The Redaction That Wasn’t: Contempt, Rule 37, and the Cost of a White Box

The case is a defamation suit in the Eastern District of New York, brought by a journalist who has worked in the video game industry against a San Diego-based content creator. In April the magistrate judge awarded the plaintiff her fees on two discovery motions and set a date for objections to the amount. On a Friday evening in May, defense counsel filed his letter objection. One of its exhibits was an email from plaintiff’s counsel giving wire instructions for their firm’s bank account.

The exhibit looked redacted. A white box bearing the word “REDACTED” sat over the account details, and the exhibit’s cover page said the bank account information had been redacted. It had not been. As the court later found, “the text is accessible by copying and pasting, or by clicking and moving the white box covering the text.”¹ By Sunday evening plaintiff’s counsel had filed an emergency motion with evidence that the account information was circulating online, posted by a nonparty. The court sealed the filing that night.²

The motion that followed asked for two things: that the magistrate judge certify facts to the district judge for civil contempt, and that she impose sanctions. In September she declined the first and granted the second, ordering defense counsel personally to pay $2,316.³ The two rulings rest on different questions, and the gap between them is the most useful thing in the order. A second order in the same case, decided two weeks later by the district judge on a different defect in the same filing, makes the point from the other direction.

IA redaction is a deletion

The mechanics are not in dispute, and counsel described them himself at the hearing. He told the court that “[t]he original document that I filed had a redaction over it but . . . the document . . . was not flattened.” He added that “[i]n my haste to get the [document filed] I didn’t double check as is my usual practice to make sure that not only was the information covered[,] but was also removed as metadata or other accessible data from the PDF document.”⁴

Covered, but not removed: that is the whole failure. A box drawn over text in a PDF is an object laid on top of the page. Unless the characters underneath are actually deleted, they stay in the file, where anyone who tries can select them, copy them, or find them by searching. Counsel’s word for the missing step was “flattened.” Whatever the software calls it, the test is not whether the information is hidden from the eye. It is whether the information is gone from the document.

Notice, too, what did not help. The exhibit page carried the legend “Bank account information redacted”. A label is a statement that the work was done; it is not the work. The label and the white box turned out to matter a great deal to the contempt question, but as evidence of what counsel had tried to do, not of what he had done.

IIWhy there was no contempt

The contempt request reached the magistrate judge in the form the Federal Magistrates Act prescribes for conduct in a proceeding before her: she does not adjudicate the contempt; she decides whether to certify the facts to a district judge. Her role, as the order puts it, is “to investigate whether further contempt proceedings are warranted and to certify facts, not to issue a contempt order.” The question at that stage is “whether the moving party can adduce sufficient evidence to establish a prima facie case of contempt.” The decision not to certify is not a formality. Where the magistrate judge declines, the “district court may not proceed further on a motion for contempt where the conduct at issue occurred before a magistrate judge.”⁵

For violation of a court order, the prima facie case has three elements: “(1) the order is clear and unambiguous, (2) proof of noncompliance is also clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner.” Each must be established by clear and convincing evidence, although willfulness is not required. And, in language the order takes from the Second Circuit, “[t]he failure to meet the strict requirements of an order does not necessarily subject a party to a holding of contempt.”⁶

The first two elements were not in dispute. The protective order in the case barred filing materials marked confidential on the public docket, and defense counsel did not contest that the order and the proof of his noncompliance were clear. He contested only the third element: he had been reasonably diligent in attempting to comply.

The court agreed. It credited counsel’s explanation that he “diligently attempted to redact the information but ultimately made a mistake.” It treated the white box and the cover-page label as evidence of that attempt. And it relied on a 2019 decision from the same district that declined to certify contempt, despite an “utter failure to exercise reasonable diligence” in handling protected information, where the attorneys had taken immediate responsibility and had otherwise been diligent in trying to comply with the confidentiality order. Counsel here had likewise admitted his mistake promptly. The conclusion is worth having in full:⁷

While the mistake reflects some carelessness on Defense counsel’s part, his initial attempt to redact the information and immediate acceptance of responsibility for his error leads this Court to conclude that Plaintiff has not carried her burden of demonstrating by clear and convincing evidence that Defense counsel was not reasonably diligent in attempting to comply with the Protective Order.

A reader may find it strange that a redaction which failed completely can count as diligence. The explanation lies in what the third element measures. It asks whether the contemnor “diligently attempted to comply in a reasonable manner.” That is an inquiry into effort rather than outcome, and the burden is on the movant to disprove the effort by clear and convincing evidence. A visible, labelled attempt followed by a prompt admission is hard to overcome on that standard. The result is defensible, and the order is careful to call what happened “some carelessness” rather than to excuse it.

IIIWhy counsel paid anyway

Having rejected contempt, the order turns in a single sentence to a different source of authority: “While the elements of contempt are not met, ‘failure to abide by a protective order is sanctionable under Rule 37.’” The failure had concrete consequences. The bank account information of plaintiff’s counsel’s firm had been posted publicly and circulated online by a nonparty, and plaintiff’s counsel “had to address the emergency over the weekend and incurred costs to mitigate the potential risks of public disclosure of sensitive financial information.” Rule 37(b)(2)(C), in the order’s words, “provides that the Court must order the sanctioned party to ‘pay the reasonable expenses, including attorney’s fees, caused by the failure’ to comply with a court order.”⁸

The shift is from fault to causation. Diligence was the whole of the contempt analysis; it plays no part in this one. The question is no longer whether counsel tried hard enough, but what his failure cost the other side and whether the expenses claimed were reasonable.

That is not a technicality. The two inquiries do different jobs. The contempt inquiry, as the order frames it, is hedged about with a clear-and-convincing burden, a diligence element, and a certification step that ends the matter if the magistrate judge declines. The Rule 37 inquiry asks what the violation of a court order caused and who should bear it. On the order’s logic, the lawyer who violated the protective order pays for the cleanup, however blameless he may be in the contempt sense, and the lawyers whose bank account was exposed do not.

IVMeasuring the bill

If the liability half of the order is brisk, the damages half is exacting, and it is the half a movant should study. The plaintiff sought $5,042.05 for “data breach mitigation” services by the firm’s outside accountant, almost all of it for 19.29 hours billed at $260 an hour across ten business days.⁹ The court cut the claim by more than half.

The rate. The person who did the work is an attorney, but plaintiff’s counsel described them as the firm’s accountant and financial manager, and no one claimed they had provided legal services in the matter. As the court read their declaration, the work was “similar to work performed by an accountant or legal support staff.” The court therefore priced it as accountants’ work, which in that district is “typically awarded hourly rates consistent with those set for legal assistants.” It reduced the rate to $150. The function performed, not the license held, set the price.

The hours. The invoice’s time entries carried only three category codes: “Fact gathering/due diligence,” “Structure/strategy/analysis,” and “Transactional advice and opinion.” Even after a supplemental declaration, the court could not tell how much of the time had gone to the risk the filing created. The plaintiff’s own evidence also worked against the claim. Plaintiff’s counsel had declared that they knew of “no one who could have worked faster with our bank to shut down every risk, who would know exactly what vectors of risk existed, and who could bring that knowledge together to essentially shut off major risks within 24 hours.” Taking that at face value, the court assumed the account was closed soon after May 10, which made the later days of billing hard to justify. Some of the later time had gone to “new security protocols,” and the record did not show whether those responded to this breach or guarded against the next one. The court applied a 20 percent across-the-board cut, leaving 15.44 hours.¹⁰

The costs. A $26.65 postage charge was disallowed for want of a receipt or other documentary proof. The award came to $2,316.00, which is 15.44 hours at $150, payable by defense counsel personally within fourteen days. It did not include attorney’s fees for bringing the motion: the parties had consented to transfer the case, and the plaintiff agreed to seek any such fees in the transferee court.¹¹

For the party on the receiving end of a leak, the lesson is the mirror image of the filer’s. A Rule 37 award is only as good as the proof behind it: contemporaneous, task-level time records; work tied to the breach rather than to general improvements; receipts. A motion that wins on liability can still lose much of its value on the invoice.

VOne filing, two answers

The letter that carried the unredacted exhibit had a second problem. The parties agreed it contained five mis-citations, and one of them, to A.M. v. City of New York, 2022 WL 17543173, was a case that does not exist. The plaintiff had asked the magistrate judge to issue an order to show cause about defense counsel’s use of generative AI. When she declined, the plaintiff appealed, and District Judge Margo K. Brodie called the citation “a hallucination: this case does not exist and is fictitious.” Counsel had explained that he used a Westlaw AI tool to identify cases and took their propositions without confirming them. The court found that he had violated Rule 11.¹²

Yet no sanction followed. The court’s answer was short: “When Rule 11 is violated, sanctions are discretionary rather than mandatory.” The magistrate judge’s choice to warn counsel rather than sanction him was within her discretion. The court also rejected the premise that the opposing party is the natural beneficiary of a Rule 11 sanction. In fashioning one, it said, “courts focus not on compensation for the aggrieved party, but on the deterrence of baseless filings and the curbing of abuses.” A monetary penalty is ordinarily payable to the court, not to the opposing party. The plaintiff, it noted, had never asked for attorney’s fees on the citation issue. Having reviewed all twenty-two of the defendant’s filings at the plaintiff’s urging and found nothing beyond what the plaintiff had already identified, the court was openly impatient with the breadth of the request. It added that its ruling “is not an endorsement or approval of defense counsel’s actions.”¹³

Put the two orders side by side, and the same Friday-evening letter produced opposite answers on money. The leaked bank details cost their author $2,316, under a rule that, as the magistrate judge applied it, requires payment of the expenses that a violation of a court order causes. The fabricated case cost him a warning, under a rule whose sanctions are discretionary and aimed at deterrence. That is not inconsistency; it is how the two rules are built. Read together, the orders suggest a working distinction. When a violation of a court order has caused a concrete, documentable expense, Rule 37(b) functions as a compensation mechanism. When the injury is the burden of answering a bad filing, the court’s discretion governs and compensation is not the point.

With both motions decided, the district court lifted the stay it had placed on its July order transferring the case, on consent, to the Southern District of California. That is where the plaintiff has agreed to pursue any attorney’s fees for the redaction motion.¹⁴

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The question the case poses is whether a negligent redaction failure should carry a monetary sanction when counsel acted diligently, both in attempting the redaction and in owning the error once it surfaced. In the Editor’s view, the order’s answer is the right one, and it begins by declining to treat that as a single question. Diligence is the currency of the contempt inquiry, and here it bought counsel what it should have: no certification, and so no contempt. It is not a defense to paying for the damage. Someone has to bear the cost of a weekend spent shutting down a bank account. As between the lawyer who filed the document and the lawyers whose account it exposed, the answer is not difficult.

Both failures in that letter were, at bottom, the same failure: the last check before filing was skipped. Counsel said as much about the redaction, conceding that he did not “double check as is my usual practice” before filing. The district judge said it about the citations: counsel “should not have filed ECF No. 88 with the Court before cite-checking his own work”. The only difference lay in what each omission cost, and in who was entitled to be paid for it. §