In Kaiser Aluminum Warrick, LLC v. U.S Magnesium, LLC., No. 22-CV-3105 (JGK) (KHP) (S.D.N.Y. Feb. 27, 2023), New York Magistrate Judge Katherine H. Parker denied in part and granted in part the plaintiff’s motion to compel defendant to reproduce redacted documents in unredacted form, finding that relevancy redactions for irrelevant information which was competitively sensitive were allowed, but ordered the defendant to “unredact certain information relevant to magnesium production as well as column headers/row descriptors and graph titles to increase transparency as to the nature of the redactions.”

Case Discussion

In this case involving defendant’s failure to fulfill its supply contract to provide magnesium to plaintiff over a force majeure claim, the plaintiff objected to defendant’s production of certain documents in redacted form, requesting that defendant be required to reproduce the documents in unredacted form, arguing that redactions for relevance are disfavored when there is a protective order in place, as there was in this case.

The defendant contended that the information redacted was irrelevant and competitively sensitive, and therefore, it should not be required to reproduce in unredacted form. The Court directed the defendant to submit samples of the redacted documents for in camera review, which consisted of monthly reports containing detailed financial information, results of research on competitors in the market, and reports on segments of the business unrelated to magnesium operations (such as information about its lithium plant and production). They also contained information on magnesium production.

Judge’s Ruling

Judge Parker noted that “courts have disallowed relevancy redactions from otherwise responsive documents (i.e., documents containing some relevant information). The reasons include: 1) a party should not be permitted to determine whether portions of a document being produced are irrelevant; 2) relevance redactions may eliminate context needed for an adversary to understand the unredacted portions of a document; 3) where a stipulated protective order is in place, the producing party’s information is protected; and 4) redactions take time and are expensive and therefore inconsistent with Rule 1’s mandate that cases be administered so as to promote a ‘just, speedy, and inexpensive’ resolution of the case.”

However, Judge Parker also said: “Although many courts do not permit relevancy redactions, this Court believes relevancy redactions can be appropriate in some cases. To start, allowing a party to determine whether a document is relevant is standard discovery protocol. Every party reviews its own documents for relevance and responsiveness and then produces, subject to objections. Rule 26(g) requires attorneys to sign discovery responses certifying that they have made a reasonable inquiry for responsive and relevant documents and that they have fulfilled their production obligations subject to proper objections…Rule 26(g) certifications are also representations that the producing party has acted consistent with the rules and not made objections for any improper purpose…There is no reason that this Court can discern to find that a party is less able to make good faith relevance determinations as to portions of documents than as to whole documents. Indeed, a party’s Rule 26(g) certification applies equally to the entirety of a party’s discovery responses and objections.”

She also said: “Second, while it is true that relevance redactions take time and may be expensive, if a party wishes to undertake the expense voluntarily and it can do so in a timely manner without impacting the discovery schedule set by the Court or prejudicing the other party, then such redactions are consistent with Rule 26(b)(3) and Rule 1… True, redactions may ‘breed suspicions,’…but, that need not be so if a party is clear about the reason for the redactions and is conservative in the amount of redactions. So too, over-redaction can deprive the other party of needed context. But here again, if a party is clear about the reason for the redactions and is conservative in the number of redactions, the other party would not be stripped of necessary context.”

She also noted that “the existence of a stipulated protective order can help allay concerns that a producing party’s confidential information will not be shared outside of the litigation. But, if a party does not want to produce irrelevant and confidential information to an adversary and redactions can avoid this result, a party should not necessarily be denied the opportunity to redact if redacting would not otherwise prejudice the other side or delay the case.” And she noted one downside to allowing relevancy redactions: “they can lead to motion practice, as they have here, which often creates additional expense and delay.”

As a result, Judge Parker ruled: “Although the Court would be fully within its discretion to require US Mag to reproduce the reports in total in unredacted form subject to the protective order, because such an order would run contrary to the Court’s ruling that Kaiser is not entitled to all the redacted information, it will permit US Mag to maintain certain redactions provided it can reproduce the documents within two weeks of this order. US Mag shall reproduce the documents to reveal responsive information about magnesium inventory and purchases and to reveal column/row descriptors as well as graph titles. Other redactions, including redacted bullet points under some tables and charts concern information irrelevant to this action and can remain redacted. Further, the parties shall seek the leave of the opposing party or the Court before redacting any future documents”

So, what do you think? Do you agree with the Court that parties should be allowed to redact irrelevant information from responsive documents? Please share any comments you might have or if you’d like to know more about a particular topic.

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