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A black permanent marker was, in the recent past, the tool of choice to redact personal, sensitive, or privileged information in document production processes. Now, digital redaction tools are mostly used when producing documents in discovery, under subpoena, or during voluntary production or other information access request processes, writes Darren Gardner.
As we have often warned clients, including in recent client seminars, there are real risks of not properly using digital redaction tools. A recent case is a salient reminder.
In Yeates v Swire Shipping Pty Ltd [2026] FedCFamC2G 1643 (24 August 2026), Timothy Yeates, a self-represented litigant, was able to view “hidden text” in digital documents produced to him in litigation.
Yeates sought full “unredacted” copies of all documents, writing to the Court Registrar, “Noting the redactions do not appear to have been done particularly well to begin with”.
The respondent lawyers claimed the redacted text was subject to solicitor-client privilege. They applied for a permanent stay of the proceedings on public interest grounds because their right to a fair trial had been lost by Yeates reading legally privileged text.
The trial judge noted that where parties are legally represented, the usual course is to order the return of any privileged documents and require solicitors who accessed those documents to cease acting so that lawyers can be engaged to protect the integrity of the judicial process. This is because solicitors and barristers are officers of the courts and owe fundamental ethical duties to courts to maintain privilege and confidentiality. This course is not available in cases involving self-represented litigants who owe no such duties.
Yeates chose not to give any evidence in the interlocutory hearing. This meant there was no evidence to be cross-examined. The trial judge had limited capacity to consider the extent of breach or to learn with certainty how Yeates was able to look behind the redacted text. He was convinced, however, on the available evidence of significant breach by Yeates apparently “using an Adobe application to reveal hidden text.”
The trial judge said that “it is legal practice ‘101’ that, when sending documents, one should always convert them to PDF to ensure that, where amendments have been made, those amendments cannot be accessed through the ‘view and edit document’ function.”
In the age of black permanent markers, an extra precaution was to re-photocopy redacted documents to guard against self-represented litigants holding original hand-redacted documents up to the light to see redacted text in reverse underneath.
In the age of AI, it is also good practice to ensure PDF conversions remove all redaction metadata. This is because AI tools can quickly reconstruct hidden text from redaction metadata stored within digital documents.
Somewhat concerning, and less capable of protection, is the large language model power of AI to predict or guess with high statistical probability redacted text in documents. Protecting against such risks may call for only producing hard copy documents to court or tribunal registries for physical inspection only, with no copy or uplift orders.
There is also the real risk of self-represented litigants using general AI tools with no privacy or confidentiality settings to feed all your confidential and privileged documents into the public domain. Once in the public domain, privilege and confidentiality are lost forever. Serious legal ramifications could result from breaching confidential, privacy, health and sensitive information protection obligations.
Now more than ever, extra vigilance is needed to protect against those who may use the power of AI to reveal hidden text or to look behind redacted text in digital documents. Be on guard and prepared to take extra precautions.
Darren Gardner is a partner for workplace law and culture at Bartier Perry.
