Court Approves ESI Protocol Permitting Parties to Redact or Withhold Irrelevant Information from Responsive Documents and Document Families

In a March 1, 2016 order and opinion, the United States District Court for the Southern District of Florida permitted Defendants to redact or withhold certain irrelevant information from responsive documents and document families in the Takata Airbag Products Liability Litigation. In re Takata Airbag Prods. Liab. Litig., MDL No. 2599 (S.D. Fla. March 1, 2016).

A special master had approved Defendants' proposal to redact or withhold certain irrelevant information from responsive documents and document families. The special master recommended that the producing party be permitted to redact information within responsive documents which related to seven categories of competitively sensitive information that were "deemed irrelevant." (Order at 2). The special master also recommended that the producing party also be able to withhold irrelevant parent documents.

On a de novo review of the special master’s report and recommendation, the court approved the special master’s report after modifying the seven categories of competitively sensitive information to exclude information concerning airbags.

Applying the recently amended Federal Rule of Civil Procedure 26(b)(1), the court reasoned that "a party is not entitled to receive every piece of relevant information," and that "[i]t is only logical, then, that a party is similarly not entitled to receive every piece of irrelevant information in responsive documents if the producing party has a persuasive reason for why such information should be withheld." (Order at 4). The court further found that the Defendants provided a persuasive reason for permitting the redaction of certain irrelevant information – that, even with the entry of a protective order, they would need to produce "copious" amounts of competitively sensitive information to their competitors and "perhaps to the media" to the detriment of each Defendant. (Order at 3, 4).

This opinion is important for two reasons. First, it is one of the first to apply the recently amended Federal Rule 26(b)(1) and recognize that the amendments "crystalize the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality." Second, it is one of the few opinions to offer meaningful guidance to parties that, even with the entry of a protective order, remain concerned about protecting sensitive information that is otherwise irrelevant to the litigation at hand.