TTAB Says Parties Cannot Unilaterally Redact Irrelevant and Confidential Information in Document Production

The TTAB recently granted a motion to compel production of unredacted versions of documents on the ground that redaction of information deemed confidential or irrelevant is contrary to liberal discovery policies.

The applicant redacted certain portions of its documents on the ground the information was irrelevant (i.e., pertaining to product lines not at issue) or confidential. In an attempt to allay the opposer’s concerns regarding the redactions, the applicant offered to let the opposer review representative unredacted documents. The opposer declined that offer and filed a motion to compel.

The Board found that the applicant’s redactions ran counter to the rules of discovery. Federal Rule of Civil Procedure 34 discusses production of “documents,” rather than paragraphs or sentences. And, according to the Board, redaction of otherwise discoverable documents is the exception rather than the rule for good reason. Quoting a federal district court, the Board stated:

Parties making such redactions unilaterally decide that information within a discoverable document need not be disclosed to their opponents, thereby depriving their opponents of the opportunity to see information in its full context and fueling mistrust about the redactions’ propriety. And if the Court were to allow such a practice it would improperly incentivize parties to hide as much as they dare. That is a result at odds with the liberal discovery policies, the adversary process, and the Court’s obligation to read the Rules ‘to secure the just, speedy, and inexpensive determination of every action and proceeding.’

Further, if such redaction were permitted, the likely result would be an increase in time and expense both to the parties and the Board. Not only would discovery disputes increase, but the Board would be required to conduct time-consuming in camera inspections of documents to rule on motions to compel.

The Board noted that its standard protective order was automatically applicable to the proceeding. If a party is concerned about confidential information, it should designate those documents under the appropriate tier of confidentiality. Alternatively, if parties believe the protective order is insufficient, they should seek modification of the order. The Board was careful to point out that its ruling “does not disturb or alter the Board’s jurisprudence that permits redaction of information under appropriate circumstances under the Federal Rules of Civil Procedure and Board rules and procedure, e.g., privileged information, customer names, and submissions to the Board that are not filed under seal as confidential but which contain confidential information.”

The case is Intex Recreation Corp. and Intex Marketing Ltd. v. The Coleman Company, Inc., Opposition No. 91220432 (TTAB Feb. 24, 2016).