Can a Defendant Unilaterally Redact Info It Deems Irrelevant from a Production?
In response to the plaintiff steering committee’s discovery requests in the multidistrict litigation In re: Stryker Rejuvenate and ABGII Hip Implant Products Liability Litigation (D. Minn. June 20, 2014), Defendant produced 3,400 documents of which 1,932 were redacted. Defendant produced a privilege log, but Plaintiff contended that this redacted information was not privileged, but rather was simply material that Defendants unilaterally deemed “irrelevant.”
The court first looked to the Protective Order governing discovery in the MDL. There was nothing in the Protective Order that permitted either party from unilaterally redacting information from responsive documents.
Next, the court considered whether the Federal Rules of Civil Procedure allowed such action. The court cited F.R.C.P. 26(c), which states if a party believes a Protective Order is inadequate to protect from annoyance, embarrassment, oppression or undue burden or expense, the proper procedure is to seek a modification of the Protective Order. In this case, instead of following the procedures outlines in FRCP, the Defendants took it upon themselves to deem what information was relevant or not. This was in contravention of the Protective Order governing discovery in the case as well as the Federal Rules.
The Court noted that any info that is properly redacted due to attorney-client privilege or work product and is properly described in the privilege log was not included in this order. Any other redactions, made solely because Defendant themselves deemed the information to be irrelevant, must be reproduced in its entirety.