client you are sorry.

Written by Alison ONeill

Alison is a Senior Legal Consultant with Digital WarRoom. Alison has over 30 years experience in the legal field including working as a law clerk for a Pennsylvania judge, a law firm associate attorney, and Senior Legal Research Attorney. Outside of work, Alison enjoys spending time with her children, reading, crochet, and advocating for the rights of the developmentally disabled.

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