While this is a story of another redaction gaffe (this time by a major company), it’s so “low-tech”, it could have happened decades ago.
But it happened last week.
As reported by Isha Marathe in Legaltech® News (Sony’s Sharpie Redaction Gaffe Is Egregious, But Underscores Common E-Discovery Gaps, available here), technology company Sony had to produce several documents for the Federal Trade Commission v. Microsoft lawsuit, one of which was a report—with confidential financial details redacted—sent by PlayStation chief Jim Ryan. Unfortunately, on June 28, things didn’t go according to plan.
The redactions were made in black Sharpie instead of using redaction tape, or redaction software, a more common method. The problem: When one scans a document, the Sharpie ink can occasionally lighten, making some redactions visible on the electronic document.
For Sony, this meant the inadvertent disclosure of the profit margins the company shares with its publishers, along with revenue details relating to its “Call of Duty” franchise, among other proprietary financial information. While the court worked to remove the document from the public domain, it was already too late. Sony’s competition downloaded the report, while media outlets quickly analyzed its findings.
Voilà! Yet another redaction gaffe.
that while the Sony mistake may be a little unusual considering it is a large corporation, redaction errors are generally commonplace—though, less so today.
“It doesn’t happen as often or as notoriously as it used to because tools have improved over the years and native redaction has become increasingly feasible,” he said. “Still, it’s deadly dull work delegated to mere human beings, often the lowest-paid folks on the team.”
Before redaction software was available, most teams relied on litigation assistants who physically used redaction tape to cover up the necessary portions of a document before production, said Mary Mack, CEO and chief legal technologist at the Electronic Discovery Reference Model. However, even with sophisticated electronic solutions that redact the data and the metadata from a document, litigation paralegals still are vital to the initial process of erasure along with setting up checks before production.
Mack told Legaltech News that she used to work with Sony’s e-discovery team in 2003 and considered the company an early mover in terms of e-discovery, which is why its mistake seems even more surprising. In fact, “Sharpie cases,” as Mack refers to them, are mostly common in personal finance productions. While an inadvertent disclosure of a Social Security number can be “horrendous” for an individual, the scope of Sony’s information leak is massive, she said.
What’s more, the inadvertent disclosure signals two big things for Mack when it comes to Sony’s legal team: too many time constraints and, possibly, a poor communication culture.
“Effective redaction demands you thoroughly redact both the visual raster graphic component [a two-dimensional picture comprised of pixels] as well as the textual component of the redacted electronic document,” Ball noted. “[Also] it’s tricky to rely upon text search alone to flag every instance of every variant of the information sought to be obliterated. It’s easy to overlook a misspelling or a pluralization.”
Indeed, for Ball, the fact that someone used Sharpie to scratch out important details was less shocking than the fact that the mistake wasn’t flagged in a detection check before production.
Bingo! To me, that’s the main issue – nobody from legal apparently checked (or checked thoroughly) the redactions made by the custodian. There was a “call of duty” to QC the redactions (see what I did there?). 😉
Back in the 70s, Sony released the Betamax, which (for younger readers) was the precursor to VHS recording systems (if you’re really young, look up VHS recording systems). Even though Betamax was considered superior to VHS, it failed because it was more expensive than VHS and Sony refused to license the format to other companies.
This happened last week, but it could have easily happened in the 70s as well, considering the low-tech approach this high-tech company used to apply the redactions. Failure to redact within an eDiscovery solution or other software with redaction capabilities led to yet another redaction gaffe.
So, what do you think? Are you surprised we’ve seen yet another redaction gaffe in this age of technology? Please share any comments you might have or if you’d like to know more about a particular topic.
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