The Troubling Issue of Redaction

April 7, 2004

As a practical matter, most litigants and most courts address attorney-client privilege and work product claims on a document-by-document basis. However, in some situations, courts look at the issue word by word.

In Judicial Watch, Inc. v. United States Postal Service, 297 F.Supp. 2d 252 (D.D.C. 2004), the court assessed the Postal Service’s privilege claim under the Freedom of Information Act. The court criticized the Postal Service for failing to offer a “segregability analysis,” which would have explained the basis for redacting or not redacting portions of privileged documents. Id. at 257.

Some documents with easily identifiable discrete elements (such as board of director minutes containing a seriatim discussion of discrete topics) clearly deserve redaction, but it is difficult to know where to draw the line once redaction starts – should a litigant producing a clearly privileged letter from a lawyer to a client providing legal advice redact the substance of the letter but produce the “best regards” at the end of the letter? Most courts avoid these thorny issues.