To redact or not redact ?- That is the question

 

UPDATE ON REDACTION IN DISCOVERY – EXPLANATION REQUIRED

Redaction in discovery can be the source of further contention between parties to litigation especially when that redaction of documents is significant. There is no automatic right to see the whole document and the right to redact is well enshrined for a variety of reasons to include confidentiality, commercial sensitivities or perhaps if the information is regarded as irrelevant.

The burden is on the party seeking to remove the redaction to prove why same is necessary. However, there has been a slight shift in focus arising out of a recent High Court case.

Little v IBRC (2019)

The recent High Court decision in Little v IBRC has brought some interesting focus on the issue of redaction. The case involved the transfer of loans and the reason for redaction of documents, the subject matter of the discovery application, was because the documents contained information that did not relate to the loans in the case.

Mr. Justice O’Connor directed that the party relying on the redaction must categorise the redactions on affidavit and provide explanations for each redaction. The affidavit must contain a description grounding the position that parts redacted were irrelevant and/or confidential.

The court appeared to shift some of the focus on the party who was required to give a clear explanation on why the redaction is present as opposed to general assertions under broad headings as outlined above.

OUTCOME

Although the burden remains on the party seeking to remove redaction to show why it should be lifted, this decision does provide some relief to parties frustrated by general or broad arguments by the party who has redacted the documents. Equally, the redacting party should be careful in redacting and ensure that a clear explanation can be given to court.

If you have any queries on this or any aspect of litigation, please contact Niall MacCarthy or Brendan Dillon on info@dillon.ie or by telephone on 01 2960666.