In Nieves v Baptist Memorial Medical Group, No. 18-2748-JTF (W.D. Tenn. June 23, 2020), the Court granted Plaintiff’s motion to compel unredacted versions of documents.
The case was a class action contract and individual suit alleging a violation of federal anti-discrimination law. Plaintiff alleged that Defendant discriminated against him by, among others, withholding his pay, cutting his health insurance, and ultimately ending his employment agreement.
The parties disagreed about various discovery issues including the appropriate scope of Defendant’s ESI search. On the issue of search, the Court ordered the parties to meet and confer to explore various possible compromises. Since that process was ongoing, the Court did not decide any issues related to search in its ruling.
One of the remaining issues that the Court did rule on was related to the Defendant’s redactions and whether Defendant must produce unredacted versions of five documents that were not listed in its privilege log. According to a sworn declaration by Plaintiff’s counsel, he reached out to Defendant’s counsel five separate times to discuss the omissions on Defendant’s privilege log, but that Defendant did not substantively respond. In its response to Plaintiff’s motion to compel, Defendant contended that the documents were redacted because “they contain confidential and irrelevant information that bears no relation to the claims and defenses of this matter.”
The Court ruled, however, “to the extent Baptist is attempting to assert some form of trade secrets privilege or other privilege that might cover sensitive business documents, it waived such privilege when it failed to include these documents in its initial privilege log and when it did not substantively respond to five separate attempts by opposing counsel to discuss the omission of these documents from its privilege log.” Moreover, “[t]his is not the kind of exceptional case in which unilateral redaction is allowed. There is a protective order shielding sensitive business information in this case from improper disclosure. [Defendant] has not identified any reason why that order is insufficient to protect its interests. That alone makes relevance redactions improper.”
The Court also examined the breadth of Defendant’s redactions and cited as an example a five-page report from Defendant’s Medical Executive Committee which received Plaintiff’s request to be reinstated. Defendant redacted every part of that five-page report except for its heading, a single sentence noting that Plaintiff’s request was received, and some (but not all) of the document’s page numbers. The Court found that such redactions “are not small and do not allow a reader to understand what information has been redacted” and “inexorably raises questions about the document’s content.” Accordingly, Defendant was ordered to produce unredacted versions of every responsive document that was redacted for relevance.