Court Analyzes Question of Whether Producing Party May Redact Irrelevant Information

On September 25, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Hansen Realty Dev. Corp. v. Sapphire Realty Group LLC, 2020 NY Slip Op. 33166(U), analyzing the question of whether a producing party may redact irrelevant information:

In their moving papers, the Zhu Defendants argue Hansen does not have a basis to unilaterally redact documents solely for lack of relevance. Hansen, in turn, argues that the redacted WeChat Messages should be treated no differently than other documents that are not produced for lack of relevance. However, the WeChat Messages are not separate documents that can simply be withheld as non-responsive as they comprise an entire conversation, some parts of which counsel now seeks to redact on the basis of what it deems relevant or not.

CPLR § 3101 a) requires the full disclosure of all matter material and necessary in the prosecution or defense of an action, and this provision is interpreted liberally to require disclosure of facts that assist a party's good faith preparation for trial. However, materials that are properly covered by privilege, attorney work product, and certain trial preparation materials are not subject to disclosure..

Although Part 202 of the Uniform Civil Rules for NY State Trial Courts, Section 202.5(e) provides rules for the omission or redaction of confidential personal information, there is no guidance as to whether parties are permitted to redact materials on the basis of relevance alone.

Hansen relies on Ohnmacht v New York, 2009 NY Slip Op 511 OO[U] [Ct Cl 2009] to argue that a producing party is permitted to redact non-relevant information. There, the court conducted an in camera review, after which it determined that limited redactions were appropriate to protect sensitive information that was also irrelevant to the claim. Accordingly, Ohnmacht simply does not stand for the proposition that a party is entitled to redact material that is irrelevant per se because, in that case, the court determined that the materials should remain redacted because they could reveal sensitive information of the producing party; the fact that this redacted information was also irrelevant was not the basis for the court's decision.

Hansen also relies on two cases from the United States District Court for the Southern District of New York for the proposition that courts permit parties to redact portions of documents that are not relevant: Schiller v City of New York, 2006 WL 3592547 [SD NY 2006] and Kingsway Fin. Servs., Inc. v Pricewaterhouse-Coopers LLP, 2007 WL 473726 [SD NY 2007]. In Schiller, the City of New York moved to compel certain parties to produce unredacted meeting minutes of an anti-war organization that had organized a protest in connection with the Republican National Convention. The motion was denied because internal political discussions and discussions on other courses of action considered and rejected were deemed irrelevant to whether the plaintiffs had intended to engage in civil disobedience. The court further noted that the unredacted portions of minutes produced reflected materials relevant to whether the NYPD had probable cause to arrest protestors. In Kingsway, the defendants' motion to compel the production of redacted document was denied because the defendants were unable to establish that the redacted portions were responsive to their discovery requests.

However, authorities from the same court have also held that redactions are impermissible unless based upon a recognized legal privilege. For example, in In re State St. Bank & Trust Co, Fixed Income Funds Invs. Litig., 2009 US Dist LEXIS 34967 [SD NY 2009], the court determined that redaction of any portion of a document on the ground that it was non-responsive and irrelevant was not warranted, and remarked that redactions are generally unwise. They breed suspicions, and they may deprive the reader of context. Although the In re State. St. Bank court noted that Schiller permitted careful redactions based on relevance, the court distinguished Schiller because the redactions permitted therein involved free speech rights against government attorneys, which is an area of speech generally entitled to special protection.

A survey of recent case law indicates that both the United States District Court for the Southern and Eastern District of New York have now adopted the approach from In re State St. Bank, namely that redactions are improper when based on a party's unilateral assertion of relevancy. Most recently, in a case with similar facts to this one, the United States District Court for the Central District of California ordered the production of redacted text messages that purported to exclude irrelevant information, while citing to In re State St. Bank and other New York case law.

Here, the Zhu Defendants identify seven groups of redacted WeChat Messages that they argue should be revealed in their entirety. Significantly, these redacted WeChat Messages were sent in 2016 and 2017, encompassing a critical period relevant to the disputed events in the third-party action. The WeChat Messages include group messages sent or received by Mr. Yin or Mr. Jia, the two defendants in the third-party action. There is also one group of messages that were sent directly between the two third-party defendants. Hansen does not provide any information about the redacted WeChat Messages, such as their general subject matter, but simply claims in a conclusory fashion that more than 90% of the redactions were of non-relevant conversations exchanged between the aforementioned individuals. Furthermore, inasmuch as Hansen attempts to explain its methodology for the collection and redaction of WeChat messages by relying on BDO's Memo, this information is simply irrelevant to the instant motion because Hansen nevertheless fails to provide a compelling reason why its unilateral relevance redactions should be accepted, given the existence of substantial authority to the contrary and given its repeated failure to set forth the basis for its blanket assertion of lack of relevance, particularly as there is a compelling reason to believe that the redactions may be relevant based on their time period. Put another way, the Zhu Defendants are not required to just take Hansen's word for it and in any event such redactions must be reviewable by the court when challenged, as here.

Accordingly, the parties are directed to agree on an ESI protocol with respect to the WeChat Messages within two weeks of this decision and order, including search terms. Hansen is required to have all of the WeChat Messages translated by a certified translator and to upload the WeChat Messages o a searchable database within 30 days of this decision, which database shall be preserved in the event of any disputes, and to produce all responsive messages pursuant to the ESI protocol within 45 days of this decision, along with a detailed log stating the specific bases for any assertion of non-relevance. In the event of any disputes as to the propriety of the redactions, the parties may contact the court and the court will conduct an in camera review of such translated WeChat Messages.

(Internal quotations and citations omitted) (emphasis added).

A big part of complex commercial litigation is giving, receiving and evaluating evidence (this is called "discovery"). The scope of discovery in New York is broad. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client has a question regarding discovery obligations (and what to do if a litigant is not honoring those obligations).