Magistrate Judge David Waxse’s Williams v. Sprint/United Mgmt. Co. opinion in 2005 was likely the first to address the challenges of redacting spreadsheets. The discovery disputes in the Williams I opinion included 1) an order to show cause why metadata was scrubbed from spreadsheets; 2) the need for redaction of Social Security Numbers; and 3) the Court-ordered production of unlocked cells in non-privileged sections of spreadsheets in native format.1 In the resolution of one issue in that case, the Court held that the producing party could remove metadata directly corresponding to the privileged information that was redacted. For a complete summary of the issues in Williams I, K&L Gates has excellent analysis of the opinion on their Electronic Discovery Law blog.
Courts and litigants have grown more sophisticated with ediscovery opinions since the days before the 2006 and 2015 Amendments to the Federal Rules of Civil Procedure. Nevertheless, spreadsheets can still be a challenge in litigation. Read on for an analysis of cases where spreadsheets were at issue in discovery and how attorneys can review review and redact spreadsheets in Everlaw.
Useable Discovery with Redacted Information
In one recent case, a Court ordered the production of ledgers and spreadsheets with accounts payable information for a three-year period of time, with the names of everyone but the plaintiffs redacted.2 The case management order in another lawsuit over false labeling on food products required spreadsheets—along with presentations and multimedia files— to be produced in native file format. However, the producing party could redact “TIFF image, metadata field, or native file material” that had privileged information.3
The big questions are often “how” and “what” to redact in a spreadsheet. In a New York case pertaining to a Freedom of Information Act request on telecom information regarding net neutrality, the respondent (producing party) produced a spreadsheet that 1) did not explain headings and 2) made redactions that made it impossible to understand the un-redacted information.4 The Court ordered the respondent to produce a spreadsheet that was focused on underserved communities for high speed Internet, with high-risk endpoints and switching hubs redacted.
Parties producing spreadsheets that require redaction need to consider the impact of removing formulas from cells on the results within a spreadsheet. It is extremely wise for this topic to be discussed at a meet and confer in cases where spreadsheets are key discovery in a case. Attorneys should reach an agreement on how formulas will be handled in such situations.
Form of Production of Spreadsheets
Parties prefer spreadsheets to be produced in native file format, so formulas can be analyzed, and the data truly understood. However, many attorneys prefer producing any redactions on spreadsheets to first require conversion to a static image, which eliminates all the underlying metadata and formulas.
Everlaw’s new spreadsheet redaction feature allows attorneys to redact spreadsheet columns, cells, or dependent cells. The feature works by selecting the area to be redacted and moving the cursor over the cells or column. The redacted areas are then branded with a confidentiality designation, in order to comply with the requirements for specific objections for withheld information and privilege logs under the Federal Rules of Civil Procedure.
There are three options for redacting cells with a value that is used to calculate the value of another cell (thus making it a dependent cell). Attorneys can choose to 1) redact the dependent cells completely; 2) replace the cells with a formula; or 3) keep the cells’ original values. The option that is chosen, will be applied to all dependent cells. It is a best practice to reach an agreement with the opposing party about how this should be handled in a case, so relevant information is not lost, while privileged information is protected.
Consider the example of accounts payable spreadsheets needing to be produced with all customer names redacted, except the plaintiffs. In that situation, the first step is searching within the spreadsheet to find the plaintiffs’ names. Everlaw’s redaction tool can be used to redact the entire column of names, minus the plaintiffs’ responsive information.
In the false labeling on food products lawsuit, the case management order clearly stated that the producing parties could redact “metadata field or native file material” for privileged information. Reviewing attorneys could search within the spreadsheet for known privileged information within spreadsheets and perform redactions immediately with confidentiality designations.
Upon completion of redactions in either example, attorneys can produce the spreadsheets in native file format with confidentiality designations over the redacted columns or cells.
This was the heart of the redaction issue in Williams v. Sprint in 2005. What was extremely complex and subject to protracted motion practice over ten years ago, can now be performed as standard operating procedures within Everlaw.
1See, Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 645-46 (D. Kan. 2005), (Williams I) and Williams v. Sprint/United Mgmt. Co., 2006 U.S. Dist. LEXIS 101071, at *24-25 (D. Kan. Dec. 12, 2006), (Williams II).
2Bio-Behavioral Care Sol., Ltd. Liab. Co. v. Doctors Behavioral Hosp., Ltd. Liab. Co., No. 14-14123, 2017 U.S. Dist. LEXIS 87947, at *2 (E.D. Mich. June 8, 2017).
3Martinelli v. Johnson & Johnson, No. 2:15-cv-01733-MCE-EFB, 2016 U.S. Dist. LEXIS 53146, at *8-9 (E.D. Cal. Apr. 13, 2016).
4Crawford v. N.Y.C. Dep’t of Info. Tech. & Telecoms., 2017 NY Slip Op 30982(U), ¶¶ 5-6 (Sup. Ct.).