By Cynthia Courtney, Esq., VP, Advisory and Engineering Group

“Mr. Clemens, you’re free to go.”

The government has now struck out after three expensive attempts to convict Roger Clemens of using performance-enhancing drugs.

Federal court submissions in the perjury trial of former Major League Baseball player Roger Clemens, illustrate the importance of using careful practices when filing court documents in order to avoid embarrassing disclosures of information. Last month, important information about the prosecution’s key witness against Clemens appeared in an unredacted document filed with the court. The defense wanted to use this damaging information to impeach the credibility of the witness, Brian McNamee, who claims that he injected Clemens with anabolic steroids.

The Case

Clemens—nicknamed “The Rocket”— is a former pitcher who played 23 seasons in Major League Baseball for four teams. One of the most dominant pitchers in major league history, he accumulated 354 wins, a 3.12 earned run average, and 4,672 strikeouts. He was a two-time World Series champion and won seven Cy Young awards, the most of any pitcher. Clemens is best known for a fierce pitching style that intimated batters.

In 2010, Clemens was indicted for perjury in connection with statements made to Congress denying that he used performance-enhancing drugs. The 2008 Mitchell Report stated that Clemens used anabolic steroids late in his career. The conclusion was based primarily on testimony by McNamee, Clemens’s former trainer. Clemens pled not guilty, and went to trial in the summer of 2011. In July of that year, Clemens’s first trial ended abruptly after two days. U.S. District Judge Reggie Walton angrily declared a mistrial when the government inadvertently allowed the jury to see statements made by U.S. Rep. Elijah E. Cummings discussing the credibility of key witness and former teammate, Andy Pettitte.

Redact Disaster

This spring, Clemens went to trial a second time. The Washington Post reports that his defense is based on the contention—supported by the testimony of high school and college teammates—that his achievements are the result of a strict work ethic, not performance-enhancing drugs. In April, a dispute arose over the admissibility of evidence pertaining to McNamee. A motion in limine was filed by the prosecution seeking to exclude the information, found in sealed records relating to McNamee’s divorce. The defense filed a motion seeking to use the material. Judge Walton ordered that both motions be sealed until after jury selection, and later ordered both sides to re-file their papers, unsealed but redacted to exclude information from the divorce records. The defense’s papers, however, were filed as a Word document. Certain highly inflammatory provisions of the document were masked by a black redaction box, but when the box was cut and pasted into another word document, the provisions became visible.

According to Newsday, the redacted portions of the motion involve statements by McNamee’s ex-wife that “he ‘secretly gained entry’ into her home, that he had a substance abuse problem at the time he said he was injecting Clemens with steroids and that he was involved in prescription drug fraud and distribution.” Now, of course, this information is public.  Fortunately, this information did not waver the jury as this past Monday, Clemens was acquitted on all accounts.

This isn’t the first time redacted portions of a document were visible after the document was filed and became available on Pacer. In 2008, plaintiffs in a $500 million employment lawsuit against General Electric filed a document in federal court in Connecticut that likewise revealed information intended to be hidden. In that situation, the problem stemmed from using a particular version of Adobe Acrobat and trying to redact the document directly in the Adobe program.

Conclusion

With a careful workflow and use of established practices, an embarrassing and possibly costly mistake will be avoided.

A division of the National Security Agency has published this guide to redacting documents in Adobe Acrobat Professional X. The directions pertain to redaction of a PDF, but are applicable to redaction of a Word document.