"Redaction" is a commonplace term in the legal circuit and a fairly common practice in legal documents. It refers to blacking out a document (manually/ electronically) in order to remove any confidential information/ sensitive information before disclosing it to the other party.

WHEN SHOULD A DOCUMENT BE REDACTED?

  1. Redacting personal data (contact details, email id, Aadhar/ Pan Card details, medical records, trade secrets, and security information, etc.) is important to avoid identity theft and to keep one's privacy intact.
  2. To hide the name of minors, informants' names, and home addresses to keep them protected from adverse parties involved especially in a criminal matter.
  3. To hide any information which is irrelevant to the matter in dispute. However, it is for the courts to adjudicate the issue of the relevancy of such information.

It is worthwhile to note that the Civil Procedural Code in India does not bear any mention to the redaction of documents or its mechanism, however, a general reference can be made to USA's rule 5 of the Federal Rules of Civil Procedure which provides that the court may order that a filing be made under seal without redaction. Here, the court may later unseal the filing or order the person who made the filing to file a redacted version for public record. Further, the courts in the USA are allowed to redact Social Security numbers, financial account numbers, names of minors, dates of birth, and home addresses.1

TO REDACT OR NOT TO REDACT? - JUDICIAL OUTLOOK

The approach that a party involved in litigation should take to the redaction of documents has long been shrouded in uncertainty. However, lately, some guidance on this front has been given.

In the matter of Union of India v. Reliance Industries Ltd. & Ors, 20182, the apex court concurred with the finding of the arbitral tribunal that "Confidentiality cannot be a ground for non-disclosure, especially when the Claimants successfully proved that the Request was sufficiently specific, and the document is relevant and is throwing light on the matter in issue". In other words, while exercising its discretion, the court or the authority concerned will delve into aspects pertaining to expediency, justness, and relevance of the documents keeping in mind the matter in issue.

Further on the issue of Redaction, in 2020, the England & Wales Court of Appeal explained the principles of Redactions broadly.3 Firstly, the Question of Relevancy/ Irrelevancy of the Document being redacted should be left to the court to decide for itself. The process of construction of a sentence requires the document as a whole to be considered, the starting point must always be that the entire document should be made available to the court, and any redactions to it should be convincingly justified and kept to an absolute minimum.4 Secondly, speaking for Redactions on the grounds of confidentiality – the court found it hard to see how it could ever be justified where the confidential material forms a relevant part of the document which the court is asked to construe. The courts have advised the usage of the "confidentiality ring" which has become a familiar feature of competition and intellectual property cases.5

A "confidentiality ring" is a group of designated individuals who are authorized by a court to view specified material, which has been disclosed in discovery, and which is withheld from one or more of the parties to the litigation.6 This ring has even been used in cases where both the parties were competitors and the document in question was an agreement containing one of the parties' Business Strategies.7

Lastly, the court was of the conclusion that in cases of extensive redactions, the court cannot safely resolve an issue of construction of the document in question, even if the redactions were accompanied by explanatory evidence and assurances. Here, it is worthwhile to note that context is everything, and sweeping generalisations are to be avoided.8

Moreover, the difficulties that may be caused by making of redaction were described by Charles Hollander QC:

"In considerable litigation, it is common for documents to be blanked out. However, the trend is often to do so unthinkingly, without analysing properly the basis or justification for so doing...Where material in the document is simply irrelevant, it is unlikely that there will be any point in blanking it out unless it is confidential. Blanking out part of a document always seems to excite interest in the document and the hidden contents for the other side."9

CONCLUSION – THE APPROPRIATE BALANCING EXERCISE

The question arises that what should be the right approach when one party intends to undertake redactions in a document? Obligations in relation to disclosure and inspection arise when the relevance test is satisfied. It is to be noted that Relevance can never include "train of inquiry" points that are merely fishing expeditions. This is a matter of fact, degree, and proportionality.10 If the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection.

The denial of disclosure or inspection should be limited to circumstances where such denial is strictly necessary. However, instead of denying the request of a party to discover documents, the principle of confidentiality ring may be adopted for the appreciation of facts involved in the respective matter. Lastly, the parties should try and strike a sense of balance that respects a protected interest by things such as redaction, confidentiality rings, anonymity in the proceedings, or other such arrangement/s as the tribunal may deem fit.

Footnotes

1. U.S. Government Publishing Office. "28 U.S.C. 5.2 - Privacy Protection for Filings Made with the Court," https://www.govinfo.gov/content/pkg/USCODE-2015-title28/pdf/USCODE-2015-title28-app-federalru-dup1-rule5.2.pdf (Pages 116-117).

2. MANU/DE/4667/2018.

3. Hancock v. Promontoria (Chestnut) Ltd., [2020] EWCA Civ 907.

4. Id, Note 4 Paragraph 89.

5. Id, Note 4 Paragraph 90; Durham County Council v. Dunn, [2012] EWCA Civ 1654.

6. LK Shields, Confidentiality Rings: Protecting Trade Secrets and Sensitive Information in Litigation, www.lexology.com/library/detail.aspx?g=337aa9c9-5e17-452c-b492-f19f499b6db6 .

7. Aqua Global Solutions Ltd v Fiserv (Europe) Ltd, [2016] EWHC 1627 (Ch).

8. Supra Note 4, Para 91.

9. Charles Hollander, Work on Documentary Evidence (13th ed.) Sweet & Maxwell, Para 10-16.

10. Durham County Council v. Dunn, [2012] EWCA Civ 1654.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.