It is well established that parties to proceedings are entitled to redact documents, often to protect third parties or commercially sensitive information, and there is no automatic right to see the whole document unredacted.
The party seeking inspection of an unredacted document must be able to identify particular reasons as to why the document should be made available. It is not enough to simply wish to see the unredacted document, as per Hedigan J in IBRC v Halpin.
Dancing in the moonlight
In that case, the defendant did not know what was behind the redactions, but nonetheless wished to view the documents in their entirety, so as to consider whether they were relevant or helpful to his defence.
It is important to note that the burden rests on the party seeking inspection to prove the necessity of full disclosure for the fair disposal of the action.
When reasons for redaction are presented to the court, the court can then inspect the documents to decide whether the redaction is, in fact, justified or not.
In appropriate cases, the court will balance the interests of parties by subjecting inspection to an implied undertaking that the unredacted material, once disclosed, will not be used by the other party for any collateral purpose, other than the current proceedings.
Are you ready
In Maye v ByrneWallace, a settlement agreement was sought to be inspected by the defendants.
The plaintiff acknowledged that the defendant was entitled to inspect the settlement agreement, but asserted her entitlement to redact parts of it, on the basis that this material was unnecessary for the fair disposal of the proceedings and for the saving of costs.
The plaintiff further contended that the information was confidential and would provide the defendants with an unfair tactical advantage in conducting the proceedings.
Ms Justice Kennedy held that the court must engage in a balancing exercise to reconcile the interests of each party and, in certain instances, take steps to mitigate loss of confidentiality. In ordering inspection of the redacted information, Kennedy J attached a condition that the names of the co-obligors were not to be mentioned in pleadings or open court.
The disclosure of the information in this case was confined for use in the proper conduct of the proceedings, and not for any collateral purpose.
Got to give it up
In Courtney v OCM Emru Debtco DAC & David O’Connor, the defendants objected to full disclosure on the grounds of commercial sensitivity, confidentiality, and lack of relevance. Haughton J considered that the general thrust of article 34.1 of the Constitution should be borne in mind by the court when considering whether to permit redactions, and to what extent.
It was highlighted in the judgment of the court that the right to redact was being regularly abused, and that the court would be vigilant in avoiding such abuse.
The judge was satisfied that “understanding the loan sale deeds as a whole [was] relevant to the plaintiff’s pleaded claims, and this [was] unfairly impeded by the redactions”.
The court was also critical of the redactions in this case on the basis that they appeared to have been led by the client, rather than by the lawyers, which should not be the case.
The court ordered inspection of the documents to be limited to the plaintiff, her solicitor and counsel, on her undertaking on oath that she would not use any of the documents or information otherwise than for the purpose of the action, and, further, that the plaintiff would not use or mention commercially sensitive information outside of the proceedings.
The fact that the plaintiff was not a competitor was also a factor in the court’s decision.
Waiting for an alibi
Recently, in the case of Little v IBRC, the plaintiffs sought orders directing the second-named defendant to allow inspection in unredacted form of (a) the loan sale agreement between the first and second-named defendant, and (b) the deed of transfer between the first and second-named defendant.
These documents were listed in an affidavit of discovery sworn on behalf of the second-named defendant. The plaintiff served a notice to produce, pursuant to order 31, rule 16 of the Rules of the Superior Courts.
The plaintiffs alleged that Irish Nationwide Building Society had its loans transferred to IBRC (the first-named defendant) in 2011. It was the plaintiffs’ case that the transfer of their loan to the first-named defendant breached a written commitment to replace a bridging loan with a long-term loan.
After the commencement of these proceedings, the plaintiffs’ loans were transferred to Launceston, the second-named defendant.
Jailbreak
The plaintiffs contended that inspection was necessary to appreciate the terms and conditions of the transfer of their loans to the second-named defendant.
Further, they argued that it was necessary for the plaintiffs to know whether their loans were transferred by the second-named defendant with actual or potential knowledge that it breached a written commitment.
The explanation given for redactions in the affidavit of discovery was that the documents contained information that was commercially sensitive and confidential, relating to loans that were not the subject matter of the proceedings.
O’Connor J expressed difficulties in interpreting the documents without any explanation or detail as to why the information had been redacted.
The court held that: “It is about time that the party who redacts extensively carries out the duty to categorise and explain, without burdening the court or other parties in the proceedings.”
Bad reputation
The court was of the view that extensive redactions, rather than minimal redactions, had become a regular occurrence.
Noting that the burden lay with the party seeking inspection to show the necessity of full disclosure, Mr Justice O’Connor directed the defendants to categorise the redactions on affidavit, and to provide explanations for each redaction.
He further directed that the defendants’ averments should not simply involve bald assertions of irrelevance, confidentiality, and commercial sensitivity. The averments would, instead, involve a description as to why each substantial redacted portion was irrelevant and/or confidential.
Of note is paragraph 46 of the judgment, wherein it was held: ‘‘This order may appear to deviate from the practice adopted by IBRC and others who have relied upon GE Capital. However, the time has come for the court to order and guide the parties in this and future applications for uncovering substantial redactions of discovered documents.”
The boys are back in town
As apparent from the case law, the courts have become increasingly wary of bald assertions seeking to justify extensive redactions.
While undoubtedly the burden remains on the party seeking inspection to satisfy the court of the necessity to lift the redactions, Little v IBRC highlights what appears to be a shift in tolerance away from bald or blanket assertions. What would now appear to be required is a clear explanation from the redacting party.
