Tag Archives: redaction

Don’t let Redaction drive you to Distraction

It is surprisingly common to hear that a party has uplifted documents produced under subpoena only to find that large chunks of them have been redacted.

The producing party it seems has taken it upon itself to decide whether the information is sensitive or otherwise not relevant to the proceedings and acted accordingly. Extremely annoying! 

In these circumstances, I suggest citing the decision of Fagan J in LG v Brian Brock as executor of the estate of the late Leo Clarke [2016] NSWSC 323 along with some polite advice that such choices are the domain of the Court and not the subpoena recipient. If that fails, get a motion on seeking to have the documents produced in their unredacted form.

In LG, the plaintiff alleged certain historic abuse had been committed against her by a priest and sought documents from various parties under subpoenas directed at information revealing any other complaints made by others against said priest.

The producing parties redacted the name and contact details of certain persons mentioned in the documents on what appeared to be the basis of relevance. The gravamen of the relevance objection argued in Court (and the basis for the unilateral decision to redact before production) appeared to be that the persons that would otherwise have been identified had made complaints only after the period of alleged molestation suffered by the plaintiff.

His Honour was unconvinced, explaining that on broad principles of relevance as they relate to subpoenas (ie. adjectival relevance), it is clear that the redacted details could well for example, lead to evidence being given by the unrevealed persons such as complaints made to the defendant by persons other than from themselves (eg. their parents, teachers and the like).   

There was also passing reference in the judgment to a line of decisions that appeared to support redaction of documents when they are produced under discovery. His Honour found however that this did not apply by analogy to subpoenaed documents, as the addressee parties argued it should.

His Honour did envisage circumstances where it may be appropriate to redact documents before they’re produced under subpoena (eg. if the part revealed a “protected confidence” under s126B of the Evidence Act 1995), but the producing party may only do so with the Court’s imprimatur via exercise of its discretion under UCPR (NSW) 33.8; the same rule that empowered it to rule that the documents in LG should be produced in their unredacted form.

None of this is earth shattering stuff I suppose but useful to have in your kit bag all the same.    

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Filed under Civil, notices to produce