Preserving Your Client’s Confidential Information: Another Electronic Nightmare

June 5, 2008

As the legal world becomes increasingly digital and everything from discovery to court filings are conducted electronically, new risks and concerns arise regarding client confidentiality. If you don’t believe it, just ask the lawyers and executives at General Electric. At the end of May 2008, the lawyers for both plaintiffs and defendants in the class action sex discrimination case against General Electric were surprised to learn that several documents filed electronically with the court under seal could be downloaded, copied, and pasted into Word. The problem was that not only could the documents be viewed, but the redacted portions of the documents — the portions no one was supposed to see — became viewable to anyone who took the time to download, copy, and paste the Adobe files into Word format.

Plaintiff’s counsel spent countless hours blacking out certain confidential portions of its briefs and other court-filed documents using older versions of Adobe software. The problem, however, was that the metadata still existed and when the redacted portions of the Adobe files were pasted into Word, the confidential information appeared. Needless to say, electronic mishaps such as this cause great concern for lawyers and clients alike. Clients have a legitimate expectation that documents filed under seal, with confidential information redacted, will remain confidential. Electronic blunders similar to those in the General Electric matter must be prevented to maintain client confidentiality.

More recent versions of programs such as Adobe and Redax are designed to permanently redact confidential information. In addition, documents can still be redacted by hand (e.g., white-tape remains an effective tool for smaller redaction projects) and then scanned into an Adobe file. This method eliminates entirely the concern over the presence of metadata, but may sacrifice efficiency. No matter what course attorneys elect to pursue, special attention needs to be given to client confidentiality in a legal world that is becoming increasingly digital.