Well, it’s happened again.
A major law firm has exposed secret information because it did not properly redact a court filing.
It is the oldest screw-up in the technology book, yet it happens with surprising frequency and by lawyers who you might think should know better.
It happened earlier this year to defense lawyers for Paul Manafort. It happened in 2017 to attorneys at the U.S. Department of Justice in a Libor-rigging case against a former Deutsche Bank trader.
This time, it was lawyers at the law firm Jones Day, who, as The National Law Journal reported, failed to properly redact secret grand jury testimony in a public filing in federal court.
After a reporter discovered the error and a magistrate-judge asked the firm to explain itself, Jones Day responded with a letter to the court that is a masterpiece in the use of lawyerspeak for defensive obfuscation — even attempting to shift blame to the reporter who discovered the error by accusing him of “exploiting a technical weakness.”
Of course, not everyone is so proficient in lawyerspeak. So, as a public service, and as someone who follows the trials and tribulation of lawyers’ technology competence and incompetence, I offer this annotated version of the Jones Day letter, in which I translate the lawyerspeak into everyday language that conveys what I think they really meant to say. The annotations are in italics.
We respectfully submit this letter in response to the Court’s Order to Show Cause dated September 11, 2019, which directed counsel to file a written explanation regarding the redaction error in the Reply Memorandum filed in Support of Defendants’ Motion to Dismiss. (Please, please, please, Your Honor, let us off the hook.)
We assure the Court that we redacted information in the Reply Memorandum related to the grand jury proceedings in good faith. (Come on, Your Honor, at least give us points for thinking we were doing it right.) In fact, multiple members of the defense team (it wasn’t just me — none of us had any idea what we were doing) reviewed the redactions several times (they sure looked black) prior to filing to make sure grand jury testimony was redacted (we all saw black blotches right there on the page). In the redacted form filed with the Court (In the unredacted filing that we thought we’d redacted), the redacted (unredacted) portions were in fact “blacked out,” (did I mention that they looked really, really black) whether examined in electronic form or printed on paper (black everywhere we looked), in the ordinary course (as we quickly glanced over them). Unfortunately (for us), we learned that a reporter (fake news) was able to defeat this redaction process (let’s shift attention by blaming the messenger) by exploiting a technical weakness (by exposing our technical weakness), as we understand it (as we still have no idea), by copying and pasting the redacted text from the filed version on ECF into a new document (by performing some sort of hocus pocus) that enabled the reporter to view the redacted text (we’re hoping, Your Honor, that you’re as ignorant as we are about redaction and that you also hate the news media). This technical weakness (a/k/a our incompetence) in the redaction process (or lack thereof) was caused by the method of redaction (I mean, we didn’t cause it, it was the technology’s fault), which involved Microsoft Word and printing to Adobe Acrobat (the only two software programs I can name), rather than redaction software our law firm has in place (has anybody seen those black Magic Markers?) that is specifically designed to avoid such issues (surely we have something, right?). The failure to use this software was an inadvertent oversight. (I know those Magic Markers are here somewhere.) The error was not apparent from the face of the filing, (did I mention it looked black – like to all of us?) which appeared fully redacted (like, very, very black), and thus the error (our error) was not detected during review (because we had no f@#%ing idea what to look for).
In addition, as soon as possible after we learned of the error (as soon as possible after we realized we’d f@#%ed up), counsel notified the Court to remove the defective filing (we went into full CYA mode) and provided a replacement filing with proper redactions (fingers crossed). We also took steps internally to mark and sequester the improperly redacted version (it’s now in my very bottom drawer, under my box of business cards) to avoid any further dissemination of that version (which, by the way, does look very, very black). All current members of the defense team have been instructed to use the appropriate redaction for all future redacted filings (because we never thought to train them in that before), all new lawyers who may work in this matter will be instructed to use this redaction software (we’ve ordered two dozen black Magic Markers), and any lawyer currently on the team (assuming we don’t get fired), or who joins in the future (who replaces us in the future), who is not familiar with the redaction software (you know, not the Word to Acrobat one but the other thingy) will receive training on its proper use prior to filing any redacted pleading (as soon as we find someone who knows how to work the darn thing). Additionally, the senior lawyers on the team (the lawyers who are too stuck in their ways to learn what the f@#% redaction even is) will make certain (have their secretaries make certain) that all future redactions in this matter are made with the proper software (as soon as we figure that out) to avoid such issues in the future (because if we do this again, we’re screwed).
Lastly, we would like to advise the Court that while our co-counsel at Gentry Locke electronically filed the pleading at issue, the redaction process for that pleading was entirely the responsibility of Jones Day. (Let’s throw a bone to the Gentry Locke lawyers so they don’t sue us. Did I mention it really looked black?)
We very much regret that this incident occurred (that we f@#%ed up so royally) and can assure (try to convince) the Court that it will not happen again. (Even though it looked so black.)